UT 282 Victoria Pty Ltd v Willoughby City Council

The Subject Site and Proposed Development

1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 July 2020 and 3 August 2020. I have presided over the conciliation conference.
2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision involved granting leave to rely on amended plans, upholding the written requests to contravene three distinct development standards pursuant to cl 4.6 of the of the Willoughby Local Environmental Plan 2012 (WLEP 2012), upholding the appeal and granting development consent to the development application subject to conditions of consent and costs pursuant to s 8.15(3) of the EPA Act.
3. The amendments to the development application relate to seeking consent for the conversion of the existing commercial building only at 282 Victoria Avenue, Chatswood, to shop top housing, to retain and adapt the existing building for use as a mixed use development containing ground level, Level 1 and Level 3 retail and business premises, with three levels (Levels 4, 5 and 6) of residential units, above parking for 35 cars, internal building works, changes to the building facades, and the construction of a landscaped, open space area on the roof top, with an easement for light and ventilation (over 284 Victoria Avenue, Chatswood), at 282 Victoria Avenue, Chatswood (Proposed Development). The site the subject of the original DA was Lot 1, DP 560914 and Lot 2, DP 549245 and known as 282-284 Victoria Avenue, Chatswood however the DA as amended is limited to only to the site legally known as Lot 1 in Deposited Plan 560914 and is known as 282 Victoria Avenue, Chatswood (Site).
4. 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. The parties' decision involves the Court exercising the function of determining the proceedings under s 4.16(1) of the EPA Act.
5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. Owners consent 2. Permissibility 3. Clause 4.6 of the WLEP 2012 exception to three development standards being: 1. Height of buildings, cl 4.3 WLEP 2012 2. Exceptions to height of buildings, cl 4.3A WLEP 2012 3. Floor Space Ratio, cl 4.4 WLEP 2012 1. Flood planning, cl 6.3 WLEP 2012 2. Active street frontages, cl 6.7 WLEP 2012 3. Consideration of land contamination, cl 7, State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) 4. Consideration of advice of any design review panel, clause 28(2), Statement Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) 5. Design verification, cl 50(1AB) Environmental Planning and Assessment Regulation 2000 (Regulation) 6. BASIX Certificate, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Regulation 7. Sydney Harbour Catchment, cl 3, Sydney Regional Environment Plan (Sydney Harbour Catchment) 2005 (SREP)
6. The parties explained how the jurisdictional prerequisites have been satisfied as follows: 1. Owners consent: The Applicant is the owner of the Site and the DA was made with the consent in writing of the owner of the Site. 2. Permissibility: The Site is Zoned B3 Commercial Core under the WLEP 2012. The Site is also within Area 5 of the Special Provisions Area Map - sheet SPA_004 within the WLEP 2012. The Proposal is for the purpose of shop top housing as defined under the WLEP 2012. Shop top housing is permissible with development consent on the Site pursuant to Clause 2.5 - Additional permitted uses, relevantly, which may be carried out with development consent in accordance with the conditions specified in Schedule 1 in relation to that additional permitted use. Schedule 1 Item 31 provides: Use of certain land at Victoria Avenue, Chatswood (1) This clause applies to land at Victoria Avenue, Chatswood, being "Area 5" on the Special Provisions Area Map. (2) Development for the purpose of shop top housing is permitted with development consent if the ground level and first level of the development are used for the purpose of retail premises or business premises. 1. In relation to the cl 4.6 exception to the development standards the parties rely on the written request prepared by Boston Blyth Fleming dated 31 July - Revision 1 (the Request) as annexed to the signed section 34 Agreement. The Request includes 3 signed attachments the first addressing the relevant criteria of cl 4.6 in relation to height of buildings development standard (cl 4.3 of WLEP 2012), the second addressing the relevant criteria of cl 4.6 in relation to the exceptions to height of buildings development standard (cl 4.3A of WLEP 2012) and the third addressing the relevant criteria of cl 4.6 in relation to the floor space ratio development standard (cl 4.4 of WLEP 2012). I consider this in more detail in my reasons below. 2. Flood planning, cl 6.3 WLEP 2012: The parties correctly identify that the Site is within the Scotts Creek Flood Study catchment area. Clause 6.3(3) of the WLEP 2012 (Flood planning) provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of the matters and subclauses (a) to (e). The parties refer to the conditions of consent and other documents and say that the matters in sub-paragraphs (a) to (e) are satisfied by: 1. Conditions 3, 13, 74 and 94A of the conditions of consent; 2. The Flood Letter prepared by Acor Consultants dated 28 April 2020; and 3. Flood Investigation Report & Flood Risk Management Plan prepared by ACOR Consultants dated 04 November 2019. 1. Active street frontages, cl 6.7 WLEP 2012: The parties refer to cl 6.7(3) of the WLEP 2012 (Active Street Frontage), and explained that: "development consent must not be granted for the erection of a building unless the consent authority is satisfied that the Proposal will provide an active street frontage (as defined under clause 6.7(5) of the LEP). All floor space at ground floor level (but for elements excluded under clause 6.7(4) of the LEP) is proposed to be used for the purpose of business premises or retail premises. The Respondent, as consent authority to the DA, has resolved that the Proposal provides an active street frontage." 1. Consideration of land contamination: Pursuant to cl 7(1) of SEPP 55, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The parties rely on the fact that the Respondent, as consent authority to the DA, has considered whether the land is contaminated and, on account of the land being historically used for residential purposes, resolved that: 1. The Site poses no risk of contamination; 2. No further investigation of the Site is warranted; and 3. The Site is considered suitable for the Proposal. 1. Consideration of advice of any design review panel, cl 28(2), SEPP 65: Pursuant to cl 28(2) of (SEPP 65), the consent authority must consider the advice of any design review panel, the design quality of the development when evaluated in accordance with the design quality principles and the Apartment Design Guide. The parties explain that: "The Respondent, as consent authority to the DA, has considered the advice of its design review panel, the design quality principles and the Apartment Design Guide and has resolved that based on the amended plans, materials and Conditions, the Proposed Development is satisfactory." 1. Design verification, cl 50(1AB) Regulation: The parties note that the Proposed Development is supported by a Design Verification Statement dated 9 July 2020 signed by the Architect for the Proposed Development which verifies how the Proposed Development as amended addresses how the design quality principles are achieved, and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. The parties refer to the fact that Design Verification Statement concludes with the statement that the proposed development achieves the design quality principles and meets the objectives set out in Apartment Design Guide 2015, ensure that a modern and dynamic development is created and provides a benchmark for architectural design in the locality. 2. BASIX Certificate, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Regulation: in noting that the Proposed Development is a BASIX affected development containing a BASIX affected building the parties confirm that the DA is accompanied by a BASIX certificate which the Respondent has reviewed and deems satisfactory. 3. Sydney Harbour Catchment, cl 3, SREP: the parties identify the Site is located within the Sydney Harbour Catchment and submit that the Site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP, and further, the Site is also not located in the vicinity of a heritage item listed under the SREP. The Respondent has considered the Proposed Development to be satisfactory with respect to the SREP.
7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act. I have formed this state of satisfaction on the basis of the jurisdictional considerations set out below.

Owner's consent

1. I have viewed the Development Application form and noted that at Part 5 of the form titled "Owners Consent" which identifies the Applicant of these proceedings as the owner and that it is duly signed and accordingly, I am satisfied that the DA was made with the consent in writing of the owner of the Site.

Permissible development

1. I have considered the parties' explanation as to permissibility set out at paragraph [8(2)] and in addition I have viewed the Land Zoning Map - Sheet LZN_004 and identified the Site within the B3 Commercial Core. The objectives of Zone B3 Commercial Core are: 1 Objectives of zone • To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. • To encourage appropriate employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To support the role of St Leonards as a specialised centre providing health, research and education facilities. • To strengthen the role of Chatswood as a major centre for the inner north sub-region and to improve its public domain and pedestrian links. • To protect and encourage safe and accessible city blocks by providing active land uses on street and pedestrian frontages.
2. I am satisfied that notwithstanding that the Zone B3 Commercial Core land use table prohibits "residential accommodation", cl 2.3 of the WLEP 2012 which deals with zone objectives and land use table states in subcl (4) that "this clause is subject to the other provisions of this Plan" and therefore other provisions of the WLEP 2012 take precedence over any prohibition. It is my view that the parties have correctly relied on cl 2.5 of the WLEP 2012 and have accurately identified the Site as being within Area 5 as specified in item 31 of Schedule 1 of the WLEP 2012 and therefore the Proposed Development, namely, of shop top housing is permissible with consent. I have also noted that clause 2.5(2) of the WLEP 2012 expressly states that: this clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.
3. It is my view that the that the Proposal is permissible because of the operation of cl 2.5(2) of the WLEP 2012 and the location of the Site within Area 5 in the Special Provisions Area Map - sheet SPA_004.

Clause 4.6 Exception to Development Standards

1. I will now consider each of the three written requests relying on cl 4.6 of the WLEP 2012 seeking exceptions to the development standards (the Request). Clause 4.6 provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) […]
2. The Request states that it has been prepared having regard to the Land and Environment Court judgments in the matters of: 1. Wehbe v Pittwater Council (2007) 156 LGERA 446; [2017] NSWLEC 827 (Wehbe) at [42]-[48] 2. Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 (Four2Five) 3. Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) 4. Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 5. RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
3. The Request, accurately refers to the decision of Chief Justice Preston in the Initial Action case and the guidance provided in that judgment. The relevant process to satisfy the two preconditions set out in cl 4.6(4) identified in Initial Action is summarised as follows: 1. It the relevant clause in WLEP 2012 a development standard? 2. First precondition in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii): 1. First opinion of satisfaction: Is the consent authority satisfied under cl 4.6(4)(a)(i) that this written request adequately addresses the matters required by clause 4.6(3) by demonstrating that: 1. Compliance is unreasonable or unnecessary; and 2. There are sufficient environmental and planning grounds to justify contravening the development standard 1. Second opinion of satisfaction: Is the consent authority satisfied under cl 4.6(4)(a)(ii) that the Proposed Development will be in the public interest because it is consistent with the objectives of the relevant development standard clause and the objectives of Zoned B3 Commercial Core. 1. The second precondition in cl 4.6(b) is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained. Under cl 64 of the Regulation, the Secretary has given written notice dated 21 February 2018, attached to the Planning Circular PS 18-003 issued on 21 February 2018, to each consent authority, that it may assume the Secretary's concurrence for exceptions to development standards in respect of applications made under cl 4.6, subject to the conditions in the table in the notice. 2. On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the LEC Act. Preston CJ confirms at paragraph [29] however: "Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."
4. To deal with the threshold question of whether the relevant clause in the WLEP 2012 is a development standard, Initial Action at paragraph [10] includes the applicable definition of development standard as follows: "10. A development standard is defined in s 1.4 of the Environmental Planning and Assessment Act 1979 ("EPA Act") to mean: "provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. …"
5. I am of the view that the matters addressed in the Request being Height of buildings cl 4.3 of WLEP 2012, Exception to height of buildings cl 4.3A of WLEP 2012 and Floor space ratio cl 4.4 of WLEP 2012 are each development standards in accordance with the definition in s 1.4(c) and (d) of the EPA Act.
6. Dealing first with the first limb of cl 4.6(4)(a) of being satisfied that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), the judgment of Wehbe as summarised in Initial Action at paragraphs [17] to [22] lists five common ways of establishing that compliance with a development standard might be unreasonable and unnecessary 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. 22. These five ways are not exhaustive of the ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary; they are merely the most commonly invoked ways. An applicant does not need to establish all of the ways. It may be sufficient to establish only one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way."
7. Dealing secondly with the second limb of cl 4.6(4)(a) of being satisfied that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as required by cl 4.6(3)(b), the judgment of the case Four2Five Pty Ltd v Ashfield Council is referred to in Initial Action at [23] and [24] as follows: "23. As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. 24. The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
8. The second precondition of cl 4.6(4)(a) regarding public interest is dealt with in Initial Action and guidance on this limb of cl 4.6(4)(a)(ii) is provided at paragraphs [26] and [27] as follows: "26. […] The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). 27. The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii)."

Clause 4.6 Exception to Development Standards - Height of Buildings

1. I will now apply the cl 4.6(4) criteria to the first written request regarding the development standard of height of buildings. Pursuant to cl 4.3(2) and the Height of Buildings Map of WLEP 2012, the maximum Height applicable to the Site is 14 metres. The objectives of cl 4.3 are as set out below: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape, (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.
2. The Proposed Development, as amended, has a maximum building height as follows: 1. 27.2 metres measured to the top of the existing roof top stair access representing a variation of a 94%; 2. 26.15 metres measured to the top of the proposed residential lift overrun which adopts the same overall height as the existing plant room at this level. This represents a variation of a 86%; and 3. 26.29 metres measured to the top of the Victoria Avenue facing parapet 87%.
3. The Applicant has made a formal written request seeking to justify the contravention of the height of buildings development standard of cl 4.3 of the WLEP 2012, prepared by Boston Blyth Fleming Town Planners and dated 31 July 2020 pursuant to cl 4.6 of the WLEP 2012 (Request).
4. I am satisfied that the Request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP 2012)
5. The Request relies on the first and second common ways set out above at paragraph [19] namely, that 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 and that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.
6. The Request at pages 13 to 18 addresses each of the objectives of the height of buildings development standard in cl 4.3 of WLEP 2012 and how these are achieved notwithstanding the non-compliance with the 14 metre maximum height. The Request then at pages 18 to 19 addresses each of the Zone B3 Commercial Core objectives and how these objectives are achieved notwithstanding the non-compliance with the 14 metre maximum height of building.
7. For this reason I am satisfied that the Request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP 2012)
8. I am satisfied that the Request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (pursuant to cl 4.6(3)(b) of the WLEP 2012) because as described in the introduction of the Request at page 4, the Proposed Development involves the adaptive reuse of an existing commercial building and goes on to state: "to insist on compliance with the height of buildings development standard with require the demolition of 13.74 m of building height which represents the whole of existing levels 4, 5 and 6 and approximately 50% of level 3 where the building adjoin Victoria Avenue."
9. Mr Boston submits that: "This would result in a loss of approximately 3000 square metres of gross floor area. Such an outcome is neither orderly or economic and is not consistent with the objectives of ecological sustainability as it would involve the demolition of re-usable building materials and the consequential environmental impacts of the removal and replacement of those materials."
10. The Request relies on 4 environmental planning grounds namely 1. A development that demolished the non-complying element of the development would be inconsistent with (and would tend to hinder the achievement of) Objective 1.3(b) of the EPA Act to facilitate ecologically sustainable development by integrating relevant economic, environmental and social consideration in decision-making about environmental planning and assessment, and the aims of and clause 1.2(b) of the WLEP 2012 in relation to sustainable being relevantly: (ii) to promote an appropriate balance between development and management of the environment, that will be ecologically sustainable, socially equitable and economically viable, … (iv) to reduce resource consumption through the planning and control of land use and development, (v) to reduce potential energy and water consumption and waste materials during the construction, occupation, utilisation and lifecycle of buildings, 1. The cost of demolishing half of the building to be left with a building with half of the gross floor area is uneconomic and is also disorderly contrary to Objective 1.3(c) of the EPA Act which is to promote the orderly and economic use and development of land. 2. The retention of the non-complying element of the building through its enhanced design and visual appearance is consistent with objective 1.3(b) of the EPA Act as it results in a building that promotes good design and amenity of the built environment. 3. The proposed adaptive reuse of the existing building which retains the non-compliance element above the height limit does not result in any additional environmental impacts beyond what exists but results in an improvement in the design and visual appearance of the building.
11. As a result of the above, it is my view that I have formed the positive opinions of satisfaction under cl 4.6(4)(a)(i) being part of the first precondition under cl 4.6(4)(a) of the WLEP 2012 namely that I am satisfied that the Applicant's Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP 2012 by demonstrating that compliance with the height of buildings development standard in cl 4.3 is unreasonable or unnecessary and that there are sufficient environmental and planning grounds to justify contravening the height of buildings development standard.
12. The second positive opinion under cl 4.6(4)(a)(ii) of the WLEP 2012, for the Court in relation to an appeal to be satisfied that the Proposal will be in the public interest because it is consistent with the objectives of the Height development standard and the objectives for development within the B3 Commercial Core zone in which the development is proposed to be carried out.
13. I have formed a view that I am satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out and I adopt the reasons carefully detailed by Mr Boston in the Request set out from pages 13 to 19.
14. The second precondition in cl 4.6(b) is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained. On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the LEC Act. I have considered whether the contravention of the development standard raises any matter of significance for State or regional development planning and the public benefit of maintaining the development standard and it is my view that these matters are satisfactorily addressed.

Clause 4.6 Variation of Development Standard - Exceptions to height of building (7m above ground level for first 1 metre from road frontage)

1. I will now apply the cl 4.6(4) criteria to the second written request regarding the development standard of exception height of buildings. Clause 4.3A is titled "Exceptions to height of buildings" and does not list any specific or additional objectives to those listed in cl 4.3 above at paragraph [22] but rather lists a number of areas to which exceptions to the height of buildings apply. Relevantly, cl4.3A(3) and (4) provide as follows: (3) Subject to subclause (4), the height of a building on land in Victoria Avenue, Chatswood that is identified as "Area 3" on the Height of Buildings Map must not exceed, for the first 1 metre of the building back from the road frontage, 7 metres above ground level (existing) at the centre point of the lot boundary where it adjoins the road frontage. (4) If the building is on the northern side of Victoria Avenue, Chatswood on land that is identified as "Area 3" on the Height of Buildings Map, any part of the building that is more than 1 metre back from the road frontage and higher than 7 metres above ground level (existing) at the centre point of the lot boundary where it adjoins the road frontage must be set back to conform to the sun plane angle at mid-winter between 12.00 pm and 2.00 pm.
2. Pursuant to cl 4.3A(3) of the WLEP 2012 and the Height of Buildings Map the height of the building the subject of the Proposed Development which is on land in Victoria Avenue, Chatswood and that is identified as "Area 3" on the Height of Buildings Map must not exceed, for the first 1 metre of the building back from the road frontage, 7 metres above ground level (existing) at the centre point of the lot boundary where it adjoins the road frontage.
3. The existing vertical structural columns on both street facing facades of the existing building are located within 1 metre of the lot boundary for the full height of the development. The non-compliant vertical structural columns extend 17.3 metres above the 7 metre height standard along the Neridah Street frontage and 18.3 metres above the 7 metre height standard along the Victoria Avenue frontage. The extent of non-compliance is 10.3m (147%) along the Neridah Street frontage and 11.3 metres (161%) along the Victoria Avenue frontage.
4. The Applicant has made a formal written request to vary the Height development standard, prepared by Boston Blyth Fleming Town Planners and dated 30 July 2020 pursuant to cl 4.6 of the WLEP 2012 (Request).
5. I am satisfied that the Request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP 2012).
6. The Request relies on the first and second common ways set out above at paragraph [19] namely, that 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 and that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.
7. The Request at pages 33 to 38 addresses each of the objectives of the height of buildings development standard in cl 4.3 of the WLEP 2012 which are relevant and applicable for cl 4.3A of the WLEP 2012 and the Request sets out how these are achieved notwithstanding the non-compliance with the 7 metre maximum height level for the first 1 metre of the building back from the road frontage. The Request then at pages 38 to 39 addresses each of the Zone B3 Commercial Core objectives and how these objectives are achieved notwithstanding the non-compliance with the 7 metre maximum height level for the first 1 metre of the building back from the road frontage.
8. For this reason I am satisfied that the Request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP 2012)
9. I am satisfied that the Request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (pursuant to cl 4.6(3)(b) of the WLEP 2012) because as described in the introduction of the Request at page 25, the Proposed Development involves the adaptive reuse of an existing commercial building and goes on to state as follows: "In order to comply with the 7 metre height of buildings standard it would necessary to demolish the vertical structural building elements at levels 2 to 6 where located within 1 metre of both road frontages."
10. Mr Boston submits that: "Such an outcome is neither orderly or economic and is not consistent with the objectives of ecological sustainability as it would involve the demolition of re-usable building materials and the consequential environmental impacts of the removal and replacement of those materials. […] The adaptive re-use does not result in any additional exceedance of the height limit. In addition, the proposed development substantially improves the appearance of the existing building through the use of improved articulation, an enhanced palette of materials, finishes and façade treatments which break up the bulk and scale of the building and improve its appearance in the streetscape and the area. The existing building already forms part of the character of the area and the proposed works will improve its visual appearance and amenity and its consequential contribution to character."
11. The Request relies on the same 4 environmental planning grounds as for cl 4.3 of the WLEP 2012 referred to in paragraph [31] above.
12. As a result of the above, it is my view that I have formed the positive opinions of satisfaction under cl 4.6(4)(a)(i) being part of the first precondition under cl 4.6(4)(a) of the WLEP 2012 namely that I am satisfied that the Applicant's Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP 2012 by demonstrating that compliance with the height of buildings development standard in clause 4.3 is unreasonable or unnecessary and that there are sufficient environmental and planning grounds to justify contravening the height of buildings development standard.
13. The second positive opinion under cl 4.6(4)(a)(ii) of the WLEP 2012, for the Court in relation to an appeal to be satisfied that the Proposal will be in the public interest because it is consistent with the objectives of the Height development standard as they apply to cl 4.3A of the WLEP 2012 and the objectives for development within the B3 Commercial Core zone in which the development is proposed to be carried out.
14. I have formed a view that I am satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out and I adopt the reasons carefully detailed by Mr Boston in the Request set out from pages 33 to 39.
15. The second precondition in cl 4.6(b) is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained. On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the LEC Act. I have considered whether the contravention of the development standard raises any matter of significance for State or regional development planning and the public benefit of maintaining the development standard and it is my view that these matters are satisfactorily addressed.

Clause 4.6 Variation of Development Standard - Floor Space Ratio (FSR)

1. I will now apply the cl 4.6(4) criteria to the third and last written request regarding the development standard of floor space ratio. Pursuant to cl 4.4 of the WLEP 2012 the maximum floor space ratio for the Site is 2.5:1 as identified in the Floor Space Ratio Map - Sheet FSR_004. The objectives of this development standard at clause 4.4(2) are: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (e) to permit higher density development at transport nodal points, (f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, (j) to encourage the consolidation of certain land for redevelopment, (k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses.
2. The Proposed Development has a Gross Floor Area (GFA) of 4439m2 representing an FSR 3.71:1. The existing building has a GFA of 4768m2 representing an FSR of 3.98:1 that already exceeds the maximum 2.5:1 FSR (2994m2 GFA) standard by 1774m2 of 59.25%. The Proposal represents a reduction of 329m2 (6.9%) of GFA on the site and a corresponding reduction in FSR from 3.89:1 to 3.71:1. In order to comply with the FSR standard it would be necessary to demolish 1774m2 of existing floor space.
3. The Applicant has made a formal written request to vary the FSR development standard, prepared by Boston Blyth Fleming Town Planners and dated 31 July 2020 pursuant to cl 4.6 of the WLEP 2012 (Request).
4. I am satisfied that the Request demonstrates that compliance with the floor space ratio development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP 2012).
5. The Request relies on the first of the five common ways set out above at paragraph [19] namely, that 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.
6. The Request at pages 53 to 57 addresses each of the objectives of the floor space ratio development standard in cl 4.4 of the WLEP 2012 and the Request sets out how these are achieved notwithstanding the non-compliance with the 2.5:1 FSR. The Request then at pages 58 to 59 addresses each of the Zone B3 Commercial Core objectives and how these objectives are achieved notwithstanding the non-compliance with the 2.5:1 FSR.
7. For this reason I am satisfied that the Request demonstrates that compliance with the floor space ratio development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to clause 4.6(3)(a) of the WLEP 2012).
8. I am satisfied that the Request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (pursuant to cl 4.6(3)(b) of the WLEP 2012) because as described in the introduction of the Request at page 46, the Proposed Development involves the adaptive reuse of an existing commercial building and goes on to state as follows: "In order to comply with the FSR standard it would necessary to demolish 1774sqm of existing floor space, representing the majority of levels 5 and 6 or their equivalent."
9. Mr Boston submits that: "Such an outcome is neither orderly or economic and is not consistent with the objectives of ecological sustainability as it would involve the demolition of re-usable building materials and the consequential environmental impacts of the removal and replacement of those materials. […] The adaptive re-use results in a reduction in GFA and a consequential reduction in the existing buildings exceedance of the FSR standard."
10. The Request relies on the same 4 environmental planning grounds as for cl 4.3 of the WLEP 2012 referred to in paragraph [31] above.
11. As a result of the above, it is my view that I have formed the positive opinions of satisfaction under cl 4.6(4)(a)(i) being part of the first precondition under cl 4.6(4)(a) of the WLEP 2012 namely that I am satisfied that the Applicant's Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP 2012 by demonstrating that compliance with the height of buildings development standard in cl 4.3 is unreasonable or unnecessary and that there are sufficient environmental and planning grounds to justify contravening the height of buildings development standard.
12. The second positive opinion under cl 4.6(4)(a)(ii) of the WLEP 2012, for the Court in relation to an appeal to be satisfied that the Proposal will be in the public interest because it is consistent with the objectives of the floor space ratio standard in cl 4.4 of the WLEP 2012 and the objectives for development within the B3 Commercial Core zone in which the development is proposed to be carried out.
13. I have formed a view that I am satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the floor space ratio development standard and the objectives for development of the zone B3 Commercial Core in which the development is proposed to be carried out and I adopt the reasons carefully detailed by Mr Boston in the Request set out from pages 53 to 59.
14. The second precondition in cl 4.6(b) is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained. On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the LEC Act. I have considered whether the contravention of the development standard raises any matter of significance for State or regional development planning and the public benefit of maintaining the development standard and it is my view that these matters are satisfactorily addressed.

Flood Planning

1. The site is identified as being within the Scott Creek Flood Study catchment area and according cl 6.3 of the WLEP 2012 applies. The flood planning objectives in clause 6.3(1) of the WLEP 2012 provide: (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment.
2. Clause 6.3 (3) of the WLEP 2012 provides as follows: (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
3. I have reviewed the conditions of consent and the documents relied on by the parties and have formed the view that cll 6.3(3) (a) - (e) are satisfied because of the combined effect of the consent conditions (which reference the ACOR Consultants documents below) containing measures to address, manage and mitigate any flood risks as follows: 1. Consent Condition 3 titled "Flood Risk Management and Revised Architectural Plans" and consent condition 13 requiring submission of a detailed Flood Risk Management Report for approval by the Certifying Authority (both requiring compliance prior to the issue of a Construction Certificate), 2. Consent condition 74 (requiring engineer's certification verifying all measures have been complied with the approved Flood Risk Management Report prior to the issue of an occupation certificate) and 3. Consent condition 94A requiring maintenance of matters required in condition 3 at all times." and
4. I have also reviewed the letter prepared by ACOR Consultants dated 28 April 2020 addressing ground floor levels in response to Ground Level Drawing no. A102 finding that as a result of the watertight walls at the frontage of Victoria Avenue and part of Neridah Street, the subject site is complying with Willoughby City Council attachment 22 "Floodplain Management" technical standard No. 3 (Issued Nov 2009 and updated May 2016). This letter refers to and I have reviewed the Flood Investigation Report and Flood Risk Management Plan prepared by ACOR Consultants dated 4 November 2019 which includes measures for managing the risks posed by flooding at the subject site in section 6 of that report and concludes at page 15 of the report that they are of the view that the proposed development complies with the requirement of Willoughby Council requirements.

Active Street Frontage

1. I am satisfied that the Proposed Development will provide an active street frontage because in addition to the explanation provided by the parties at paragraph [8(5)] above, I have noted the conclusion in the SEE at page 24 that: "The proposal satisfies the provisions of this clause by maintaining the existing uses on both the Victoria Avenue and Neridah Street frontages".
2. I have also reviewed Drawing No A102 Issue 5 titled "Ground Level" and note that it indicates at ground level there is proposed to be two separate restaurant/café commercial premises and 3 retail spaces. I note that the fit out of the commercial premises is subject to further development approval however I am satisfied that the street frontage will be active after the change of use as a result of the fact that the location of the large retail premises annotated as "restaurant/café" on the ground floor layout is facing Victoria Avenue and therefore complies with cl 6.7(5) of the WLEP 2012 which provides In this clause, a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises.

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55)

1. Further to the explanation provided by the parties set out above at paragraph [8(6)], I have reviewed the Statement of Environmental Effects (SEE) by Greg Boston of Boston Blyth Fleming dated Dec 2018 lodged with the original DA and note that at page 36 it provides that: "The likelihood of encountering contaminated soils on the subject site is extremely low given the following: The subject site and surrounding land are not currently zoned to allow for any uses or activities listed in Table 1 of the contaminated land planning guidelines of SEPP 55. The subject site does not constitute land declared to be an investigation area by a declaration of force under Division 2 of Part 3 of the Contaminated Land Management Act 1997."
2. The SEE goes on to conclude at page 36 that: "Given the above factors no further investigation of land contamination is warranted at this time. The site is suitable in its present state for the continuation of the existing residential use of the land."
3. I am satisfied that I have considered contamination of the land has been adequately considered prior to the granting of consent following my review of the enquiries and resolutions of the Respondent and the investigation and conclusions reached in the SEE.

Consideration of the advice of the design revew panel: State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65)

1. I accept that the Respondent has formed the opinion that the Proposed Development is satisfactory following consideration of advice of its design review panel as set out in paragraph [8(7)] above and I accept that the Design Verification Statement referred to in paragraph [8(8)] is satisfactory.
2. I have reviewed the SEPP 65 and the Apartment Design Guide which were both included in the Respondent's bundle of documents. The objectives and design guidance of the Apartment Design Guide at Parts 3 and 4 are set out from pages 43 to 134 of the Guide. I have also noted in the SEE at pages 35 and 35 that: "Clause 28(2)(b) SEPP 65 requires any development application for residential flat development to be assessed against the 9 design quality principles contained in Schedule 1. The proposal's compliance with the design quality principles is detailed in the SEPP 65 Architectural Design/Verification Statement at Annexure 1. Pursuant to clause 28(2)(c) of SEPP 65 in determining a development application for consent to carry out residential flat development the consent authority is required to take into consideration the Apartment Design Guide. In this regard an Apartment Design Guide compliance table is attached at Annexure 2." I have reviewed both of these annexures and together with the explanation provided by the parties I am satisfied that the Proposed Development is satisfactory in relation to the design and I accept the Design Verification Statement complies with cl 50(1AB) of the Regulation.

BASIX Certificate

1. In addition to the explanation provided by the parties set out at paragraph [8(9)] above, I have also reviewed the updated BASIX certificate number 1099876M_02 issued 14 July 2020 and have formed the view that the requirements of the BASIX SEPP are satisfied.

Sydney Harbour Catchment

1. I have considered the location of the Site as explained by the parties and am of the view that although the Site is located within the Sydney Harbour Catchment, the Sites actual location is sufficient for me to form the view and agree with the parties to consider the Proposed Development to be satisfactory with respect to the SREP.

Notification of DA and public interest considerations

1. The DA lodged with the Respondent was placed on notification between 18 January 2019 and closing on 4 February 2019. The Respondent received two submissions in objection to the Proposal as set out in paragraph [28] of the Statement of Facts and Contention filed 16 August 2019. The parties advise that the amended plans and materials address the objections raised regarding. I have noted the amendments to the development application and am satisfied that as these address the objections no further notification is required to be undertaken.

Power of the Court

1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under section 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

Orders

1. The Court orders: 1. The Applicant is granted leave to rely on amended plans prepared by A Plus Design Group (individually dated), being those listed in consent condition 1 and as annexed and marked "B". 2. The Applicant is granted leave to rely on the clause 4.6 written requests prepared by Boston Blyth Fleming dated 31 July 2020. 3. The Applicant's written request prepared by Boston Blyth Fleming dated 31 July 2020 made pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 to vary the height of buildings development standard at clause 4.3(2) of the Willoughby Local Environmental Plan 2012 is upheld. 4. The Applicant's written request prepared by Boston Blyth Fleming dated 31 July 2020 made pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 seeking to vary the exception to height of buildings development standard at clause 4.3A(3) of the Willoughby Local Environmental Plan 2012 is upheld 5. The Applicant's written request prepared by Boston Blyth Fleming dated 31 July 2020 made pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 to vary the floor space ratio development standard at clause 4.4(2) of the Willoughby Local Environmental Plan 2012 is upheld 6. The appeal us upheld. 7. Development application no. DA-2018/430 for the conversion of the existing commercial building to shop top housing, to retain and adapt the existing building for use as a mixed use development containing ground level, Level 1 and Level 3 retail and business premises, with three levels (Levels 4, 5 and 6) of residential units, above parking for 35 cars, internal building works, changes to the building facades, and the construction of a landscaped, open space area on the roof top, with an easement for light and ventilation (over 284 Victoria Avenue, Chatswood), at 282 Victoria Avenue, Chatswood, is approved and development consent is granted subject to the conditions of consent set out in Annexure "A" and the plans annexed and marked "B". 8. In relation to the amendment for which leave is granted by order (1), the Applicant is to pay the Respondent's costs as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

Commissioner of the Court Annexure A (321922, pdf) Annexure B (11135217, pdf)

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: 24 August 2020