[2006] NSWLEC 66
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
Source
Original judgment source is linked above.
Catchwords
[2006] NSWLEC 66
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
Judgment (8 paragraphs)
[1]
The applicant's written request to contravene the height of buildings development standard
The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]:
the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because:
The proposal does not involve the provision of any additional floors;
The building form of the proposal is similar to the existing building envelope;
The exceedance is imperceptible from the public domain;
The additional height of the dwelling is unlikely to diminish the heritage significance of the heritage item and the existing dwelling already contravenes the height of buildings development standard;
The exceedance of the height of buildings development standard does not result in an undesirable precedent; and
The exceedance of the height of buildings development standard does not result in any unreasonable material planning impacts.
[2]
Contravention of the floor space ratio development standard
The planning experts disagreed on the calculation of the floor space ratio (FSR) for the proposal. Their disagreement amounts to different interpretations of the definition for gross floor area and whether the stairs connecting the levels are included or excluded from the calculation. Mr McFadden calculated the FSR as 0.5:1 and Mr Wells as 0.56:1. For the purpose of addressing the jurisdictional pre-requisite pursuant to cl 4.6 of LEP 2012, the Council submitted that Mr McFadden's calculation of 0.5:1 can be adopted. I accept the Council's submission. The FSR development standard for the site is 0.478:1.
[3]
The applicant's written request to contravene the height of buildings development standard
The applicant's written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because:
The proposal does not involve the provision of additional floors, the existing floors have been extended, enclosed or excavated, including the roof top terrace which is enclosed to create the master bedroom with ensuite;
The proposal fully utilises the existing basement (lower ground floor) which will be excavated, and a new level of accommodation provided;
The proposal does not result in any unreasonable impacts in terms of bulk and scale, overshadowing, loss of views or increased overlooking, visual and streetscape;
The proposal is for the creation of a contemporary dwelling that has had regard for its historic fabric;
The extent of the variation does not detract from the heritage significance of the heritage item;
The resultant built form will be commensurate with the existing building envelope; and
The extent of the variation is modest.
[4]
The environmental planning ground relied on by the applicant is not achieved by the proposal
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
The environmental planning ground relied on by the applicant is that the proposal maintains and enhances an existing heritage item within the Mosman locality and conserves part of the original fabric. I accept that, had I been satisfied that the proposal retained the heritage significance of the heritage item, that this could properly be described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23], because the reconstruction and adaptation of Morella would necessarily result in a non-compliant building envelope, given the constraints of the existing envelope and its location on the site.
[5]
Overshadowing
The additional overshadowing of the forecourt of 3 Morella Road by the proposal is unjustified. The amount of retained fabric of the southern façade is meaningless in terms of retaining the heritage significance of the heritage item, but it does retain the insubstantial side setback to the shared boundary with 3 Morella Road and results in the proposed building envelope being very close to the shared boundary and overshadowing the forecourt of 3 Morella Road. The significant overshadowing of the forecourt of 3 Morella Road on the winter solstice may be justified by the genuine reconstruction and adaptation of Morella, as a result of the existing insubstantial side setback, but it is not justified for a new 4 storey dwelling that should comply with the planning controls for side setbacks in order to minimise amenity impacts on adjoining development.
[6]
Conclusion
The proposal does not achieve the objective of the heritage clause, cl 5.10(1)(b) of LEP 2012, to conserve the heritage significance of heritage items, including associated fabric, settings and views.
An appropriate degree of flexibility in applying the development standards for height of buildings and FSR should be applied to a proposal for the genuine reconstruction and adaptation of a heritage item; and that the retention of the heritage significance of the heritage item is a sufficient environmental planning ground to justify contravening a development standard, within the meaning of cl 4.6(3)(b) of LEP 2012. The proposal, however, is for the substantial demolition of the existing dwelling and the construction of a new 4 storey dwelling and does not retain the identified local heritage significance of the Eric Nicholls' designed Morella.
I accept the applicant's submission that the proposal is a skilful design. The applicant's argument that the existing dwelling is sufficiently retained and interpreted to justify the exceedance of development standards and the narrow southern side setback is not made out by the evidence.
[7]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No. 8/2019/77/1 for the substantial demolition of the existing dwelling, construction of a new 4 storey dwelling, swimming pool and double garage, at 5 Morella Road, Mosman, is refused.
3. The exhibits, other than Exhibits 1 and A, are returned.
[8]
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Decision last updated: 10 December 2020
Parties
Applicant/Plaintiff:
Zobon Australia Pty Ltd
Respondent/Defendant:
Mosman Council
Cases Cited (10)
The Helou planning principle is not relevant to this appeal
The applicant raised the issue of the difference between the cost of a "heritage rebuild" and a "modern non-heritage rebuild", as a justification of the proposal, referring to the 'Economic Evaluation of Construction Alternatives for 5 Morella Road, Mosman' prepared by Dr Peter Abelson dated 2 March 2020 (Ex B, Folder 2, tab 3.8) and the Court's Helou planning principle.
In Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou) Moore C [as he then was] articulated a planning principle to include the cost of conservation as a factor in deciding whether demolition of a building identified as contributory to the heritage significance of a heritage conservation area is acceptable, as follows:
"46 The following questions should be addressed in assessing whether the demolition should be permitted:
1. What is the heritage significance of the conservation area?
2. What contribution does the individual building make to the significance of the conservation area?
The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought.
3. Is the building structurally unsafe?
Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area.
4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?
If the answer is yes, the cost of the necessary remediation/rectification works should be considered.
5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted?
If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding.
6. Is the replacement of such quality that it will fit into the conservation area?
If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved."
Although the planning principle in Helou was expressed to apply only to contributory buildings in a heritage conservation area, and not to the demolition of local heritage items, I accept that the Helou planning principle can be of assistance by analogy in identifying that the reasonableness of the costs of restoration or reconstruction of a heritage item (Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118 at [63]).
The Helou planning principle is not relevant to this appeal, because the case was not presented as the demolition of a heritage item justified by the prohibitive cost of reconstruction. Instead, the case has been presented as the conservation of a heritage item. The applicant submitted that the proposal "successfully conserves the heritage significance [of the heritage item]". Mr McKenzie described the proposal as "the proposed conservation approach achieves both the heritage conservation objectives [in the LEP and objects of the EPA Act]…", and "the proposal retains the original form and scale and character of the original house through combination [sic] of conservation processes…" and "when observed from Clifton Gardens Reserve the original architectural character and features of Nicholls design of the east, north and west facades will be evident in concert with the complementarily [sic] designed underlay of alterations and additions."
The applicant's argument for the proposal is that the conservation of the heritage item justifies the non-compliances with the height of buildings development standard, the FSR development standard and the control for the southern side setback. The Helou planning principle is a different argument justifying the demolition of a heritage item based on the prohibitive cost of conserving the item. The 'Economic Evaluation' report is of no assistance to the applicant's case because the applicant maintained that the proposal is for the conservation of the heritage item.
The proposal can be distinguished from the development consent granted by the Council for the demolition of the heritage item at 17 Morella Road, because that development application included a Statement of Heritage Impact (Ex C) that justified the demolition of the existing dwelling on the basis that it was found to be a lesser example of Ancher Mortlock and Murray's work and it had been considerably modified, and so it did not reach the threshold for local heritage significance despite its listing as a local heritage item. That is not the case in this matter.
Contravention of height of buildings development standard
According to Mr McFadden, the proposal exceeds the height of buildings development standard of 8.5m by a maximum of 3.75m. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex B, Folder 1, tab K). The exceedance of the height of buildings development standard is a result of the northern and eastern parts of the uppermost floor addition.
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] "Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).