Abraham v Inner West Council

[2019] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abraham v Inner West Council [2019] NSWLEC 1370
Hearing dates:	Conciliation conference on 2 August 2019
Date of orders:	06 August 2019
Decision date:	06 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The applicant is granted leave to amend the application by relying on the amended plans and documentation referred to in condition 2 of Annexure A. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $8,000. (3)   The written requests to vary the development standards in cll 4.3A and 4.4(2B)(b)(ii) of Leichhardt Local Environmental Plan 2013 are upheld. (4)   The appeal is upheld. (5)   Development Application No. D/2018/243 for site consolidation, alterations and additions to the existing warehouse buildings at the site and change of use to a multi dwelling housing development containing three dwellings and 2 car spaces at 75-77 Beattie Street, Balmain, is approved, subject to the deferred commencement condition and the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Environmental Plan 2013
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Richard Abraham (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: G Green and A Knox, Pikes & Verekers Lawyers (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/296942
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2018/243 for site consolidation, partial demolition of the existing building, retention of façade to Beattie Street and change of use to a multi dwelling housing development containing three dwellings and parking for three vehicles (the proposal) at 77 Beattie Street, Balmain (the site) by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 August 2019. I presided over the conciliation conference.

3. 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.

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 under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6 of the Leichhardt Environmental Plan 2013 (LEP 2013).

Planning framework

6. The site is zoned R1 General Residential pursuant to LEP 2013 (Land Zoning Map - Sheet). The objectives of the zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

7. The proposal contravenes the development standard for landscaped area and site coverage for residential accommodation in the R1 zone, at cl 4.3A of LEP 2013. The site area is 281sqm and development consent must not be granted to development for the purpose of residential accommodation on land zoned R1 General Residential where the landscaped area is less than 20% of the site, at cl 4.3A(3)(a)(ii) of LEP 2013 and where the site coverage exceeds 60% of the site area, at cl 4.3A(3)(b) of LEP 2013.

8. The objectives of the development standard, at cl 4.3A(1) of LEP 2013 are:

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

9. The floor space ratio (FSR) development standard for the site is 0.9:1 at cl 4.4(2B)(b)(ii) of LEP 2013 and the FSR for the proposal is 1.18:1.

10. Clause 4.6 of LEP 2013 provides an appropriate degree of flexibility in applying certain development standards to particular development and the applicant relies on a written request to vary the development standard.

Contravention of the landscaped areas for residential accommodation in Zone 1 development standard

11. The proposal has a landscaped area of 6.85% and site coverage of 80.5%.

12. The applicant provided a written request seeking to justify the contravention of the landscaped area for residential accommodation in Zone 1 development standard.

13. 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] NSWLEC 118 [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 development 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.

14. 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(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).

The applicant’s written request to contravene the height of buildings development standard

15. 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 [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

16. 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 [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]).

17. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

• 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;

• 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).

18. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

19. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the proposal is an adaptive reuse of existing buildings that are unique to the area and fully occupy the site; there is cohesive landscaped corridor evident in the vicinity of the site because the site is within an areas formerly industrial and commercial in character; the proposal provides opportunities for planting around the site and not all of these areas contribute to the calculation landscaped area as they are within raised planter boxes and pots; and the proposal does not have any impact on existing landscaped areas within the vicinity of the site. The proposal is consistent with the desired future character of the area because it retains buildings that make a contribution to the local streetscape and the heritage conservation area and the proposal has been designed in response to the constraints presented by the retention of the existing buildings on the site.

20. 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 [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 [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 [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 [24]).

21. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard as a justified response to the constraint of retaining the existing buildings on the site. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

22. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).

23. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons outlined above and given by the applicant in the written request.

Contravention of the FSR development standard

24. The proposal has a FSR of 1.18:1 and the FSR development standard for the site is 0.9:1.

25. The applicant provided a written request seeking to justify the contravention of the FSR development standard.

The applicant’s written request to contravene the height of buildings development standard

26. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is an adaptive reuse of an existing building and the existing building fully occupies the site. The bulk and mass of the development has been located centrally within the site so as to minimise its visual impact and provide a transition in scale between the higher building to the east and the lower development to the west. The proposed bulk and scale of the development is consistent with that which currently exists on the site and retains the existing presentation of the former warehouse to Beattie Street.

27. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard as a justified response to the constraints and opportunities of retaining and adaptively reusing the warehouse buildings on the site. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

28. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons outlined above and given by the applicant in the written request.

Orders

29. The orders of the Court are:

1. The applicant is granted leave to amend the application by relying on the amended plans and documentation referred to in condition 2 of Annexure A.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $8,000.

3. The written requests to vary the development standards in cll 4.3A and 4.4(2B)(b)(ii) of Leichhardt Local Environmental Plan 2013 are upheld.

4. The appeal is upheld.

5. Development Application No. D/2018/243 for site consolidation, alterations and additions to the existing warehouse buildings at the site and change of use to a multi dwelling housing development containing three dwellings and 2 car spaces at 75-77 Beattie Street, Balmain, is approved, subject to the deferred commencement condition and the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (439 KB, pdf)

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Decision last updated: 06 August 2019