DQ and XY 78 Pty Ltd ACN 608 704 230 v Woollahra Municipal Council

[2019] NSWLEC 1053

Land and Environment Court

New South Wales

Medium Neutral Citation:	DQ & XY 78 Pty Ltd ACN 608 704 230 v Woollahra Municipal Council [2019] NSWLEC 1053
Hearing dates:	23 – 24 January 2019
Date of orders:	05 February 2019
Decision date:	05 February 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See [20] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; infill development in a heritage conservation area; exceedance of the height of buildings development standard; impact on the heritage significance of the heritage conservation area; orders.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Bettar v Council of the City of Sydney [2014] NSWLEC 107090 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	DQ & XY 78 Pty Ltd CAN 608 704 230 (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Comino Prassas Solicitors (Applicant) J Hewitt, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/208422
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. 283/2017 for the construction of a new three storey residential dwelling including a car stacker for two vehicles and a swimming pool (the proposal), at 11 Stephen Street, Paddington (the site), by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 January 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties. The agreement included amendments to the proposal, including changes to the street elevation and privacy screening to the rear elevation to avoid overlooking by the residents of the proposal of the property to the rear of the site.

3. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 4.6(2) and 5.10(4) of the Woollahra Local Environmental Plan 2014 (WLEP 2014).

The site and its context

4. The site is on the north-western side of Stephen Street. The site has an area of 230m2, with a street frontage of 12m and a site depth ranging between 18.16m to 20.145m. The existing site contains a swimming pool and is otherwise vacant. The existing ground level of the site is approximately a level below the existing level of the footpath adjacent to the street boundary.

Planning framework

5. The site is zoned R2 Low Density Residential pursuant to the WLEP 2014. The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low 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 development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

6. The height of buildings development standard for the site is 9.5m (Height of Buildings Map HOB_001 WLEP 2014). The objectives of the height of building development standard are:

(a) to establish building heights that are consistent with the desired future character of the neighbourhood,

(b) to establish a transition in scale between zones to protect local amenity,

(c) to minimise the loss of solar access to existing buildings and open space,

(d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

7. The site is located within the Paddington Heritage Conservation Area (Paddington HCA). Clause 5.10(4) of WLEP 2014 is in the following terms:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

Contravention of the height of buildings development standard

The applicant’s written request to contravene a development standard

8. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of WLEP 2014 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 v Woollahra Municipal Council [2018] NSWLEC 118 at [25] “Initial Action”). The applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

9. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 (“Wehbe”) [42]-[51] 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 at [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; or

• 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).

10. 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]).

11. The environmental planning grounds relied on in the written request under cl 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

12. The applicant provided a written request prepared by GSA Planning dated December 2018, attached to the expert planners’ joint report, seeking to justify the contravention of the height of buildings development standard. The maximum height of the proposal is 13.2m above existing ground level, which is a 3.2m exceedance of the 9.5m height of buildings development standard for the site. According to the written request, the maximum height of the proposal has not been reduced in the amended proposal; however, the volume of the building envelope that exceeds the height of buildings development standard has been significantly reduced in the amended plans by removing the north-western wing on the First Floor Level. The applicant’s written request justifies the contravention of the development standard on the following bases:

• The majority of the breach of the development standard can be considered a technical non-compliance due to previous excavation on the site to accommodate the existing swimming pool. If the natural ground line is instead used to measure the height of the proposal, the non-compliance with the development standard varies between 0.3m and 1m. The majority of the non-compliance, using the natural ground line, is less than 0.5m over the development standard of 9.5m, which is relatively minor. A height measurement from the natural ground line reflects the perceived height of the building and is consistent with the Court’s decision in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 [37], [39]-[41].

• The proposal is a three storey built form which is compatible with the building heights of the neighbouring developments.

• The removal of the upper portion of the building envelope from the rear, north-western corner of the uppermost in the amended proposal has reduced the proportion of the building envelope which is above the height of buildings development standard.

• The proposal is compatible with surrounding development and has been designed to maintain the amenity of neighbouring dwellings. The proposal presents as a two storey development when viewed from Stephen Street and it forms an appropriate transition between the street front façades of its immediate neighbours, 9 and 13 Stephen Street. The building envelope of the proposal has been designed to minimise the loss of solar access to the adjoining dwelling to the south.

• The floor level is 300mm above the flood level in order to minimise potential flood risks.

• The objectives of the height of buildings development standard are achieved notwithstanding the numerical non-compliance with the development standard.

13. I am satisfied that the written request has adequately addressed that compliance with the height of buildings development standard for the site of 9.5m in WLEP 2014 is unnecessary or unreasonable in the circumstances of this proposal for the reasons provided by the applicant in the written request.

Clause 4.6(4)

14. 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 at [13]). The consent authority must form two positive opinions of satisfactions 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 at [14]).

15. The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

16. 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 at [27]). I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives for the following reasons:

• The proposal is consistent with the desired future character of the neighbourhood, because the street façade provides an appropriately scaled two storey elevation that transitions between the existing heights of the neighbouring development and is compatible with the heights of buildings within the street elevations of Stephen Street.

• The amended proposal includes the removal of part of the uppermost level of the rear wing which, coupled with the position of the rear wing on the northern portion of the allotment, results in a proposal which minimises the loss of solar access to existing buildings.

• The amended proposal minimises amenity impacts on adjoining or nearby properties.

17. 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 at [29]).

Effect of the proposal on the heritage significance of the Paddington HCA

18. I have considered, pursuant to cl 5.10(4) of WLEP 2014, the effect of the proposal on the heritage significance of the Paddington HCA and I am satisfied that the proposal will have an acceptable impact on the heritage significance of the Paddington HCA, because it is a contemporary work of architecture that respects and appropriately responds to the established character of Stephen Street and the Paddington HCA.

Conclusion

19. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

20. The orders of the Court are:

1. The applicant is granted leave to amend the development application by relying on the documentation listed in condition A.2 of the conditions of consent at Annexure A and the amended clause 4.6 written request.

2. The applicant’s written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP 2014) justifying the breach of the height of buildings development standard set out in clause 4.3 of the WLEP 2014, prepared by GSA Planning and dated December 2018, has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the WLEP 2014. Consequently, the applicant’s written request is well founded and is upheld.

3. The appeal is upheld.

4. Development Application No. 283/2017 for the construction of a new three storey residential dwelling including a car stacker for two vehicles and a swimming pool, at 11 Stephen Street, Paddington, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (645 KB, pdf)

Annexure B (5.81 MB, pdf)

Plans (13.4 MB, pdf)

**********

Decision last updated: 14 February 2019