Christou v Wollongong City Council

[2024] NSWLEC 1018

Land and Environment Court

New South Wales

Medium Neutral Citation:

Christou v Wollongong City Council [2024] NSWLEC 1018

Hearing dates:

18 and 19 October 2023

Date of orders:

24 January 2024

Decision date:

24 January 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

Proceedings 2022/358734:

The Court orders that:

(1)   The appeal is dismissed.

(2)   Development application DA-2021/1316 for minor alterations and prospective use of part of an existing industrial building for storage purposes, and associated development at Lots 1, 2, 3 and 4 in SP 37585 (No. 47) Montague Street is determined by refusal of consent.

(3)   The exhibits are returned except Exhibits A, B, C, D, G and 11 which are retained.

Proceedings 2022/358735:

The Court orders that:

(1)   The appeal is dismissed.

(2)   Building information certificate application no. BIC-2022/55 is refused.

Catchwords:

APPEAL – development application – building information certificate application – minor alterations and prospective use of existing industrial building for warehouse purposes – associated parking and landscape changes – contravention of floor space ratio development standard is determinative – no cause to direct the issue a building information certificate in relation to unauthorised industrial building

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 8.25, 8.8

Land and Environment Court Act 1979, s 34

Standard Instrument—Principal Local Environmental Plan (Standard Instrument), cl 4.6

Wollongong Local Environmental Plan 2009, cll 4.4, 4.6, 5.21,

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Jacobs v Waverley Council [2019] NSWLEC 1232

Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Amalia Christou (First Applicant)
Themistoclis Christou (Second Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
J Reilly (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicants)
Wollongong City Council (Respondent)

File Number(s):

2022/358734
2022/358735

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The two proceedings before me here relate to an existing, albeit unauthorised, warehouse structure located at 47 Montague Street, North Wollongong, legally described as Lots 1,2,3 and 4 in SP Plan 37585.

2. Montague Street is located within an industrial precinct in North Wollongong and generally occupies a north-south alignment. 47 Montague Street is located on the eastern side of the street. Within 47 Montague Street there are two rows of metal clad industrial buildings, which would appear to be mostly used for warehousing purposes. The two rows run in an east-west direction along the northern and southern boundaries. The two industrial buildings are separated by a central vehicle access. The unauthorised warehouse structure provides for an eastern extension to the otherwise already approved northern row of industrial buildings.

3. The two proceedings are each appeals under Class 1 of the Court’s jurisdiction and are outlined as follows.

4. Proceedings 2022/358734 is an appeal against the refusal by Wollongong City Council (Council) of a development application (DA) relating to the unauthorised warehouse structure. Council assigned the following reference number to this DA: DA-2021/1316. The details of the application as indicated in the DA form (Class 1 Application filed 28 November 2022 marked Ex A in the proceedings) indicate that the proposal is for “minor alterations and prospective use of part of an existing industrial building for storage purposes at Lots 1, 2, 3 and 4 in SP 37585 (No. 47) Montague Street…”. Henceforth I will refer to proceedings 2022/358734 as the DA appeal. It is noteworthy that the DA appeal particulars were amended by notice of motion granted by the Court on 16 August 2023. Relevantly, the material behind Tabs A and B in the Annexure to the Affidavit of A Burgess filed on 8 August were marked Ex B in the proceedings. The material behind Tab A contained plans prepared by Oasis Building Design. The material behind Tab B contained landscape plans. I will come back to these plans later.

5. Proceedings 2022/358735 is an appeal against the deemed refusal by Council to issue a Building Information Certificate (BIC) in relation to the unauthorised eastern extension of the northern row of industrial buildings. The BIC application form indicates it is “for the regularisation of an existing storage shed at Lots 3 and 4 in SP 37585 (No. 47) Montague Street…”. Council assigned the following reference number to this BIC application: BIC-2022/55. Henceforth I will refer to proceedings 2022/358735 as the BIC appeal.

6. The DA appeal is brought under s 8.7 of the Environment Planning and Assessment Act (EPA Act). The BIC appeal is brought under s 8.25 of the EPA Act.

Context

Physical setting

7. I rely on Council’s statements of facts and contentions in relation to the DA appeal (Ex 7) and the BIC appeal (Ex 11) for much of the descriptive material in this contextual section.

8. 47 Montague Street is somewhat irregular in shape with a street frontage of 27.43m to Montague Street and rear frontage to Cabbage Tree Creek of approximately 22.5m. See Figure 1. Ex 7 (par 6) references two different site areas: (1) an area of 2466m² – according to what is indicated to be the “registered plan” and an area of 2488m² – according to “submitted plans”.

Figure 1 Site and environs (source: Ex 11 par 3)

9. The site environs are subject to flooding. Existing ground floor level in the vicinity of the unauthorised structure is agreed as 4.20m AHD whereas the 1% AEP flood level is noted as 4.47m AHD, with probable maximum flood indicates as 5.45m AHD (Joint expert report by flooding experts (Ex 4) p 2).

Further particulars on the DA appeal site

10. I understand that the site for the DA appeal, and the area shaded red in Figure 1, comprises the whole of the land encompassing Lots 1, 2, 3 and 4 in SP37585 and that this defined area coincides with the area understood to be 47 Montague Street. Henceforth I will call this area the DA appeal site. This is relevant because it will be seen that DA appeal, as now before the Court, requires consideration of the total gross floor area (and floor space ratio) of the DA appeal site.

11. There is expert evidence before the Court relating to existing and proposed gross floor area (with inclusion of use of area within the unauthorised warehouse structure). This evidence related to measured gross floor area within the existing metal clad industrial buildings, adopting certain assumptions. There is agreement between the experts that there is a contravention of the applicable floor space ratio (FSR) development standard (see [15]), but disagreement on the extent of the contravention.

12. Also in evidence and of some relevance at least to the topic of FSR is the fact of DA 2016/1526, a development consent issued on 12 January 2017 in relation to what is sometimes termed in the evidence as Unit 1 and 2 within the DA appeal site. Correspondingly, the terminology “Lots 1 and 2” are used in the stamped drawings to DA 2016/1526 (Ex E). While full details on this consent were not available, it seems clear enough that what I will call Unit 1 is understood as the front half of the southern of the two industrial buildings within the DA appeal site. DA 2016/1526 appears to provide consent for an additional 143m² of GFA in a mezzanine area. The Drawing at Ex E also refers to an earlier development application DA 87/319, particulars were not provided.

13. It is also notable that the proposal behind the DA appeal provides for some changes to parking and landscaping in other locations apart from the area of the unauthorised warehouse structure. A further historical development consent for the DA appeal site was also tendered into evidence with fuller particulars (Ex 1 Tab 13, with a larger format version of the DA drawings tended as Ex D). The consent plans indicate certain landscaping and parking provisioning which would be altered with the current proposal before the Court. I come back to this later.

Statutory planning setting

14. This area of the Montague Street environs is zoned E4 General Industrial Zone under Wollongong Local Environmental Plan 2009 (WLEP). The zone objectives are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To allow some diversity of activities that will not significantly detract from the operation of existing or proposed development or the amenity enjoyed by nearby residents, or have an adverse impact on the efficient operation of the surrounding road system.

15. Directly relevant to the hearing, cl 4.4 of WLEP provides that the maximum FSR for a building on any land is not to exceed the FSR shown for the land on WLEP's FSR Map. The maximum permitted FSR for the site is 0.5:1. It is agreed that, in relation to the DA appeal, the addition of the unauthorised warehouse structure to the site’s existing GFA would provide for a contravention of the maximum permitted FSR for the site.

16. Wollongong Development Control Plan 2009 (WDCP) also applies.

BIC appeal context

17. Relevantly, building information certificates, among other things, provide for a council to certify that it will not make orders or commence proceedings requiring a building to be repaired, demolished, altered, rebuilt, or the like, for a period of seven years from the date of issue of the certificate.

18. Jurisdictional considerations in relation to BIC application appeals are found at ss 6.25 and 8.25 of the EPA Act. Subsection 6.25(1) of the EPA Act provides that:

(1)  A building information certificate is to be issued by a council only if it appears that—

(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

19. Section 8.25(3) of the EPA Act provides that, with respect to appeals against a council’s refusal to issue a building information certificate, the Court may (among other things), in instances where it sees it as appropriate, “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit”. The applicant’s BIC appeal seeks that the Court make such orders (Ex G).

Issues

20. The central issue in this dispute and determinative in this case is the fact of a contravention of the FSR standard applicable to the site under cl 4.4 of WLEP. This issue involves a jurisdictional threshold. There were other issues in play during the hearing. These were essentially: flooding, parking and landscaping. Because of my finding that there is no jurisdiction available in this instance, as a consequence of the FSR contravention, I do not need to make substantive findings on these other topics.

21. The key experts providing evidence in this matter were town planners R Logan (appointed by the applicant) and C Bell (appointed by Council). I also note the flooding evidence from D Martens (appointed by the applicant) and M Carden (appointed by Council).

Floor space ratio contravention

22. The applicable FSR standard under cl 4.4 of WLEP is 0.5:1, which is contravened. Clause 4.6 of WLEP provides for a pathway for the granting of development even though the development would contravene a development standard.

23. I am aware that cl 4.6 of the Standard Instrument—Principal Local Environmental Plan (Standard Instrument) was amended on 15 September 2023 (see Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023). The amended provisions commenced on 1 November 2023 and apply to development applications lodged after 1 November 2023. As such, any development application lodged and not yet determined on 1 November 2023, such as the DA appeal before me here, need to be assessed under the provisions of cl 4.6 of WLEP as applying prior to 1 November 2023. It is these provisions which are under attention in my consideration below.

Conditional permissive powers

24. The permissive powers within cl 4.6(2) of WLEP (as applying prior to 1 November 2023) which allow approval of a proposal notwithstanding a contravention of a development standard, such as the FSR contravention evident in this proposal, are subject to the restrictions at subcll 4.6(3)-(5) of WLEP:

(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.

25. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) of WLEP to enliven the permissive power under cl 4.6(2) to grant development consent in instances of a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]).

26. The first opinion of satisfaction (under cll 4.6(3) and 4.6(4)(a)(i) of WLEP), 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) of WLEP.

27. The applicant has opened the door to the Court’s consideration of the use of the permissive powers at cl 4.6(2) of WLEP by providing a written request seeking to justify the height of building contravention. The written request was prepared by Mr Logan and was dated 13 October 2023 (Ex C).

Particulars of the contravention

Written request’s adopted gross floor area

28. The written request refers to plans prepared by Oasis Building Design. The relevant plans can be described as Drawing A-07 behind Tab A in Ex B. These plans provide what I understand to be estimated existing gross floor area within the approved industrial buildings and include an estimate of GFA within the unauthorised building area. Drawing A-07 shows “Unit 1” and “Unit 2” within the building along the southern side of the DA appeal site, and “Unit 3” and “Unit 4” within the building along the northern side of the DA appeal site. The unauthorised structure (the subject of the BIC appeal and relating to the DA appeal) at the extension of the building along the northern side of the DA appeal site is shown as “Unit 5”.

29. The written request indicates (Ex C section 2.1)

“Of note - the calculations include all mezzanine areas that constitute habitable NCC compliant floor areas with the remainder being raised storage areas.

There are two excluded loading and unloading areas, one in Unit 1 of 17m² and an area of 78m² in Unit 5. The space used for loading or unloading of goods (including access to it) in Unit 5 is on the basis that the area is below the flood level and is not available for storage purposes, is necessary to allow an OHS compliant gradient for use of a forklift (which is the loading vehicle for the proposed racking in the building) and is at a contiguous grade with the adjacent driveway and loading dock.”

30. It draws the conclusion that the entirety of the site GFA with inclusion, relevantly, of certain other area within the unauthorised structure, would be 1352m². Adopting a site area of 2466m² (which seems to me to follow the correct approach), an FSR of 0.548:1 is calculated, “equivalent to a 9.6% variation to the floor space ratio development standard” (Ex C section 2.2).

31. As indicated, this figure excluded an area of 78m² within Unit 5 as a loading bay. The loading bay area was detailed more clearly by Mr Logan with his preparation of a supplementary drawing marked Ex L. It is also noteworthy that Council disputed the loading area of 17m² within Unit 1.

Alternative arguments in relation to gross floor area

32. Ms Bell argued that neither of the areas indicated for loading bays should be excluded from GFA because they were being used for storage. Inclusion of these areas would bring the gross floor area calculation to 1447m² with an FSR of 0.587:1 and a departure of around 17%.

33. There was considerable evidence and submissions in regard to the suitability of exclusion of what was termed the loading bay area of 78m² within “Unit 5”. Noteworthy is that the applicant made clear that this was the application, and that there was a coherence to the need for this internal loading bay as, due to flooding, the storage of goods itself would be elevated. Conditions of consent were suggested to direct that no storage of goods occur in the area marked as loading bay within Unit 5 (Ex K).

34. I am aware that Drawing A-07 adopts 0m² for mezzanine storage area within Unit 2. I also, myself, raised the point during the proceedings that there did appear to be some, what I will call, mezzanine storage occurring within this unit based on site photos (Tcpt 19 October 2023 p 6 (4 et seq)). As I understood it the experts did not dispute that this storage was in existence but it was indicated that, at an earlier point (during conciliation under s 34 of the LEC Act) agreement was reached not to include these area as GFA. Mr Logan indicated the reasoning behind this was that these areas within Unit 2 did not have a balustrade and thus were not “BCA compliant”. I think Ms Bell conceded that she had agreed to this approach at the time, but seemed somewhat reticent on this position in her oral evidence (eg Tcpt 19 October 2023 p 6 (41)-(43)).

35. While I did have some degree of concern as to the particulars of the applicable GFA, it seems to me both a practical approach and in the interests of justice, that I test the position as put by the applicant in this appeal, including in its cl 4.6 written request particulars. In coming to this conclusion, I do have regard to what seemed to have been a good faith position adopted by the experts with respect to apparent mezzanine storage in Unit 2. While I do not say I am convinced of the arguments put (relating above ground storage as an agreed activity on a site to a requirement for a balustrade in accordance with National Construction Code), it would be reasonable for me to give more opportunity for the applicant to argue its case were I to find fault with it here in regard to GFA for Unit 2. In addition, and cognisant of the applicant’s suggested consent conditions (Ex K) and the findings of Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 [35] I adopt the applicant’s position with respect to the loading bay in Unit 5 as described. The “loading area” within Unit 1 is 17m², relatively minor in the scheme of things here. In light of the concentration on other GFA areas in the evidence, I do not see any concern of significance in accepting Mr Logan’s position on the “loading area” within Unit 1.

32. I will now turn to the particulars of written request.

Whether written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances.

37. The first opinion of satisfaction, under cl 4.6(4)(a)(i) of WLEP, itself involves two thresholds. The first of these is that a consent authority must not grant consent unless it is satisfied that the written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances (WLEP cll 4.6(3)(a)).

38. The written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances mindful of Preston CJ’s findings in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first “Wehbe way”, seeking to show how the development achieves the objectives of the standard, notwithstanding the contravention of the FSR standard at cl 4.4 of WLEP. 

39. There are three nominated objectives to cl 4.4 of WLEP. Objective (a) is as follows:

(a) to provide an appropriate correlation between the size of a site and the extent of any development on that site,

40. In each instance, for cross referencing purposes, I cite particular arguments put in the written request with respect to each of the nominated objectives to cl 4.4 of WLEP. In relation to Objective (a) of cl 4.4 of WLEP, the written request argues that:

“The "extent" of development of a site generally relates to the extent of the building footprint when gauged in relation to the size of a site.

The current floor space ratio generated by the footprint of buildings on this site is 0.46:1. That calculation includes both internalised loading areas but excludes the mezzanine areas which do not contribute to the visible extent of development of the site.

The extent of development is within the anticipated scale of development within the industrial zone and is consistent with development in the locality.

The proposal is therefore considered appropriate in scale for the subject site, noting that the mezzanine areas are storage areas and do not contribute significantly to the intensity of use of the site and is also not inconsistent with the objectives for development in the E4 General Industrial zone. Based on the above commentary, this objective is considered to be achieved.”

41. Objective (b) of cl 4.4 of WLEP is as follows:

(b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate

42. In relation to Objective (b) of cl 4.4 of WLEP, the written request argues that:

“The primary industrial floor area on the site (excluding the mezzanine areas) is 1044m² generating a FSR of 0.42:1.

In approving the existing mezzanine areas (DA2016/1526 12 Jan 2017) the Council assessor at the time noted in consideration of carparking requirements, at 2.3.1 of the assessment report, that the use of the mezzanines related to storage only and no increased car parking demand was anticipated.

With regard to availability of services and the amount of vehicle and pedestrian traffic that the development will generate the capacity of the site is well within its potential and the inclusion of the mezzanine areas (which results in the technical gross floor area exceedance by 119m² ) does not generate excessive visitation to the site or place additional demand on services.

Based on the above commentary, this objective is considered to be achieved.”

43. Objective (c) of cl 4.4 of WLEP is as follows:

(c) to ensure buildings are compatible with the bulk and scale of the locality.

44. In relation to Objective (c) of cl 4.4 of WLEP, the written request argues that:

The bulk and scale of the building is appropriate for the land use typology proposed and is consistent with the scale of development in the locality.

As previously noted the internal mezzanine areas do not contribute to the bulk and scale of the buildings on the site and if excluded from the GFA calculation would result in a complying FSR of 0.42:1.

It is also noted that Council has previously approved a building of the same extents as that now under consideration (DA1992/597)

The bulk and scale of the proposed built form is also not inconsistent with the objectives for development in the E4 General Industrial zone.

Based on the above commentary, this objective is considered to be achieved.

Consideration

45. As indicated above, the written request seeks to demonstrate that compliance with the FSR development standard is unreasonable and unnecessary using the first Wehbe way (ie that the development achieves the objectives of the standard, notwithstanding the contravention). Having considered both the written request’s particular nominated arguments with respect to individual to each of the nominated objectives to cl 4.4 of WLEP, and the content of the written request more generally, in my opinion the written request fails to establish that the objectives of cl 4.4 have been achieved, notwithstanding the FSR contravention. It is helpful for me to call to mind the rationale behind the first Wehbe way, as explained by Preston CJ, in Wehbe (at [43]):

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

46. For explanatory convenience, initially, I consider the written request’s arguments as documented. But at the conclusion of this section I draw the points together by considering the written request as a whole.

Written request’s arguments giving direct consideration of Objective (a) of cl 4.4 of WLEP

47. It seems to me that the written request gets off on the wrong foot when considering Objective (a) of cl 4.4 of WLEP. I am not convinced by the written request’s relating of “‘extent’ of development” “generally” to extent of building footprint. The environmental or planning objectives which is evident here is concerned with correlating site size and extent of development. While building footprint may be a gauge of visual extent of development, a planning goal relating to managing “extent of any development” would reasonably be expected to go beyond what is visible to include the intensity of development and thus, in this instance, considering the extent of storage areas which fall within the building footprint. Thus the first two paragraphs of the written request’s arguments with respect to Objective (a) of cl 4.4 of WLEP fail to demonstrate that the proposal would provide an appropriate correlation between the size of the site and the extent of proposed development.

48. The third paragraph provides statements that the extent of development would be “within the anticipated scale of development within the industrial zone” and that it would be “consistent with development in the locality”. Evidence is lacking with respect to each statement. The fourth paragraph draws conclusions based on earlier paragraphs which were themselves not convincing. It also indicates that the mezzanine areas “are storage areas and do not contribute significantly to the intensity of use of the site”, a point which is not backed up by evidence. It seems to me, as a general point, that the extent of floor area links by corollary to the amount of goods stored and then, again generally, the amount or intensity of activity (vehicle and people movement for example) associated with the storage of the said goods. That is to say for this use, the amount of storage area (mezzanine or otherwise) should be generally seen as relating to the intensity of use of a site.

Written request’s arguments giving direct consideration of Objective (b) of cl 4.4 of WLEP

49. The concern with the written request arguments with respect to Objective (b) of cl 4.4 of WLEP are that again they present as statements which are not supported by sufficient evidence. There is a general reliance on mezzanine areas not being particularly contributory to intensity of use (all paragraphs). In paragraph 2, reliance is placed on a 2017 Council assessor’s report which found no increased parking demand was anticipated for that particular development. There is no commentary in relation to potential for increased delivery/service vehicles for the proposed use. The written request is not assisted by any analysis of pre-existing site activity (“vehicle and pedestrian traffic”), or projections with any future increased activity. The third paragraph provides a statement without supportive evidence.

Written request’s arguments giving direct consideration of Objective (c) of cl 4.4 of WLEP

50. This particular objective is directly concerned with “buildings” and that they are “compatible with the bulk and scale of the locality”. The first paragraph of this section of the written request provides a statement without supportive evidence. The second paragraph correctly, in my view, highlights the point that mezzanine areas (in instances where FSR is otherwise contravened) do not contribute to building bulk. As the objective is concerned with whether buildings are compatible, rather than development related to them, this is an important point. The third paragraph relies on a Council approval granted over 30 years old. There is no attempt to enhance the persuasive force of this point by examining whether the same policy settings apply. There is, on the other hand, evidence to indicate that different policy settings apply with respect to landscaping (which I consider briefly below). My concern in relation to this objective is that the written request does not take into account the particulars of the (existing unauthorised) building extension and demonstrate its compatibility with the bulk and scale of the locality. Landscaping can be reasonably seen as a factor in determining questions relating to compatibility with bulk and scale. Of note to me here is that a current development consent applying to the site, at least as presented in the drawings at Ex 1 Tab 13 and Ex D depicts landscaping along an area of the site which would not be possible with approval of the DA before me now. It is the case that some other landscaping is proposed, but the written request does not sufficiently examine the question of landscaping as a factor in ensuring building compatibility in relation to other building bulk and scale in the locality. There is also no mention of the existing WDCP provisions relating to landscaping of industrial development, even to argue that the nominated numerical provisions of 10% should not apply in this instance (Part 9.2 of Chapter B5 of the WDCP). On balance I am not satisfied that the written request has demonstrated the proposal achieves this particular objective of cl 4.4.

General arguments in written request that compliance with the development standard is unreasonable or unnecessary in the circumstances

51. At a number of points the written request, in support of the argument that compliance with the development standard is unreasonable or unnecessary in these circumstances, argues that the proposal satisfies or is not inconsistent with the objectives for development in the E4 General Industrial zone. At section 4.2.4 of the written request, arguments are put in support of this point. I have reviewed these arguments. I found that the E4 zone objectives were working at a level of generality beyond the more specific environmental or planning objectives relating to the FSR standard. That is to say, while the development may well be consistent with some or all of the zone objectives, something more particular in the way of argument, would be necessary to assist in meeting the ambition to demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the applicable circumstances.

Whether written request adequately demonstrates sufficient environmental planning grounds

52. A further requirement to trigger the permissive powers of cl 4.6 of WLEP requires a finding of satisfaction that the written request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify the contravention (WLEP cll 4.6(3)(b) and 4.6(4)(a)(i)).

53. At section 4.2.2, the written request nominates environmental planning grounds, seen as sufficient to justify the contravention. The general argument put is that there is an absence of harm arising from the contravention and that there are positive planning benefits. The “rationale” for these arguments, as put in the written request, is reproduced below:

• The proposal is consistent with the objectives of the development standard and the objectives for development in the E4 General Industrial Zone, as noted elsewhere in this request.

• The additional floor space above and beyond the 0.5:1 FSR limit will not generate an increase in traffic generation such that there will be any impact on the surrounding road network. The intensity of the development in terms of its traffic generating potential is therefore acceptable notwithstanding the FSR non-compliance.

• The mezzanine areas, which comprise a gross floor area of 308m² or 12.4% of the total gross floor area of the buildings, are effectively hidden from view and, in practical terms, this floor space does not contribute appreciably to the bulk and scale of the buildings on the site.

• The bulk and scale of the proposal is generally visibly less intense than more recent redevelopment in the broader locality and will be somewhat softened by proposed landscaping to the front boundary and rear.

• The proposal provides for a number of positive social and economic benefits including providing for the ongoing economic viability and productivity of the existing businesses on the subject site and the surrounding industrial locality more generally.

• There is no planning purpose to be served by strictly limiting the floor space ratio of the building to the maximum FSR allowable given the absence of any amenity related or environmental impacts and satisfaction of the objectives of the floor space ratio development standard.

Consideration

54. These arguments in the written request do not satisfy the requirement to establish sufficient environmental planning grounds to justify the FSR contravention. My concerns with this aspect of the written request can be summarised as follows.

55. In relation to the second bullet point (in the written request’s “rationale” as reproduced at [53]), the statement that additional floor space beyond the standard “will not generate an increase in traffic generation such that there will be any impact on the surrounding road network” is not supported by evidence. Neither does it address any potential concern that the additional floor space might generate traffic which results in internal (ie on-site) problems.

56. In relation to the fourth bullet point, the statement that “bulk and scale of the proposal is generally visibly less intense than more recent redevelopment in the broader locality” is not supported by evidence. The reliance on bulk and scale being “somewhat softened by proposed landscaping to the front boundary and rear” does not account for the fact that a current consent provides for landscaping at the site frontage and along the northern side boundary (in an area which would no longer be available for planting were the proposal to be approved).

57. In relation to the fifth bullet point, the statement that there would be a number of positive social and economic benefits is not supported by evidence. It may be the case that the contravening floor space provides an economic benefit for the current property owner or whoever has practical control of the site (ie by providing for storage space in excess of the development standard) but this is a private benefit and competes with the more general public interest in maintaining and orderly and, to the extent reasonable, predictable system of planning controls.

58. In relation to the sixth bullet point, I have already found inadequacies in relation to the suggested satisfaction of WLEP’s FSR development standard objectives. Further, in relation to the question of development standards and strict compliance or otherwise, the statutory path for the granting of consent notwithstanding a development standard contravention is that mapped out in cl 4.6 of WLEP.

59. The first bullet point suggests the proposal, incorporating the contravening floor area, is consistent with the objectives of the E4 General Industrial Zone. Section 4.2.4 of the written request works through the five zone objectives arguing various points in support. I find that the level of generality involved in both the objectives and the responses provided in the written request do little to explain “planning grounds” sufficient to support the contravention.

60. I accept the point made in the second bullet point, that mezzanine areas comprise a significant amount of the overall floor space, and therefore what might be thought of as contravening floor space is “hidden from view”. However, this is a limited planning ground in my view and insufficient here, as it was when it was put in regard to the demonstrations of compliance with development standard objectives.

61. More broadly, and here I am mindful of the written request’s argument that there is an absence of harm from the contravention and that there are positive planning benefits, I am not satisfied that the written request examines the planning context of the proposal sufficiently. To do so would bring about an examination of what constitutes the current approval. I understand this to be, relevantly, represented in the drawings at Ex 1 Tab 13 and Ex D. The current approval shows landscaping within the site front setback area, along the northern boundary and a significant landscape buffer along the interface with Cabbage Tree Creek. The proposal before the Court would have parking and hardstand up to the property boundary to the rear. There is additional planting along the northern boundary proposed, but there is no examination of the implications of the loss of landscaping which is required under a current approval, especially mindful of the creek interface. The written request does not make any great claims in respect to landscaping but does makes a reference to building bulk being “somewhat softened by proposed landscaping to the front boundary and rear” (Ex E section 4.2.2). But the written request is unsuccessful in convincing this reader that what is proposed is an improvement over that which is already required.

62. When I turn to the overriding arguments in the written request suggesting sufficient environmental planning grounds (see [53]), that is: (1) there is an absence of harm arising from the contravention and (2) there are positive planning benefits; I am not convinced of the persuasive force of either point. First, and similar to my finding in Jacobs v Waverley Council [2019] NSWLEC 1232 at [37], absence of harm, which has not been proven to be the case in this written request in any event, would not seem to me to offer sufficient grounds to override a control imposed by a statutory development standard. Second, there is scarce evidence of planning benefit with the exception of the direct private economic benefit which might accrue to parties in control of the site.

Conclusion in relation to contravention of FSR development standard

63. The written request bears a certain persuasive burden under cl 4.6(4)(a)(i), with the more specific tests relating to establishing that (a) compliance with the development standard is unreasonable or unnecessary in the circumstances and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. In closing submissions Council argued, on a number of grounds similar to that expressed in this judgement, that the written request had not satisfied these requirements. I wish to mention that I have taken note of the applicant’s closing reply submissions which were critical of what was suggested as a something of a legal dissection of the written request by Council and which seemed to suggest such an analysis was inappropriate for a document prepared by a non-lawyer (Tcpt 19 October 2023 p 53 (24-47)). On this point, it seems to me that it is necessary for the Court to give a good degree of critical analysis to a written request under the applicable statutory provisions (cl 4.6 of WLEP). In this instance, and of course not for the first time and neither necessarily due to the skills of the author, the persuasive burden has not been accommodated.

Other considerations

64. While I acknowledge the other issues which were canvassed in this case (see [20]), there is no benefit served by examining the evidence in detail here. Suffice to say it was clear to me on the evidence that the proposal did not provide significant environmental or planning improvements on the site or in the local setting in regard to those topics of flooding, parking or landscaping when compared to what is currently required of the site.

Conclusion

65. As indicated above, I am not satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of WLEP. That is that (a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) there are sufficient environmental planning grounds to justify contravening the development standard. Mindful of cl 4.6(4)(a) of WLEP, the facultative powers of cl 4.6(2) of WLEP are not available. In these circumstances, of the contravention of the FSR development standard at cl 4.4 of WLEP, there is no jurisdiction to grant consent. In turn, the DA appeal must be dismissed.

66. I note that in closing submissions the applicant observed that “the development application and building information certificate are inexorably linked in these proceedings” (Tcpt 19 October 2023 p 39 (7)). I agree with this description. Given my finding that the DA appeal must be dismissed I find no cause to direct the Council to issue the applicable building information certificate. In turn the BIC appeal must also be dismissed.

Orders

Proceedings 2022/358734:

67. The Court orders that:

1. The appeal is dismissed.

2. Development application DA-2021/1316 for minor alterations and prospective use of part of an existing industrial building for storage purposes, and associated development at Lots 1, 2, 3 and 4 in SP 37585 (No. 47) Montague Street is determined by refusal of consent.

3. The exhibits are returned except Exhibits A, B, C, D, G and 11 which are retained.

Proceedings 2022/358735:

68. The Court orders that:

1. The appeal is dismissed.

2. Building information certificate application no. BIC-2022/55 is refused.

P Walsh

Commissioner of the Court

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Decision last updated: 24 January 2024