ARTZ 2 Design Pty Ltd v Ku-ring-gai Council

[2015] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation:

ARTZ 2 Design Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1381

Hearing dates:

25 and 26 February 2015

Date of orders:

24 June 2015

Decision date:

24 June 2015

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

Directions see paragraph 53

Catchwords:

DEVELOPMENT APPLICATION: Residential Flat building. Non-compliance with height and floor space ratio development standards, whether request for exception to development standards is satisfactory, compatibility with streetscape.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development
State Environmental Planning Policy (Affordable Rental Housing) 2009
Ku-ring-gai Local Environmental Plan (Local Centres) 2012

Cases Cited:

Carlingford Investments Pty Ltd v The Hills Shire Council [2015] NSWLEC 1022
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

ARTZ 2 Design Pty Ltd (Applicant)

Ku-ring-gai Council (Respondent)

Representation:

Counsel:
Mr M Staunton (Applicant)

Solicitors:
Mr J Schmidt-Leirmann of Schmidt-Leirmann Lawyers (Applicant)

Mr A Hudson of Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10654 of 2014

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku-ring-gai Council (council) of a development application (DA0402/13) for the demolition of existing structures and the construction of a new residential flat building at 9-11 Memorial Avenue, St Ives (site).

2. As a result of amended plans, conditions and the agreement of the experts the key issues that remain in dispute between the parties are whether:

1. the requests for a variation under cl 4.6 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP) to the height and floor space ratio (FSR) standards are well founded; and

2. the height, number of storeys and FSR of the proposal will have adverse streetscape and urban design impacts.

Site and locality

3. The site is regular in shape and comprises two allotments with a combined area of 1890.9sqm. It has a frontage of 41.46m and is relatively flat, with a minimal cross fall. Each allotment is developed with a single storey dwelling.

4. A park, St Ives Village Green, is on the opposite side of Memorial Avenue. To the south, the site adjoins a one to two story dwelling, which is also used as a doctor’s surgery (7 Memorial Avenue). To the rear, a five storey residential flat building is currently under construction. To the north, the site adjoins an access handle and two dwellings (13-15 Memorial Avenue).

5. The site is within an area undergoing transition. The block bounded by Memorial Avenue, Mona Vale Road, Link Road and Killeaton Street (the Block) is developed with older detached dwellings, recent five storey residential flat buildings, an electricity substation and council car park and includes Rotary Park, which is located at the corner of Memorial Avenue and Mona Vale Road. The St Ives shopping centre is located on the opposite corner and there is a strip shopping centre on the opposite side of Mona Vale Road and Stanley Street.

Planning controls

6. The site is in Zone R4 High Density Residential under the LEP. The Land Use Table for the R4 zone provides:

Zone R4 High Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

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

• To provide for high density residential housing close to public transport, services and employment opportunities.

2 Permitted without consent

Home occupations

3 Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs: Business identification signs; Child care centres; Community facilities; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Home-based child care; Home businesses; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Places of public worship; Recreation areas; Residential flat buildings; Respite day care centres; Roads; Seniors housing; Shop top housing

4 Prohibited

Any development not specified in item 2 or 3

7. The development for the purpose of a residential flat building is permissible with consent in the R4 Zone. Clause 2.3(2) of the LEP provides that regard must be had to the objectives for development in the zone. Clause 2.5 permits additional use of the land for office premises but only at ground level and with a FSR no greater than 0.3:1.

8. Clause 4.3 – Height of Buildings relevantly provides:

4.3   Height of buildings

(1)  The objectives of this clause are as follows:

(a)  to ensure that the height of development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b)  to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A)  Despite subclause (2), the height of a building on land identified as “Area 1” on the Height of Buildings Map and with a site area within the range specified in Column 1 of the table to this subclause must not exceed the height specified opposite in Column 2 of the table.

Column 1	Column 2
1,800 square metres or less	11.5 metres
More than 1,800 square metres but less than 2,400 square metres	14.5 metres

9. The site is within an area identified on the Height of Buildings Map with a maximum height of 17.5m and as “Area 1”. As the site has an area of 1890.9sqm, the maximum height permissible under cl 4.3(2A) is 14.5m. The maximum height of the proposal is 17.5m and the applicant has submitted a written request under cl 4.6 of the LEP that seeks to justify the contravention of the height standard.

10. Clause 4.4 – Floor Space Ratio relevantly provides:

4.4 Floor space ratio

(1)  The objectives of this clause are as follows:

(a)  to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai,

(b)  to enable development with a built form and density compatible with the size of the land to be developed, its environmental constraints and its contextual relationship,

(c)  to ensure that development density provides a balanced mix of uses in buildings in the business zones.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

……

(2E) Despite subclause (2), the maximum floor space ratio for development on land identified as “Area 5” on the Floor Space Ratio Map with a site area within the range specified in Column 1 of the table to this subclause must not exceed the ratio specified opposite in Column 2 of the table.

Column 1	Column 2
Less than 1,800 square metres	0.8:1
1,800 square metres or more but less than 2,400 square metres	1.0:1

11. The site is within an area identified on the Floor Space Ratio Map with a maximum FSR of 1.3:1 and as “Area 5”. As the site has an area of 1890.9sqm, the maximum FSR permissible under cl 4.4(2E) is 1.0:1. The FSR of the proposal is 1.3:1 and the applicant has submitted a written request under cl 4.6 of the LEP that seeks to justify the contravention of the standard.

12. Clause 4.6 relevantly states:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

13. Clause 6.5 - Site requirements for multi dwelling housing and residential flat buildings requires a minimum site area of at least 1200sqm and at least one street frontage to be not less than 30m for land more than 1800sqm (and 24m for land less than 1800sqm). The site complies with the site requirements. However, the adjoining site at 7 Memorial Avenue would not comply as it has an area of about 950sm and a frontage of about 20m. As its southern boundary adjoins an access handle, it is unlikely to be amalgamated with any other properties resulting in an “isolated site”. The applicant has submitted schematic drawing that illustrates future redevelopment of the land, which is discussed later in this judgment.

14. Ku-ring-gai Local Centres Development Control Plan 2012 (the DCP) is relevant. Volume A provides controls for Amalgamation (Part 3A), Residential Flat Building (Part 7). Volume B includes controls for the St Ives Local Centre (Part 1A) and the site is within a S3 Urban Precinct (R4 zone), which, in this location, contains 3-15 Memorial Avenue and the council car park in Mona Vale Road.

Background and proposal

15. The development application was lodged on 18 October 2013 and refused by council on 15 July 2014. The applicant lodged a Class 1 appeal on 21 August 2014. A conciliation conference, under s34 of the Land and Environment Court Act 1979 (LEC Act), was held on 6 November 2014 but the parties did not reach agreement and the conference was terminated. The applicant was given leave to rely on amended plans on 13 November 2014.

16. The parties did not object to my hearing the matter under s 34(13) and the hearing commenced on site on 25 February 2015.

17. The Amended Statement of Facts and Contentions describes the proposal for which consent is now sought as being for:

the demolition of the existing dwelling houses and associated structures and construction of a residential flat building comprising 18 units with basement car parking for 38 cars and associated landscaping. A break-down of the proposal is as follows:

Basement floor plans

3 levels of basement car parking accessed via a driveway from Memorial Avenue

Ground floor plan

(a)   Main entry foyer

(b)   3x3 bedroom + study apartments

(c)   1x2 bedroom + study apartments

First floor plan

(a)   3x3 bedroom + study apartments

(b)   1x2 + study apartments

Second/third floor plan

(a)   3x3 bedroom + study apartments

(b)   1x2 bedroom + study apartments

Fourth floor plan

(a) 2x3 bedroom + study apartments

Pedestrian access is located centrally at the site frontage, providing access to the main entry foyer. The proposal will necessitate the removal of all existing trees and vegetation on the site, with the exception of a Firewheel Tree located adjacent to the rear boundary. The development proposes a tree replenishment of 11 tall growing trees with associated shrubs.

18. Leave was granted during the hearing for the applicant to rely on further amended plans (Exhibit A). The key change being a reduction in the front setback to address the 6m control in the DCP and a minor reduction in the overall height by 600mm.

Evidence

19. The Court visited the site and surrounding area and heard from the adjoining owner of 7 Memorial Drive, whose key concern was that adequate efforts had not been made to amalgamate his property and that it would be “isolated” by the development. In these circumstances, he will continue to use his property as a dwelling with a doctor’s surgery and it is unlikely to be redeveloped in the short term. He stated that the site area is below that required by the LEP to achieve the height and FSR proposed by the development and will result in adverse impacts on his property, particularly overshadowing.

20. The Court heard expert planning evidence from Mr G Boston, for the applicant and Mr R Kinninmont, for the Council. Mr N Dickson, for the applicant, and Mr P Smith, for the council, provided urban design evidence.

Height and request under clause 4.6 of the LEP

21. Mr Boston provided a written request pursuant to cl 4.6(3) to vary clause 4.3(2A) of the LEP. The written request states that a variation to the height standard can be supported because the documented negotiations with the owner of 7 Memorial Avenue included a reasonable offer to purchase and schematic diagrams that indicate how it can be redeveloped individually. Except for the inability to consolidate with 7 Memorial Avenue, a 17.5m (5 storey) height standard would apply to the site and this would be deemed to meet the objectives of the standard. The smaller size of the site does not compromise these objectives being achieved as the development complies with setback, site coverage and deep soil landscape provisions in the DCP and the non-complying fifth storey is setback with a reduced floor plate and is a recessive element. It will not compromise the future development potential of 7 Memorial Avenue through unreasonable loss of privacy, views or solar access. The fifth storey is compatible with its existing and future context and the building height variation does not defeat the objectives of the zone or the standard. To restrict the development potential in these circumstances would be unreasonable and unnecessary and there are sufficient site specific environmental planning grounds to justify contravening the development standard.

22. Mr Boston considered that the proposal satisfies objective (c) of cl 4.3(1) of the LEP, which is the principle objective in dispute between the experts. He noted in oral evidence that for the built form to be “compatible with the size of the land” includes a consideration of not just the area of the land, but factors such as dimensions, slope, topography and other constraints, which are met by the proposal such that there is sufficient land size to accommodate the development. It does not include a consideration of how the development fits within its wider context. He acknowledged that if there were a minimum of two allotments, the other land in the Block would also satisfy this objective. He considered that there were opportunities for more than two lots to be amalgamated, such as with land to the rear even though this has already been redeveloped.

23. Mr Dickson supports the variation to the height standard principally because the fifth storey is setback from the floor below and as such is visually recessive and not easily discernible from various vantage points, including the park. To the north east of the site, are large five storey buildings and within this context the proposal will be of much less intrusive bulk and form.

24. Mr Kinninmont did not agree that the written request under cl 4.6(3) of the LEP demonstrates that compliance with the height standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. In particular, he did not accept that the unsuccessful negotiations to amalgamate 7 Memorial Avenue justified the extra height that would be permissible on a larger site. The proposal’s “purported” compliance with other controls, increased densities and absence of impact are not reasons to support the variation to the standard.

25. Mr Kinninmont and Mr Smith consider the non-compliance with the height control to be unreasonable as it will result in an undesirable streetscape which is unnecessary as there are other options that could achieve a redistribution of floor space with reduced height, as the site is unconstrained and is capable of compliance with the height standard. Furthermore, given the subdivision pattern on Memorial Avenue, the maximum height of other future development sites would be 14.5m and 7 Memorial Drive would be limited to a maximum of 12.5m. Mr Smith prepared a diagram (Exhibit 6), which illustrated the possible streetscape outcome if sites are redeveloped under the controls.

26. Mr Kinninmont and Mr Smith concluded that the increased height would result in a streetscape that is “inconsistent and disorderly”, with a sharp change in building height between the five storey development on the site and a future three storey development of 7 Memorial Drive, or its existing two storey development. In their opinion, if 7 Memorial Drive had been amalgamated with the site an orderly streetscape could be achieved with a five storey proposal on the larger site, transitioning to four storeys on the other development sites. They acknowledged that changes could be made to reduce the height of the development where it adjoins 7 Memorial Avenue (Exhibit E), which would better address the proposal’s relationship with this property, but would not resolve their concerns about the streetscape outcome of a fifth storey.

27. Mr Kinninmont and Mr Smith accepted that the proposal was consistent with the objectives for the R4 - High Density zone but not with the objectives of the height standard in cl 4.3(1) of the LEP. In particular, the fifth storey results in a bulk of development that is not compatible with the size of the land to be developed and is not consistent with objective (c). They do not agree that the fifth storey is recessive or that it will not be visually prominent.

FSR and request under clause 4.6 of the LEP

28. Mr Boston provided a written request pursuant to cl 4.6(3) to vary cl 4.4(2E) of the LEP. The written request states that a variation to the FSR standard can be supported for similar reasons to those articulated in the request for a variation the height standard, which are discussed above. In particular, Mr Boston noted that the proposal would satisfy objective (b) of the FSR control as the built form and density of the development is compatible with the size of the land, it has no environmental constraints and will achieve an appropriate contextual relationship. Mr Dickson supported this view for the same reasons as those provided in response the height variation.

29. For similar reasons to those advanced in response to the request to vary the height standard, Mr Kinninmont and Mr Smith did not agree that the written request under cl 4.6(3) of the LEP demonstrates that compliance with the FSR standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. They accept that some variation to the FSR control may be acceptable but that this should not result in a five storey built form but should be distributed elsewhere on the site.

28. Mr Kinninmont and Mr Smith consider that the proposal does not meet objective (b) of cl 4.4 of the LEP as the built form is not compatible with the contextual relationship in the street due to the non-compliance with the height control and resulting scale difference with 7 Memorial Avenue and future redevelopment of the land in the street.

Findings

31. Clause 4.6(2) enables development consent to be granted to a development, which contravenes a development standard if the requirements of cl 4.6(4)(a) and (b) are satisfied. This is a precondition that must be met before the proposed development can be approved on a consideration of its merits.

32. In Carlingford Investments Pty Ltd v The Hills Shire Council [2015] NSWLEC 1022, Brown C outlines an appropriate assessment framework for cl 4.6. He states at [24] to [26]:

24 Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

25 In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

26 A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

Is the proposed development consistent with the objectives of the zone? (cl 4.6(4)(a)(ii))

33. The objectives of the R4 High Density Residential zone under the LEP seek to meet the housing needs and provide a variety of housing types in a high density residential environment, close to public transport and employment.

34. The parties did not raise consistency with the zone objectives as an issue in the proceedings but disagreed on whether the variation to the height and FSR control would better achieve the objectives of the zone than a complying development by providing greater density. It is not necessary for me to determine this difference of opinion, but merely to be satisfied that the proposal is consistent with the objectives of the zone, as a complying development would also be, and is therefore in the public interest.

35. Given that there is no dispute on consistency, pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is consistent with the zone objectives and is therefore in the public interest.

Is the proposed development consistent with the FSR standard objectives? (cl 4.6(4)(a)(ii))

36. The relevant objective of the FSR standard in cl 4.4(1) of the LEP that was in dispute between the parties is:

(b)  to enable development with a built form and density compatible with the size of the land to be developed, its environmental constraints and its contextual relationship,

37. The experts agree that to be compatible the development does not need to be the same but should “be capable of coexisting together in harmony” (see Project Venture Developments v Pittwater Council [2005] NSWLEC 191). There are no environmental constraints on the land and the experts disagreement centred on the whether the fifth storey would achieve a built form that is compatible with the land to be developed and its contextual relationship, particularly the relationship with 7 Memorial Drive. Consequently, the consideration of the FSR objective is linked to a consideration of the height of the proposal, primarily the fifth floor.

38. The context which the development should relate is principally the land from 3-19 Memorial Avenue. This is an area undergoing transition and the existing detached dwellings are most likely to be redeveloped with residential flat buildings. Due to the size of the existing allotments, the arrangement of access ways and the planning controls the desired future character will result from the most likely pattern for redevelopment of these sites, which is shown on Ex 6. 3-6 Memorial Avenue cannot amalgamate with 7 Memorial Avenue as it is separated by an access way. While there is the potential for 3-6 Memorial Avenue to amalgamate with the council car park, this is unlikely in the short term as it is owned by council and is Community land. Similarly, 15-15A cannot amalgamate with 9-11 Memorial Avenue due to the access way in between and it is unlikely that 15-15A would amalgamate with the land to the rear as this has already been redeveloped. 17-19 Memorial Avenue is already developed with a five storey building but this is significantly setback from the street due to a drainage easement. I therefore accept the evidence of Mr Kinninmont and Mr Smith that future development along Memorial Avenue is likely to be a maximum of 14.5m (4 storeys) in height with a FSR of 1.0:1, with the exception of 7 Memorial Avenue.

39. Based on the evidence of the owner of 7 Memorial Avenue, the existing use of the site as a dwelling with a doctor’s surgery is likely to remain, at least in the short term. As a single allotment with a site area of about 950sm, the redevelopment of 7 Memorial Drive would be limited under the LEP to a maximum FSR of 0.8:1 and a height of 11.5m (3 storeys). The applicant has provided a schematic diagram of a possible three storey residential development of 7 Memorial Avenue as well as shadow diagrams that indicate that acceptable solar access would be maintained to the existing and a proposed development. 7 Memorial Avenue would not meet the minimum site requirements for multi dwelling housing and residential flat buildings under for Clause 6.5 of the LEP. Consequently, redevelopment of the site would be limited to other uses that are permissible in the Land Use Table for the R4 zone, which, other than shop top housing, would generally be low scale. Alternatively, redevelopment would rely on the provisions of other planning instruments such as State Environmental Planning Policy (Affordable Rental Housing) 2009. Despite these reservations, I accept the experts’ agreement that 7 Memorial Avenue can be developed in isolation, in accordance with the planning controls.

40. The key concern of Mr Kinninmont and Mr Smith was the contextual relationship of the proposal with 7 Memorial Drive. I accept their evidence that the relationship of the proposal does not achieve an acceptable contextual relationship either with the exiting building or likely future redevelopment of 7 Memorial Avenue. The transition between two storey (existing) or three storeys (potential redevelopment) and the five storeys proposed on the site does not achieve objective (b) of the FSR standard. While the changes in Exhibit E would improve this relationship they would not resolve the contextual relationship of the proposal with the remainder of the street where the proposal would appear as five storeys and other development would be four storeys.

41. While there are large five storey buildings to the rear, which form a backdrop to the site, these are not the principle context within which the development is to be compatible. These buildings were developed under previous planning schemes and are on much larger sites than the proposal.

42. Mr Staunton, for the applicant, submits that the LEP envisages abrupt changes in scale, otherwise the range of uses in the R4 zone, different FSRs and heights, would not be permitted. I do not accept this submission as justifying the proposal. The different FSRs and heights in the controls correspond to different land sizes, put simply the larger the site, the larger the built form resulting from height and FSR controls. Inherent in these controls is an incentive to encourage lots to amalgamate and create larger development sites. The first part of objective (b) of the FSR standard “to enable development with a built form and density compatible with the size of the land to be developed” deals with this concept. As Mr Smith states:

The amalgamation of lots has the benefits of providing consistent streetscapes, the orderly and economic use of land, efficient apartment and building layouts. Amalgamation reduces constraints and impact on adjoining site that can effectively be managed internally on larger sites.

43. While, I accept that it is not reasonably feasible for the site to be amalgamated with 7 Memorial Avenue, it would be able to be redeveloped in accordance with the planning controls. However, I do not accept that this is a ground for the site achieving a greater FSR and height that it could achieve if it were to have been amalgamated. If this were the case, there would be no reason why the other land in the street could not also be redeveloped with an increased FSR and height, despite not achieving the site areas required by the FSR and Height standards.

44. For development to achieve a built form and density compatible with the size of the land to be developed involves a consideration of the size of the land, but also the factors discussed by Mr Boston, such as dimensions, slope, topography, and also the concept that the larger the site the larger the built form. While the site may achieve the minimum required site coverage and deep soil landscape area, the scale relationship of these areas to the height and bulk of the building is not the same as it would be if were to be redeveloped with a four storey building rather than a five storey building. The scale relationship is not a matter that is limited to within the site but it is also how the built form and its relationship to the land would be perceived from adjoining properties and the public domain. While the fifth floor is setback from the floors below, this is not sufficient for it to be recessive and it will be able to be viewed as an additional storey on the building from various vantage points, particularly from the park.

45. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I am not satisfied that the proposed development is consistent with objective (b) of the FSR control in cl 4.4(1) of the LEP. It is therefore not in the public interest, and consent cannot be granted.

46. The relevant objective of the height standard in cl 4.3(1) of the LEP that was in dispute between the parties is:

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

47. This is the same as the first part of objective (b) of the FSR control in cl 4.4(1) of the LEP. For the reasons, which I have discussed above, and pursuant to cl 4.6(4)(a)(ii), I am not satisfied that the proposed development is consistent with objective (c) of the height standard in cl 4.3(1) of the LEP. It is therefore not in the public interest, and consent cannot be granted.

48. As the cl 4.6 variation fails on these grounds it is not necessary for me to consider, pursuant to cl 4.6(4)(i), whether the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) namely:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

that there are sufficient environmental planning grounds to justify contravening the development standard.

49. I note that the genuine attempts to amalgamate the site with 7 Memorial Avenue and its ability to be redeveloped as a separate site would not be reasons to satisfy subclause (3). On the contrary, the non-amalgamation of the site and the size of other potential development lots in the street demonstrates that compliance with the standards is reasonable and necessary. The characteristics of this site are unlikely to be different to those of the other development sites in street and upholding the cl 4.6 variation on this site would effectively result in an expectation that a development with a 17.5m height and FSR of 1.3:1 is permissible on the other land, subject to a merit assessment. Such a change to the planning regime is more appropriately dealt with through the strategic planning process rather than in response to individual development applications.

50. If I were to have been satisfied with the matters in cl 4.6(4)(a)(ii), it would have been necessary for the parties to be given the opportunity to address the recent decision of Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, which provides further guidance on the matters to be demonstrated in the written request required under cl 4.6(3) and the satisfaction required under cl 4.6(4)(a)(i).

Merit consideration and changes

51. As the matters in cl 4.6(4)(a)(ii) have not been satisfied, the application is prohibited and a consideration of the merits of the application is not required. Nevertheless, the merit matters would generally involve the same consideration as that discussed above, principally the height of the building and its relationship to 7 Memorial Avenue and the streetscape. The development in its current form would not meet the requirements of the LEP and DCP and the proposed changes discussed during the hearing are also not sufficient to address these concerns. However, a four storey (14.5m) proposal, with the upper floor (forth storey) setback in a similar manner to the current fifth storey (to be deleted), would be acceptable, as it would comply with the height standard and reduce the FSR to also comply with that standard or, if not, to an acceptable level that would achieve the objectives of the control as it would be within a built form which is compatible with the land and its context. I am satisfied that these changes are ameliorative, within the scope of an amended application and not a new development application. For certainty, it is appropriate that they be incorporated into amended plans rather than as conditions of consent.

52. The proposed changes to the height and FSR of the proposal were not discussed with the applicant during the hearing, but Mr Staunton indicated that if I were to find that further amendments were required, I should make preliminary findings rather than refuse the application. In these circumstances, it is appropriate that the applicant be given time to consider the implications of this decision, and whether it wishes to amend the application in accordance with the findings of this judgment. In which case, the development application, as amended, could be capable of approval. Alternatively, if the applicant does not choose to prepare the required amended plans, the application will be refused.

Directions

53. The Court makes the following Directions:

1. The applicant is to advise by ecourt on or before 29 June 2015 whether it chooses to amend the application in accordance with the findings in this judgment.

2. If the applicant chooses to amend the application, the parties are to file by ecourt on or before 1 July 2015 agreed directions as to the filing of the amended plans, supporting information and agreed conditions;

3. Upon the receipt of the satisfactory information in Direction 2, orders will be made in Chambers approving the application.

4. If the applicant chooses not to amend the application, orders will be made in Chambers refusing the application.

Annelise Tuor

Commissioner of the Court

10654 of 2014 Tuor 07.09.15 (O) (9.63 KB, pdf)

10654 of 2014 Tuor (C) (375 KB, pdf)

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Decision last updated: 21 September 2015