XLJ Investment Group Pty Ltd v Ku-ring-gai Council - [2020] NSWLEC 1607 - NSWLEC 2020 case summary — Zoe

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XLJ Investment Group Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1607

Land and Environment Court (NSW)|2020-09-23

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-09-23

Catchwords

[2002] NSWLEC 220 Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155
[1989] NSWLEC 19 Edwards v Blue Mountains City Council [1961] NSWR 803 Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45
[2009] NSWLEC 153 Groeneveld v Wollongong City Council (2009) 168 LGERA 260
[2009] NSWLEC 149 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256

Source

Original judgment source is linked above.

Catchwords

[2002] NSWLEC 220 Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155[1989] NSWLEC 19 Edwards v Blue Mountains City Council [1961] NSWR 803 Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45[2009] NSWLEC 153 Groeneveld v Wollongong City Council (2009) 168 LGERA 260[2009] NSWLEC 149 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256

Judgment (53 paragraphs)

[1]

167 TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Wenli Wang v North Sydney Council [2018] NSWLEC 122 Texts Cited: Apartment Design Guide - NSW Department of Planning AS4282-1997 Control of the obtrusive effects of outdoor lighting Ku-ring-gai Local Centres Development Control Plan Macquarie Dictionary Online, accessed 13 November 2020 Category: Principal judgment Parties: XLJ Investment Group Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) J Smith (Respondent)

[2]

[5]

Site and context

An unusual feature of this proposal is that while the proposed RFB would be located, essentially, on 1446 Pacific Highway, the proposal would integrate this new RFB with adjacent lands to the east, south and west upon which development for RFB development has already occurred. There is some intricacy to these arrangements, and the understanding of the totality of the land which is the subject of the application, and the associated legal interpretation of "site area", all of which are explained later.
What is clear is that all of the relevant land is located on the southern side of the Pacific Highway and falls within a precinct which is earmarked for development of this type, with considerable pre-existing RFB development already existing on both sides of the highway in this location.
In this setting, 1446 Pacific Highway is an example of a remaining undeveloped parcel. It is a rectangular shaped lot some 18.89m wide and 49.43m deep with a total area of approximately 930.8m2. The lot falls away steeply from the Pacific Highway, falling approximately 12m from the front boundary to the rear boundary. It is currently occupied by a two storey dwelling with attached garage. There is a swimming pool in the rear yard and a large canopy tree within the front setback.
Aside from 1446 Pacific Highway, the land which is the subject of the application is described in the Amended Statement of Environmental Effects (Ex N) as also including 1444-1454 Pacific Highway (also described in Ex N as part of the common property of SP 89317) and 1 Lamond Drive (also described in Ex N as part of the common property of SP 88529).
For convenience of explanation only, I will generally refer to 1446 Pacific Highway, where the proposed RFB building would be located, as the "core land". Similarly, and because of some discrepancies in the evidence in regard to street address, I will mostly use to strata plan (ie SP) references to describe the other land. Again for simplicity, and without at all wishing to contradict the Applicant's comments in closing submissions as to the importance of these lands, I will at times refer to the lands subject to the application within SP 89317 (1444-1454 Pacific Highway) and SP 88529 (1 Lamond Drive) together as the "supplementary land", when not referring to them by their individual strata plan reference number; and here to be interpreted as the relevant part of those strata plans.

[14]

Issues

There were some 26 matters raised in Council's Amended Statement of Facts and Contentions filed 7 August 2020 (Ex 1, Tab 1). The substance of the matters which warrant attention in this judgement can be categorised as follows: 1. Orderly development and the role of easements: Council contends that the proposal's reliance on a series of easements to provide for the integration of the core and supplementary land is unsatisfactory. Land consolidation is suggested as the appropriate way to provide for certainty for the overall proposal and remove risk of the abandonment of easements. 2. Interpretation of site area: There are related legal questions in regard to the correct interpretation of "site area" for the proposal under different provisions of KLEP. 3. Flora and fauna impacts: The contention is that the proposed development brings potential adverse impacts on identified BGHF areas. 4. Overshadowing: The contention relates to the proposed RFB's overshadowing of certain units within SP 89317, particularly in regard to Building E. 5. Contravention of development standards: The proposal contravenes certain development standards relating to FSR and building height. The contention is that there is insufficient justification for the contraventions. 6. Other issues: Council also raises building setback, inadequate deep soil planting, visual bulk and scale, building height, cross ventilation and acoustic amenity for future occupants along with public interest concerns.
I will here also introduce the experts giving evidence at the hearing. See table below. Expert Expertise For A Sutherland Planning Applicant B Gregory Planning Council A Cadogan Urban design Applicant K Hunter Urban design Council R Frew Landscape architect Applicant I Francis Landscape and ecological assessment Council R Kingdom Arborist Applicant J Whyte Ecological assessment Council V Fattoretto Acoustic Applicant T Rofail Wind and ventilation Applicant

[16]

Submissions

The Applicant says it is not practical to achieve formal consolidation, now, due to the disaggregation of tenure following the strata subdivision of the supplementary land, embodied in SP 89317 and SP 88529. The Applicant describes the proposal as "unusual" and "sophisticated" in its approach to relating the core and supplementary land. This sophisticated approach is seen as providing an alternative means of achieving KLEP aims.
It is argued that without the initiative involved in securing the relational arrangement between the core and supplementary land (in particular the easements), benefits provided by the proposal would not be achieved. These benefits are said to include improvements in regard to BGHF conservation and achievement of R4 High Density Residential zone objectives (see [7]). In regard to the latter, it argued that lesser in the way of "provision for the housing needs of the community" (in accordance with the zone objective) would be achieved otherwise.
Council's submissions also draws out certain "unusual" aspects of the development. A primary point is that the application is seeking to use floor space which has already been "used" to comply with controls in prior development consents on the supplementary land (termed as "double dipping"). Council suggests the purpose of the inclusion of the future use of some of the supplementary land, as part of the proposed development (in particular a large passive recreation area), is better seen as aimed at justifying a nominal site area compliance (under KLEP development standards), than as providing something of benefit for future occupants.
In response to the Applicant's submission that the proposed approach provides for beneficial environmental outcomes, Council submits that the proposed design prioritises the optimisation of development yield. According to Council, the proposed floor space and extent of occupation of the core land (building right to side boundaries) results in: unreasonable adverse impacts on identified BGHF conservation areas, inadequate deep soil planting, solar and visual impacts associated with height and bulk and internal design underperformance in regard to cross ventilation and acoustic amenity. A lesser density of development, more compliant with what Council would suggest as a normal application of controls, would not bring this extent of impacts.
Council also argued that as there was potential for the new easements to be extinguished through private agreements. Therefore, the particulars of the proposal in toto could not be assured into the future.

[20]

Site area definition

There is a particular definition of site area applicable to FSR calculation (only) under cl 4.5 of KLEP. The definition of site area found in the Dictionary of KLEP applies otherwise to this application. The provisions of cl 4.5 are reproduced below relevant to the question of site area: (1) Objectives The objectives of this clause are as follows - (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to - (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. … (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be - (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. … (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. … (9) Covenants to prevent "double dipping" When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.

[21]

Points of interpretation

There are three points of interpretation involved in the clause. The first involves no dispute I believe. It is that the (full) area of any lot on which the development is proposed to be carried should be included as part of the site area for FSR calculation purposes so long as it has a common boundary with another lot upon which the development is proposed to be carried out (cl 4.5(3)(b)). There seems to be no disagreement that each of the "lots" upon which development is proposed have at least one common boundary with another.
The second point is whether the exclusions at cl 4.5(6) apply. In particular here, whether development on SP 89317 and SP 88529 each individually include "significant development". There is no definition of the term significant development in KLEP.
The authority gaining most attention in the hearing was TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 ('TK Commercial'). Here Robson J found that certain physical works involving "substantial excavation, the construction of a masonry stairway, the creation of new pathways and ramps, and the construction of a new sewer main and new drainage infrastructure" constituted "significant development" for the purposes of a similar clause to that in play in the matter before me.
The problem with both parties' reference to TK Commercial is that insufficient details were provided for me to appreciate the particulars of those "significant" works. While His Honour would have been exposed to such particulars, I am not, in particular, abreast of the extent of the first mentioned matter: "substantial excavation". I note in Antoniades Architects Pty Ltd v Canada Bay City Council [2014] NSWLEC 1019 Brown C found the other way to TK Commercial. In that determination an "access driveway" is found not to be significant development [72]-[73], although again I cannot be aware of what particulars were associated with Commissioner Brown's decision.
The third point is in regard to double dipping, which can be seen to gain direct attention at subclause (9) to cl 4.5.

[22]

Findings

I will refer first to the double dipping question. It seems to me it is necessary to have regard to the limits to KLEP's provisions in regard to it. For me, subcl (9) of cl 4.5 only goes so far in relation to the objective at subcl (1)(b)(ii). The objective at subcl (1)(b) makes clear its concern is with "(setting) out rules". In the particular case of subcl (1)(b)(ii), the rules are intended to prevent "an area" that has been already included to maximise floor space in a prior development from inclusion in site area calculations for a future development (which is argued by Council as directly occurring in this matter). However, the particular rule established in KLEP to prevent double dipping (at subcl (9)) limits itself to permitting the imposition of conditions which prevent double dipping in the future (ie for a future development application). This setting seems to place an onus on a consent authority to recognise the risk beforehand. In this instance that would have required a consent authority to have already imposed the said "covenant" as a condition relating to approvals on the supplementary land. There were no submissions that there were any such covenants. It seems to me that cl 4.5, including through the only relevant operational provisions at subcl (9), gives no assistance to Council in its arguments that double dipping might be a factor in a finding in regard to site area, which needs to be otherwise interpreted under that clause. In these circumstances, cl 4.5 would need to, were I to find favour in Council's argument.
I now turn to the interpretation of "significant development" for the purposes of the interpretation of site area under cl 4.5 of KLEP. The authorities provided to the Court included reference to the downside of a move to "closely define" the term "significantly" in the phrase "significantly affect the environment" now at s 5.7 of the EPA Act (see Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155; [1989] NSWLEC 19 [163]). The need, in that instance, to assess the facts constituting the environment and the activity and its likely effect on that environment in the circumstances is emphasised. Nonetheless, for me, some guidance is provided in Oshlack v Richmond River (1993) 82 LGERA 222, p19 ('Oshlak'), where it is indicated "significantly" has been held to mean "important", "notable", "weighty" or "more than ordinary".
I do not see the proposed large areas of communal space within SP 89317, which would be available for passive recreation by occupants of the proposed RFB, could be characterised as being important or weighty aspects of the proposal and, for me, significant development. That is to say, these passive recreation areas, which make up a very significant proportion of the supplementary land, would not of themselves qualify as site area under cl 4.5. But this is not fatal to the Applicant's argument. The proposed sole vehicular access to the RFB, also located substantially on SP 89317, is significant development. Because of the construction of the clause (cl 4.5(3)(b)) "the area of the (whole of SP 89317)" comes into the calculation of site area.
The proposed development's use of land within SP 88529 also includes significant development. The most obvious reason is because an important part of the sole access driveway for the RFB is located on this land. The proposed elevated boardwalk on 1 Lamond Drive is also significant development as it is necessary for fire egress (Ex LL). In my view the somewhat narrow area of BGHF planting on SP 88529 would not be significant development, of itself, but this is not relevant to the finding in regard to SP 88529 as site area.
With these findings, which essentially align with the opinion of Mr Sutherland, the approach to the calculation of site area for the purposes of FSR assessment is available. See below [113] for the consideration of FSR issue more particularly, including in regard to the contravention of the FSR development standard at cl 4.4 of KLEP.

[30]

Context

One of the conditions of the development approval applying to SP 89317 (DA605/11) required the creation of a restriction as to user limiting works in what I have described above as an established BGHF "offset area" (Condition 96). There were also management works to be undertaken in support of intended positive ecological outcomes. Council submits and it is not, as I understand it, contested that this offset area was established as a result of the loss of BGHF trees otherwise associated with development in accordance with DA605/11.
One part of the identified offset area abuts the core site and is located to the immediate south-west of the proposed RFB. Henceforth I will call this the "western BGHF management area". As indicated above, the proposal includes certain physical works in the western BGHF management area (ie outside the core land). The physical works include: (1) an elevated boardwalk, of open "mesh" construction, running from the Pacific Highway and connecting into the proposed RFB at a side entrance towards the rear of this proposed building (this boardwalk would also link into the walkway network on SP 89317) and (2) fire egress stairs at the western corner of the proposed RFB. The proposal would also provide for "updates" to concomitant ecological management requirements established for this section of the BGHF offset area under DA605/11.
The Applicant submits that were the appeal to be successful, a condition of consent would require a variation of the existing restrictive covenant. I accept the Applicant's submission that this path is open to me (Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220 at [27]), including in regard to the question of purported inconsistency with an earlier development consent applying to SP 89317 (Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 at [98]).
A key document relating to the existing management regime applying to the western BGHF management area under DA605/11 is referenced as follows: Amended and Updated Vegetation Management Plan, prepared by Keystone Ecological, 20 August 2013 (Ex 1, Tab 10, Folio 213 - 'Existing VMP').
The documents relating to this portion of the BGHF area, prepared by the Applicant as part of the current proposal, are as follows:

Updated Flora and Fauna Assessment Report (Version 3) prepared by Conacher Consulting August 2020
Updated Supplementary Vegetation Management Plan (Version 3) prepared by Conacher Consulting August 2020 (Ex L - 'Supplementary VMP')
Draft Environmental Site Management Plan prepared by Conacher Consulting August 2020.

[31]

Policy

Both KLEP and KDCP controls are relevant but I will concentrate on KLEP controls here. I have already noted that much of the site falls within areas indicated as of "biodiversity significance" in KLEP's Natural Resource - Biodiversity Map. Below I cite cl 6.3 of KLEP, relevantly, including its jurisdictional provisions particularly noting subcl (4): 6.3 Biodiversity protection (1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including - (a) protecting biological diversity of native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities, populations and their habitats, and (d) protecting, restoring and enhancing biodiversity corridors. (2) This clause applies to land identified as "Areas of Biodiversity Significance" on the Natural Resource - Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) the impact of the proposed development on the following - (i) any native vegetation community, (ii) the habitat of any threatened species, population or ecological community, (iii) any regionally significant species of plant, animal or habitat, (iv) any biodiversity corridor, (v) any wetland, (vi) the biodiversity values within any reserve, (vii) the stability of the land, and (b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and (c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors. (4) 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 consistent with the objectives of this clause, and (b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided - (i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and (ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and (iii) the development avoids clearing steep slopes and facilitates the stability of the land, and (iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

[32]

Evidence

There is agreement among the ecological experts that adverse impacts will occur in the western BGHF management area.
Mr Manners, ecological expert for the Applicant, says no BGHF trees will be removed (given leave to amend the application explained below [132]) and indicates the impact would "be limited to tree trimming and removal of recently planted understorey plants" (Ex 4, p16). He also indicates the overall proposal would result in a net increase in BGHF vegetation. This would be due to that which is proposed at the front of the core land (including retention of a large canopy tree and other vegetation management arrangements), along the side of the core land (where new planting is proposed alongside the proposed driveway) and to the rear of the core land (where new planting is proposed between the proposed RFB and Building E).
Mr Whyte, ecological expert for Council, indicated that the proposal would remove BGHF planting, reduce the available space for the establishment of trees, shrubs and groundcover vegetation, bringing about adverse impacts. There would also be an erosion of the existing protections under DA605/11 (Mr Manners acknowledges "changes" but not that they would constitute an erosion of protections - see below). Mr Whyte indicated that future large canopy trees needed space to grow and mature. The proposal limited future growth capacity due to hardstand and elevated building works at the edge of the western BGHF management area, and encroaching into this area with the intended fire egress stairs and elevated boardwalks. According to Mr Whyte, setting back the RFB building works from the common boundary would have provided a better outcome in ecological terms. In cross examination Mr Whyte acknowledged the benefits associated with the proposed plantings and management arrangements at the front and rear of the proposed RFB, and to a lesser extent along the driveway.
Comparisons between the Existing VMP [62] and Supplementary VMP [63] came under some consideration in evidence. Of note was the identification of the differentiated spatial management units identified in the Existing VMP, in particular MU3 and MU6 which together covered what I am describing as the western BGHF management area. MU3 occupied the larger area and MU6 was a smaller area located adjacent to the western BGHF management area's boundary with the core land. The MU6 area was shown as 211m2 in area (Ex 1, Folio 233). More specifically, the MU6 area under the Existing VMP would directly abut the proposed RFB building and would be in part occupied by the proposed fire egress stairs from the RFB basement area and the elevated boardwalk. It seems clear from the evidence that the MU6 area was identified in the Existing VMP as an area of high priority in ecological terms. The objective for this area was identified as "fully structured BGHF" (Ex 1, Folio 233), consistent with other areas on SP 89317 identified as MU1, MU4 and MU5, located to the south of the building works approved under DA605/11. The nominated objective for MU3, that is the rest of the area within the western BGHF management area, was less ambitious: "Established plantings of BGHF species" (Ex 1, Folio 229).
The Supplementary VMP (Ex L) would classify the area shown as MU6 in the Existing VMP to accord with the requirements of MU3 in that VMP.
A point of difference between the experts here was whether there were prospects for the (existing) MU6 area to regenerate as proposed under the Existing VMP. Mr Whyte indicated that the difference between MU3 and MU6 areas at the time of preparation of the Existing VMP was that BGHF seedbank occurred in the MU6 area. He believed that prospects for natural regeneration to occur under the Existing VMP requirements remained, and that introducing new plantings (as proposed for MU3 areas) was not as beneficial in ecological terms. Mr Manners was of the view that a full year (four seasons) without evidence of natural regeneration was enough time to determine that the MU6 style of management was no longer necessary or appropriate and an MU3 style of approach was preferred in that area.

[33]

Consideration

Central to the consideration of this issue is cl 6.3 of KLEP.
First, I acknowledge that the proposed arrangements to the front and rear of the RFB would no doubt provide some ecological benefit having the potential to "improve the diversity and condition of native vegetation and habitat", mindful of the objectives of cl 6.3.
Then I note that the provisions of cl 6.3(4) involve jurisdictional gateways through which the proposal must pass if consent is to be granted. One requirement is for the Court to be satisfied that the proposal is consistent with the objectives of this clause (cl 6.3(1)). The second has a conditional aspect to it involving two limbs. The initial limb would have the Court satisfied that the development "is designed, and will be sited and managed, to avoid any potentially adverse environmental impact". However, there is another limb available in instances where "potentially adverse environmental impact cannot be avoided". In these instances, four cumulative tests are put. It will be shown below that I find these tests are not relevant to the case at hand, as I find the impact can be avoided in this instance.
The Applicant's principal argument is that the proposal would bring about an overall improvement in regard to BGHF outcomes, perhaps due especially to intentions regarding BGHF vegetation and habitat to the front and rear of the RFB. Improvements which are not of course available if the proposal does not go ahead. It does not seem to me that what might be thought of as "net benefit" is the test that is before me here in a jurisdictional sense. But even if it was, the question of what weight should go to this aspect of the proposal (in terms of the offsetting of disbenefits otherwise contended in regard to the western BGHF management area) arises. It would not bring substantive weight in my view. This is because, in ecological terms, I see the proposed improvements at front and rear of the RFB as mostly in the way of baseline requirements which would be expected of development in this location given the fact that these areas are indicated as of "biodiversity significance" in KLEP's Natural Resource - Biodiversity Map. The planting along the driveway is a little different given some of this area is not shown in the Natural Resource - Biodiversity Map as of biodiversity significance. But the ecological benefits of this latter planting is of lesser importance anyway according to the evidence.
The jurisdictional concern here is the test at cl 6.3(4) of KLEP and in this instance I am not satisfied in regard to the first limb of cl 6.3(4)(b). There is agreed evidence that the proposal would bring about an adverse environmental impact on the western BGHF management area established under DA605/11 due to the construction of the elevated boardwalk and basement staircase both of which are located within the high value MU6 area under the Existing VMP. I also agree with Mr Whyte that the massing of the RFB, with building works and excavation right to the boundary of the western BGHF management area, including the edge of the current MU6 area, would constrain the biodiversity protection prospects for the western BGHF management area. The side boundary building setback requirements under KDCP includes a numerical control of 6m. But even if it were seen that there should be lesser setback applicable here, a built-to-the-boundary scenario, as proposed, must be seen as unreasonable in a setting adjacent to an identified area of biodiversity protection significance. I do not believe the development is designed, and will be sited and managed, to avoid any potentially adverse environmental impact.
There was insufficient evidence brought to my attention to accept the position of the Applicant that the current MU6 area can be re-categorised as MU3. In this instance, the precautionary approach adopted by Mr Whyte is preferred. But, in my view, even at an MU3 category, the proposal's design and siting and intended management regime would still bring about, rather than avoid, an adverse environmental impact in regard to the land adjacent to the proposed RFB and particularly the area currently shown as MU6 in the current VMP. Under cl 6.3(4) of KLEP, there is then a need to turn to the question of whether I am satisfied that "potentially adverse environmental impact cannot be avoided".
The Macquarie Dictionary (online, accessed 13 November 2020) provides some interpretive assistance: "unavoidable" is seen to mean "inevitable"; with "inevitable" in turn seen to mean "certain or necessary". Turning to caselaw, and while there is not complete alignment with the context here, a reasonable interpretation of the phrase "cannot be avoided" is that from Edwards v Blue Mountains City Council [1961] NSWR 803 (p270) where the meaning "not reasonably practical to prevent it" was attributed. The position adopted in both Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 (Arkibuilt) and Barrett and ors v Blue Mountains City Council [2011] NSWLEC 1341 (Barrett), while concluding differently, seem to follow that principle. As shown in the citations below, in each of these two latter cases, the test applied by the Commissioners (when considering the question of avoidance) turned to the design and development prospects for the site. That is, what I might consider the otherwise "practical" appropriateness of the particular development proposal.
In Barrett, Brown C found at [51]: "I am satisfied that there is no practicable alternative in terms of design, type and site coverage, having regard to the permissibility of the proposed development (including compliance with the relevant zone objectives but subject to the provision of an acceptable landscape plan) and significant compliance with the development standards in Schedule 2 Part 1."
In Arkibuilt, then Commissioner Dixon found at [59] "While I understand vehicle access from Lindfield Avenue is not available I am not satisfied on the evidence that the Applicant has exhausted design alternatives, which would avoid the adverse environmental impact of the loss of all or any of these significant trees. Therefore, I am not satisfied on the evidence before me that the development has been designed or sited and managed to avoid potentially adverse environmental impacts"
In the case before me, the adverse environmental impact could be avoided in at least two ways. The first is through the removal of the elevated boardwalk, the impacts of which are only partially offset by its construction features. The elevated boardwalk would not be required for fire egress purposes (Ex LL) and there were alternative means for connecting with the walkway network within the supplementary land. Indeed, the Applicant made clear to me that this option was available to the Court under 4.16(4) of the EPA Act. But this would not resolve the issue with the basement staircase required for fire egress, or the concerns raised by Mr Whyte in regard to the RFB construction right at the boundary of the western BGHF management area.
The second way would involve a redesign to set the RFB structure, including the basement staircase, back from the western BGHF management area established under DA605/11.

[36]

Policy

SEPP 65 and the ADG were the central reference points for the evaluation of overshadowing. There are certain "considerations" required of me at cl 28(2) which I have attended to. But more relevant here is cl 30(2): Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
Part 3 of the ADG is concerned with 'Siting the Development'. Part 3B is concerned with "Orientation", and Objective 3B-2 is of particular interest here and provides relevantly as follows. "Objective 3B-2 Overshadowing of neighbouring properties is minimised during mid winter Design guidance Living areas, private open space and communal open space should receive solar access in accordance with sections 3D Communal and public open space and 4A Solar and daylight access Solar access to living rooms, balconies and private open spaces of neighbours should be considered Where an adjoining property does not currently receive the required hours of solar access, the proposed building ensures solar access to neighbouring properties is not reduced by more than 20% If the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond minimums contained in section 3F Visual privacy Overshadowing should be minimised to the south or down hill by increased upper level setbacks It is optimal to orientate buildings at 90 degrees to the boundary with neighbouring properties to minimise overshadowing and privacy impacts, particularly where minimum setbacks are used and where buildings are higher than the adjoining development …"
Part 4 of the ADG ("Designing the Building") also arose in evidence. Most pertinent were the following provisions: "Objective 4A-1 To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space Design criteria 1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas"

[38]

Expert advice

Mr Sutherland says (Ex 3, par 365): "The Apartment Design Guide specifically tolerates solar access impact from a proposed development to adjacent existing residential flat building, and provides specific numerical guidance to assist in understanding the limits of this tolerance. My assessment in relation to what constitutes an acceptable level of solar access impact is guided by this tolerance and the impact of the proposed development does not exceed the limit of this tolerance, and therefore I must conclude that the proposed solar access impacts are therefore acceptable."
Mr Sutherland also opines (Ex 3, par 372): "This design guidance contemplates up to 20% reduction of the existing solar access performance of Building E if it is below the 70% requirement. In this instance, 56.25% of apartments in Building E currently enjoy 2 hour solar access. A 20% reduction of this figure is 11.25%, which means that the solar access of Building E can be reduced to 45% or 14 apartments and remain consistent with the design guidance. This represents a reduction of 6 units from the 20 units which currently receive more than 2 hours solar access."
I note Mr Sutherland also refers to the fifth design guidance point and the fact that the proposal does increase upper level setbacks with positive solar impact effects. Mr Sutherland summarises the position regarding Building E as follows: "Therefore, having regard to the circumstance of the site including the constrained site area and the very steep fall to the rear, the proposed design successfully minimises shadow to Building E to the south as demonstrated by the impact being within the tolerance contemplated by the Design Guidance."
Mr Sutherland also referred to a previous finding by Commissioner Gray in Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 ('Louden') (Ex 3, par 368-9): "368 The Land and Environment Court has previously recognised - in (Louden) that objective 3B-2 does not mean that every unit in a neighbouring development may necessarily have solar access that complies with design criterion 1 of objective 4A-1. In Louden a unit's solar access was reduced to between one hour-and-a-quarter and one-and-half hours of sunlight to the living room and private open space as a consequence of the development of a new unit four-storey building to the north (at [78]). 369. The Court accepted (at [81]) that the new building has been skilfully designed and articulated to retain solar access to the four impacted units of the adjoining residential flat building (to the south of the development). It had done so by reducing the floor space at the upper levels to improve solar access across the site. The unit whose solar access was reduced was held to be highly vulnerable due to its orientation and location. In circumstances of such vulnerability, between one hour-and-a-quarter and one-and-half hours of sunlight to that unit was sufficient to satisfy the Court that the proposal had minimised its overshadowing of adjoining development (therefore meeting objective 3B-2 of the ADG). The Court did not attempt to quantify this reduction in percentage terms."
Mr Cadogan also provided his expert opinion that skilful design has been employed in regard to this issue (Ex 3, par 389): "The relevant performance to be achieved in relation to overshadowing in this instance is set out by the ADG's design guidance as described in Mr Sutherland's comments on this matter. The building bulk has been skilfully designed to minimise the impact to achieve that performance. Views from the sun demonstrate that as a result of the layout of apartments within Building E, the steeply falling topography, and the relative path of the sun, there are no reasonable additional setbacks to upper levels or the sides of the building that could lift the performance without there being extreme reductions in the envelope of the proposed development. These diagrams also show that for the same reasons, setbacks along the north-western boundary alluded to by Ms Hunter would not result in a substantial improvement in the solar access maintained. Given that the ADG guidance has been followed and the overshadowing performance has been achieved to then require further building setbacks to achieve a higher performance would be in my view unreasonable. On balance I therefore consider that the overshadowing has been competently managed and minimised to an acceptable level."
The overall position of Mr Sutherland and Mr Cadogan is that the proposal represents an acceptable loss of existing amenity in the circumstances.
Ms Hunter does not believe that the amenity loss is acceptable. She does not believe the Applicants emphasis on the 20% reduction factor is well conceived. Ms Hunter believes there has been insufficient consideration being given to site analysis and design generally and the overarching intent of Part 3B of the ADG (Ex 3, par 397): "It is my opinion that a 20% 'tolerance': is not a stand-alone 'right' to reduce existing amenity, and is dependent on the design demonstrating a response to minimise impacts identified through the contextual and specific site conditions within a thorough Site Analysis, and it relates to the level of existing solar amenity enjoyed by neighbouring properties. There is additional design guidance at objective 3B-2 that a design strategy is expected to have responded materially in ways to reduce overshadowing impact. Examples described within Part 3B include increased building separation, alternative building type, reducing building height, and in the subject site, this would also include the response to side setbacks, and may require adjustments to the density."
Ms Hunter also refers to the direct impacts on Building E of the proposed RFB, and finds as follows (Ex 3, par 406): "The proposed development on 1446 Pacific Highway impacts on a further 9 units - E06, E07, E12, E13, E18, E19, E24, E25 and E30 (extrapolated from solar analysis A502(C) to A514(C)). Of those 9 units, I have found that 6 units (E06, E07, E12, E13, E18, E19) will have more than 20% of their existing amenity lost."
In regard to Building E alone and conformance with the design criteria to Objective 4A-1 of the ADG, I note Mr Sutherland said: "Building E's performance drops from 20-14 units" (Ex 3 par 376).

[40]

The significance of compliance with a design guidance measure

The "how to use this guide" section of the ADG is useful here. Mr Sutherland quotes it in part (Ex 3 par 371) but I will provide a fuller quotation, as follows: "Achieving the objectives Parts 3 and 4 of the Apartment Design Guide provide objectives, design criteria and design guidance for the siting, design and amenity of apartment development. Each topic area is structured to provide the user with: 1. a description of the topic and an explanation of its role and importance objectives that describe the desired design outcomes 2. design criteria that provide the measurable requirements for how an objective can be achieved. 3. design guidance that provides advice on how the objectives and design criteria can be achieved through appropriate design responses, or in cases where design criteria cannot be met. The key to working with Parts 3 and 4 is that a development needs to demonstrate how it meets the objective and design criteria. The design criteria set a clear measurable benchmark for how the objective can be practically achieved. If it is not possible to satisfy the design criteria, applications must demonstrate what other design responses are used to achieve the objective and the design guidance can be used to assist. in this. Not all sections within Parts 3 and 4 specify design criteria. In these instances the design guidance should be referred to when demonstrating how an objective is being achieved."
Under the ADG explanation, achieving a measurable requirement listed as a design criterion would demonstrate how an objective might be achieved. Mr Sutherland submits that a design guidance-level measure (in this case the 20% reduction factor) demonstrates the "tolerance" available for overshadowing purposes mindful of Objective 3B-2. This leads Mr Sutherland to conclude there is an acceptable solar outcome achievement. Mr Cadogan goes a little further to say "ADG guidance has been followed and the overshadowing performance has been achieved" (Ex 3, par 389).
It does not seem to me that the 20% reduction factor provided as design guidance is a "clear measurable benchmark for how the objective can be practically achieved". This is the function of a design criterion. One very notable in solar access assessment is the design criteria established for Objective 4A-1 of the ADG (see [86]). It certainly makes sense that a design guidance measure has weight in the consideration of merits, but it does not of itself demonstrate practical achievement of itself. As submitted by Ms Hunter, the availability of design alternatives that might reduce the solar impact, might be another merits considerations that warrants attention. The Applicant's experts make some references to the consideration of design alternatives, including through the reference to Louden (see [95]), which I turn to below.

[42]

Overshadowing impact and consideration of design alternatives

Mr Cadogan says that "the design was significantly amended to minimise the extent of overshadowing of Building E in precisely the manner suggested by the ADG with reductions to the bulk and scale, and reduced setbacks of upper floors" (Ex 3, par 386). He also references "skilful design" in the architectural scheme and says additional setbacks along the north-western boundary "would not result in a substantial improvement in the solar access maintained", and that "there are no reasonable additional setbacks to upper levels or the sides of the building that could lift the performance without there being extreme reductions in the envelope of the proposed development" (Ex 3, par 389).
Ms Hunter says that there has been insufficient attention to the site analysis as required under Part 3A of the ADG and that there is insufficient evidence of meaningful consideration of the solar impacts on Building E, evidenced by the proposed building form which is seen to maximise its 3-dimensional extent and exceeds the density controls (Ex 3, par 409). It is suggested "an adequate setback from the north-western boundary would not result in the overshadowing impact that is proposed".
I generally prefer Ms Hunter's evidence over that of Mr Cadogan on this point. The constraints on Building E in regard to solar access raised by the Applicant are acknowledged, in particular its siting on a lower level and on land sloping away from the core land upon which the RFB would be located. But I am unconvinced by Mr Cadogan's arguments that the proposal has exhausted reasonable alternatives. Or put another way, it is his interpretation of what might be thought of as "substantial improvements in the solar access maintained" [108], through any increased setback to the north-western boundary, that is moot. In this instance, with these site constraints, the capacity to retain even an extra 30 minutes of morning sun into the living areas of units 24, 18, 12 and perhaps 6 (while noting the leading edge of the building itself), when otherwise dominated by an uphill RFB could, in mid-winter, provide considerable additional amenity. As the season moves onwards from mid-winter an solar access to these and other adversely affected units within Building E increases.

[45]

Floor space ratio contravention

The proposal involves a contravention of the FSR development standard at cl 4.4 of KLEP. There are permissive powers at cl 4.6(2) of KLEP which provide, relevantly, as follows: 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 ...
The permissive power in cl 4.6(2) is subject to the restrictions in cl 4.6(3) and (4): (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.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding the contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]). The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
To open the gate to the application of these permissive powers, mindful of cl 4.6(3) of KLEP, the Applicant has provided a written request seeking to justify the contravention. The written request was prepared by Sutherland and Associates and was dated September 2020. It formed Exhibit F in the proceedings.
The intricacies of the calculations involved in determining the site area for FSR purposes in this setting is considered above [41]. Suffice to say here that I agree with Mr Sutherland's conclusion in regard to site area for FSR calculations. As detailed in Ex F, the FSR controls applying to the land which is the subject of the application, themselves, also involve some intricacies. This is centred on the split controls which apply. As introduced at [36], a maximum of 1.3:1 is permitted at the northern end the of the site shown as "Area Q" in the FSR map (where the bulk of the existing RFB development is located and additional RFB development would occur with the subject proposal). The southern area of the site (Area K) is limited to 0.8:1.
There is agreement among the parties that Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74 establishes the framework for the appropriate calculation of FSR in scenarios of this kind. The core point being that the FSR must be calculated separately for the parts of the proposed development within Area Q and Area K. In this instance it is agreed there is a contravention in regard to Area Q, that is the northern area upon which the building works are proposed.
An FSR of 1.45:1 is calculated for Area Q (Ex F, p12) whereas the applicable control is 1.3:1. This contravention is also calculated as equating to 1612.2m2 or 11.4% of the control.

[47]

Whether objectives of the development standard achieved notwithstanding non-compliance

I do not believe the written request demonstrates that the objectives of the FSR standard has been achieved in this instance. My concern is in regard to objective (b): to enable development with a built form and density compatible with the size of the land to be developed, it's environmental constraints and its contextual relationship
The written request raises a number of points in regard to objective (b) (Ex F, p14-15): "This objective focuses on the built form (which includes issues of bulk and scale).The proposed new building is of an appropriate scale and design and presents as a 5 storey building with the top floor setback as anticipated by the DCP. The building also achieves ADG compliant separation from all surrounding buildings. Therefore, the proposed new building achieves an appropriate contextual fit which is compatible with the recently completed adjoining development, notwithstanding the FSR non-compliance. The proposed development facilitates the removal of a dwelling which has become anomalous to the new character and scale of development which has emerged in recent years on both sides of the dwelling, and its replacement with a building which is entirely consistent in terms of its height, massing and architectural language with the new context of the site. The setbacks on either side of the proposed new building are appropriate and the rhythm of building to void along the Pacific Highway is maintained by the proposed new building. In addition, the proposed variation to the northern FSR control does not result in any unreasonable impacts, noting that this does not compromise the achievement of all of the necessary metrics in relation to site coverage, common open space and deep soil. Furthermore, whilst the proposal results in some shadow to Building E within the site, the shadow is within the limits as anticipated by the ADG and furthermore when considered on a holistic basis, the proposed new building achieves the same level of solar access as that which has already been approved for the recently constructed development of the site."
Other points raised elsewhere in the written request include (ibid): "The overall density of the proposal does not exceed the total density which could be achieved across the site and is in fact well under this density by 766.06 square metres. … • A development that redistributed gross floor area to the southern part of the site would be unreasonable or unnecessary because it would be contrary to core objective of the split FSR zones which instead aims to shift the majority of built form to the northern part of the site and away from the Blue Gum Forest on the site. The Applicant's proposed approach towards the distribution of density on the site is entirely aligned with the objective of the split FSR zones by moving density towards the northern part of the site. • The proposed new building is of an appropriate scale and design and presents as a 5 storey building with the top floor setback as anticipated by the DCP. Therefore, the proposed new building achieves an appropriate contextual fit which is compatible with the recently completed adjoining development, notwithstanding the FSR non-compliance. • If the variation is not permitted, the overall site will not achieve its planned level of density. The southern portion of the site is fully-developed and is now comprises new built form and common property open space. There is no credible prospect that any additional gross floor area could be accommodated in the southern area. This makes it sensible for at least some of the density that was not able to be achieved on the southern site now be accommodated on the northern site (given that there are no unacceptable impacts from the re-distribution of gross floor area)."
I agree that the proposed built form would fit well in the streetscape and is compatible in that sense. The concern is in regard to environmental constraints and contextual relationship, otherwise. I do not agree with the written request's conclusion that the FSR, as proposed, does not result in any unreasonable impacts. As previously found, the proposal would bring adverse environmental impacts in regard to BGHF and unreasonable overshadowing of Building E. The written request has not adequately countered these findings. The written request has not demonstrated the proposal comprises a built form and density compatible with the site's environmental constraint and its contextual relationship with Building E.

[48]

Whether underlying objective or purpose of the standard would be undermined if compliance was required

In relation to this second ground, the written request references the relevant objectives of the development standard, comprising objective (b), cited above, as well as objective (a) which is as follows: (a) to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai
Three adverse consequences are suggested if compliance is required (Ex F, p15-16): "Firstly, a building form of scale that is more appropriate to a medium density zone would ultimately be erected, rather than a high density residential zone. Secondly, the overall site will fall well-short of its planned intensity. This means that the community will not get the originally anticipated social return on the investment it has made in public transport and services infrastructure in the Turramurra town centre. Less people will have the opportunity to live in walking distance of these facilities. The facilities will suffer reduced patronage. Thirdly, less people will have the opportunity to undertake passive recreation in southern part of the site (which is only accessible to the residents and visitors of the overall site). This space is unlikely to be overused based on the existing level of development. This land is aesthetically pleasing and its use for passive recreation is something to be encouraged (in circumstances where there is no prospect of it becoming congested or over-used). These adverse outcomes would mean that a compliant development falls short of the two above objectives of a development standard to a far greater extent that the proposed development. In short, the objectives of the standard are better achieved by the proposed development, when compared with the likely compliant development that would otherwise be pursued. This fact alone is sufficient to establish that requiring strict compliance with the FSR is unreasonable or unnecessary in the circumstances of the case."
I am not convinced of these arguments for the reasons that follow. In regard to the written request's first argument, strict compliance does not by default require a building "more appropriate" for a medium density zone. It is not clear what building form would result as a consequence of strict compliance. One option might involve setting back the building from the north-western boundary somewhat and accommodating all of the fire egress stairs on the core land, while otherwise providing development of a similar scale. The written request's second argument inflates adverse consequences of the reduced GFA. The written request's third argument does not measure up against the environmental and amenity effects of the contravention.

[50]

Leave to amend the application and costs

The Applicant sought leave to amend the application essentially centred on: (1) the relatively late advice of concurrence from Roads and Maritime Services (RMS) concerned with Pacific Highway access, and (2) certain amendments to the western elevated boardwalk arising in expert dialogue related to retention of Tree 337, located within the BGHF management area. There were various documentary consequences to these changes which were included: (1) amended architectural drawings (Ex DD), (2) amended landscape plans (Ex EE) and (3) an updated BASIX certificate. An update to the design verification statement was also prepared. The Applicant notes that the physical changes to the plans are limited to adjustments to the detailing of the driveway entry and adjustments to the boardwalk to sidestep Tree 337. The changes to other documentation were said to be essentially consequential.
Leave is granted to the amendment and indeed these changes were factored into hearing proceedings and in the preparation of this judgement.
Section 8.15(3) of the EPA Act provides for orders for the payment of costs thrown away in certain instances. The following points can be made in regard to this contested issue:

Section 8.15(3) requires costs to be ordered other than in instances of a "minor amendment". That is, to say there is no discretion available.
The statute does not define the term "minor" and the onus is on the Applicant to show that the amendments are minor (S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 [5-6]).

In Futurespace Pty Ltd v Ku-Ring-Gai Council(2009) 169 LGERA 45; [2009] NSWLEC 153 at [42], Pepper J determined a set of eight principles to assist in determining whether amendments are "minor" for the purpose of s 8.15(3) (then s 97B). I have considered these principles and find them generally useful but find one of the authorities referenced by Pepper J as particularly pertinent to the question before me. In Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 (Groeneveld) at [30] - [31] Preston CJ held: "30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained. 31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept.
In my view the setting described in Groeneveld has some similarities to the circumstances here. Contextually, it is clear to me that the amendments go beyond "matters of detail". The particular change of note here is the relocation of the pathway to allow retention of Tree 337. Tree 37 is described as an Allocasuarina toruolosa or Forest Oak (Ex 1, Tab 1, p28) and falls within the western BGHF management area. This amendment was significant to the proposal's efforts to address contentions relating to BGHF retention.
The amendments brought about a material change to the proposal. For this reason, these amendments are not be able to be classified as minor, and in that case require an appropriate order as to costs thrown away by the Council.

XLJ Investment Group Pty Ltd v Ku-ring-gai Council

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