Dugandzic v Randwick City Council

[2023] NSWLEC 1319

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dugandzic v Randwick City Council [2023] NSWLEC 1319

Hearing dates:

14-15 December 2022, 15 March 2023

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No 172/2022, for a mixed-use development at 6, 8 and 10 Bowral Street, Kensington, is refused.

(3) The exhibits, other than 1 and 6, are returned.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – exceedance of the height of buildings development standard – design excellence

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 39

Randwick Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, 6.2, 6.8, 6.11, 6.14, 6.17, 6.20

Cases Cited:

Toga Addison Pty Ltd atf Toga Addison Unit Trust v Randwick City Council [2021] NSWLEC 1580

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

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

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

Texts Cited:

Randwick Comprehensive Development Control Plan 2013

Category:

Principal judgment

Parties:

Darijo Dugandzic (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/140932

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 172/2022 for the demolition of existing structures and the construction of a part six, part nine storey mixed use development comprised of a residential flat building and commercial premises, with shared way, basement parking and landscaping (the proposal), at 6-10 Bowral Street, Kensington (the site), by Randwick City Council (the Council).

2. The appeal was subject to conciliation on 2 September 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

Issues

3. The Council’s contentions can be summarised into three fundamental issues, as follows:

• The proposal does not provide a share way/laneway of a kind or nature envisaged by the Randwick Comprehensive Development Control Plan 2013 (DCP 2013) for the Kensington Town Centre.

• The written request to contravene the height of buildings development standard does not satisfy the jurisdictional pre-requisites under cl 4.6(4)(a) of the Randwick Local Environmental Plan 2012 (LEP 2012).

• The proposal fails to exhibit design excellence pursuant to cl 6.11 of LEP 2012 because it does not achieve a high standard of architectural design, materials and detailing appropriate to the building type, as demonstrated by the inadequate floor to ceiling height on the ground level and its failure to achieve an acceptable relationship with development on neighbouring sites.

4. The Council submitted that a degree of flexibility must be applied to the applicable provisions for the Kensington Town Centre in DCP 2013 because the property amalgamations are not consistent with those assumed by the block plan (Blocks 28B and 28C Kensington Town Centre, f 487 Ex 3). Nevertheless, the inconsistency of site amalgamations with the block plans does not justify ignoring the controls or setting aside the urban design outcome the controls are seeking to achieve.

5. The Council submitted that cl 6.14 of LEP 2012 is a prohibition for a residential flat building in a business zone (see Toga Addison Pty Ltd atf Toga Addison Unit Trust v Randwick City Council [2021] NSWLEC 1580 [15]-[55]).

The site and its context

6. The site is on the southern side of Bowral Street, bounded by 4 Bowral Street to the west and 12-16 Bowral Street to the east. The site is bounded by 166 Anzac Parade and 122 Todman Avenue to the south. The site is occupied by three single dwelling houses.

7. The Kensington Public School is to the east of the site, fronting Doncaster Avenue and bounded by Bowral Street to the north and Todman Avenue to the south. Kensington Public School is bounded to the west by 12-16 Bowral Street, which extends to the south to Todman Avenue.

8. The Applicant is the registered proprietor of 6 Bowral Street, and the registered proprietors of 8-10 Bowral Street provided owner’s consent for the application.

The proposal

9. The proposal is for a part 6 storey and part 9 storey development, consisting of the following accommodation:

• Two levels of basement parking accessed via the laneway;

• Laneway along the western side of the site for two levels, lined on the eastern façade with a vertical green wall;

• A 100m² commercial premises fronting Bowral Street on the Ground Floor;

• Residential apartments on Ground Floor, Levels 1-5;

• Communal open space and swimming pool on Level 6;

• Residential apartments on the western portion of the site Levels 6-8.

10. The application is accompanied by an offer to enter into a Voluntary Planning Agreement (VPA) with the Council for payment of a monetary contribution towards community infrastructure items, including Green Grid links along Bowral Street and public domain upgrades to Bowral Street Plaza. The VPA also includes payment of affordable housing contributions. The VPA is agreed between the parties.

Planning framework

11. The site is zoned B2 Local Centre pursuant to Randwick Local Environmental Plan 2012 (LEP 2012). Commercial premises and residential flat buildings are nominate uses permitted with consent in the B2 zone. The objectives of the B2 zone, to which regard must be had, are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To enable residential development that is well-integrated with, and supports the primary business function of, the zone.

• To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community.

• To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones.

• To facilitate a safe public domain.

12. The height of buildings development standard for 6 Bowral Street is 21m and for 8-10 Bowral Street is 19m. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2012, are:

(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,

(b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

13. Pursuant to cl 6.17 of LEP 2012, the Alternative Building Heights Map allows 31m height of buildings development standard for 6 Bowral Street, subject to the terms of the clause.

14. There is no floor space ratio (FSR) development standard for the site. Pursuant to cl 6.17 of LEP 2012, the Alternative Floor Space Ratio Map allows a 4:1 FSR for 6 Bowral Street, subject to the terms of the clause, as follows:

6.17 Community infrastructure height of buildings and floor space at Kensington and Kingsford town centres

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

(a) to allow greater building heights and densities at Kensington and Kingsford town centres where community infrastructure is also provided,

(b) to ensure that those greater building heights and densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

(2) Despite clauses 4.3 and 4.4, the consent authority may consent to development on a site that results in additional building height or additional floor space, or both, in accordance with subclause (4) if the development includes community infrastructure on the site.

(3) In deciding whether to grant development consent, the consent authority must—

(a) be satisfied that the development is consistent with the objectives of this clause, and

(b) be satisfied that the community infrastructure is reasonably necessary at Kensington and Kingsford town centres, and

(c) take into account the nature of the community infrastructure and its value to the Kensington and Kingsford town centres community.

(4) Under subclause (2), a building on land in any of the areas identified on—

(a) the Alternative Building Heights Map—is eligible for an amount of additional building height determined by the consent authority but no more than that which may be achieved by applying the maximum height specified in relation to that area, and

(b) the Alternative Floor Space Ratio Map—is eligible for an amount of additional floor space determined by the consent authority but no more than that which may be achieved by applying the maximum floor space ratio specified in relation to that area.

(5) In this clause—

community infrastructure means development for the purposes of community facilities, recreation areas, recreation facilities (indoor), recreation facilities (outdoor), public roads or drainage.

15. The Kensington Public School is a heritage item. The relevant objectives of heritage conservation at cl 5.10(1) of LEP 2012 are to conserve the environmental heritage of Randwick and to conserve the heritage significance of heritage items, including associated fabric, setting and views.

16. Development consent is required for earthworks and the consent authority, or the Court exercising the functions of the consent authority, must consider the following matters at cl 6.2(3) of LEP 2012 before granting consent to an application:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

17. Clause 6.8, Airspace operations, of LEP 2012 is engaged by the proposal because the development will penetrate the Limitations or Operations Surface. Sydney Airport has granted an approval for a controlled activity for the proposal to a height of 55.75m AHD (Ex 3, tab 11).

18. The design excellence clause applies to the proposal at cl 6.11(2) of LEP 2012. Clause 6.11 is in the following terms:

6.11 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural and urban design.

(2) This clause applies to development involving the construction of a new building or external alterations to an existing building—

(a) on a site that has an area of 10,000 square metres or greater, or

(b) on land for which a development control plan is required to be prepared under clause 6.12, or

(c) that is, or will be, at least 15 metres in height.

(3) Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence.

(4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites,

(d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency,

(e) whether the proposed development detrimentally impacts on view corridors and landmarks.

19. Clause 6.14 of LEP 2012 is in the following terms:

6.14 Certain residential accommodation in business zones

(1) The objective of this clause is to enable the use of an existing dwelling house or residential flat building in certain business zones.

(2) This clause applies to land in Zone B1 Neighbourhood Centre or Zone B2 Local Centre.

(3) Development consent must not be granted to a dwelling house or a residential flat building on land to which this clause applies unless—

(a) the development relates to a building that existed when this Plan commenced and was designed or constructed for the purposes of a dwelling house or a residential flat building, and

(b) the consent authority is satisfied that—

(i) the development will not detrimentally impact on the desired future character of the locality, and

(ii) the development will result in satisfactory residential amenity for its residents, and

(iii) the degree of modification to the footprint and facade of the building is minor.

20. The active street frontages clause at cl 6.20 of LEP 2012 applies to the proposal as a small part of the frontage of 6 Bowral Street is identified as an active street frontage (Active Street Frontages Map Sheet ASF_001 of LEP 2012).

21. The Kensington and Kingsford Town Centres Part E6 of DCP 2013 applies to the site at Part A section 1.2 (f 443 of Ex 3).

Public submissions

22. One objector gave evidence onsite at the commencement of the hearing on behalf of the owner of 12-16 Bowral Street, Kensington, Gayval Investments Pty Ltd. The objector is concerned that the height non-compliances will create additional overshadowing of Gayval’s site and other neighbouring properties beyond what would be caused by a compliant scheme. The additional building bulk containing apartments and residential common outdoor space would lead to additional overlooking, noise, and loss of privacy to Gayval’s site and other neighbouring properties.

Expert evidence

23. The Applicant relied on the expert evidence of Jeff Mead (planning), Rohan Dickson (urban design), Anthony Kilias (heritage) and Ross Shepherd (landscaping).

24. The Council relied on the expert evidence of Tegan Ward (planning), Gabrielle Morrish (urban design), Paul O’Donnell (heritage) and David Meredith (landscaping).

Laneway/Shared Way Zone

25. The parties agreed that the provision for laneway/shared way zones under Part A of the Kensington and Kingsford Town Centres Part E6 of DCP 2013 (f 453 Ex 3) applies to the proposal. A fundamental dispute between the parties is whether the proposal achieves a laneway as envisaged by the provision. The provision is in the following terms:

“8. Laneway/Shared Way Zones

8.1. Explanation:

Laneways and shared zones contribute to the fine grain character of urban areas and help to enhance walkability and connectivity. They also provide an important service function for waste management as well car parking access to developments. The establishment of laneways/shared zones is important for both Kensington and Kingsford town centres to achieve an appropriate scale transition and separation from surrounding lower scaled neighbourhoods. Laneways and shared zones can improve the permeability of both Kensington and Kingsford town centres, encouraging walking, enhancing social gathering and activities such as outdoor dining, play and art and culture appreciation.

Objectives:

• To establish a network of laneways that encourage pedestrian movements and social gathering spaces

• To provide leafy, green and useable laneways

• To facilitate vehicular access and servicing to properties fronting Anzac Parade and Gardeners Road.

Controls

a) Laneways and shared zones are to be provided in accordance with the relevant block diagram (see Part B)

b) Laneways are to be a minimum of 6 metres wide (for larger developments, a carriageway width greater than 6 metres may be required) and shall provide landscaping, lighting and high quality materials and finishes and opportunities for art to enhance the pedestrian environment

c) Buildings that front lanes shall be articulated to create visual interest and shall incorporate passive surveillance by orienting windows and balconies onto the lane

d) Ground floor uses fronting lanes shall incorporate openings onto the lane so as to contribute to the enjoyment and activation of the lane including outdoor dining

e) Applicants are to negotiate Rights of carriageway with adjoining property owners where required for access.

Note 1: Evidence of the attempt to obtain the adjoining property owner’s agreement to the Right of Carriageway is to be submitted as part of the Development Application

Note 2. Refer to the Roads and Maritime Services Technical Direction ‘Design and Implementation of Shared Zones Including Provision for Parking’ in the planning and design of shared way zones.”

26. The relevant block diagram in Part B of the Kensington and Kingsford Town Centres Part E6 of DCP 2013 is the diagram for Blocks 28B and 28C (block plan), and the built form diagram, as follows:

“Block 28B is located at the corner of Bowral Street and Anzac Parade south of the proposed Bowral Street Plaza and immediately west of Block 28C. Existing development within Block 28B includes 2 storey commercial development along Anzac Parade.

The south- western corner of the block at the corner of Todman Ave and Anzac Parade is the K2 site which forms part of the Todman Square Precinct (see Todman Square Precinct block controls which is subject to a design competition).

Block 28B provides the opportunity for two distinct built forms that address Bowral Street and Anzac Parade. Future built form is to interrelate and enhance the proposed Bowral Street Plaza through strong visual and physical connections, generous setbacks and active frontages. Future plaza design will resolve competing demands of outdoor dining and pedestrian movements in this location. A 2.5m building setback is to be provided along Anzac parade and 1.5m setback is to be provided off Bowral Street.

The built form will remain cohesive with the rest of the town centre, with a strong visual relationship established in form and facade to the taller tower at the K2 site. A mid-block link will increase site permeability and provide pedestrian connections from Anzac Parade and Bowral Street Plaza. The link is to be suitably landscaped with mature trees and footpath verges incorporating water sensitive urban design.

An upper floor setback above the podium will help reduce visual bulk while enabling solar access to the pedestrian link. A flexible zone is included on the southern and eastern sides to enable the built form to be suitably distributed across the site whilst ensuring compliance with ADG separation and amenity to the adjoining developments. Vehicular access is to be provided from Bowral Street and Todman Avenue.

Block 28C lies to the east of Block 28B, with its eastern edge abutting the Kensington Public School. The block presently contains a row of single dwelling houses and semis, the majority from the late Victorian period.

Redevelopment of this block will achieve two building envelopes that are scaled down to transition between the higher building forms on Block 28B and the Kensington Public School. Building separation and setbacks are to be embedded into the overall block design to facilitate solar access and manage privacy. A minimum 9m side setback is to be provided between the built form fronting Bowral Street and the Kensington Public School to minimise potential overshadowing and overlooking into the school grounds. Tree planting and landscaping along the eastern boundary adjoining the Kensington Public School will further enhance privacy to the School playground spaces.

A shared way will be established on the eastern edge of the block to connect Todman Avenue and Bowral Street at the north, while also providing for vehicle access. Active frontages along Bowral Street and Todman Avenue are required to facilitate engagement between ground floor businesses and street life.”

27. The relationship of the site to the block plan is shown below, where the site’s boundaries are shown as the dotted red line (p 28 Ex 6):

28. The proposal shifts the laneway to the east, adjacent to the western boundary, and the laneway is covered over from Levels 3-8 (Dwg DA302, tab 2 Ex D).

29. Having considered the planning and urban design experts’ evidence and the Applicant’s submissions in relation to the proposed laneway, I prefer and adopt Ms Morrish’s evidence, summarised as follows:

• Block 28C is the eastern part of the block and it is intended to achieve two building envelopes that scale down to transition from Block B to the school. The laneway in the block plan is positioned to provide the physical break between these two blocks and two massing characters.

• From the descriptions (under section 7 and 8 of Part A of the Kensington and Kingsford Town Centres Part E6 of DCP 2013) it is clear that laneways are intended to be open to the sky whereas pedestrian links can pass underneath built form. They have two different characters and roles.

• The proposal does not comply with the block plan in relation to the laneway. An open-air laneway could have been provided, despite the site’s variation to the consolidations assumed by the block plan.

• The position of the laneway adjacent to the western boundary creates the following issues:

• The location of the laneway no longer coincides with the change in building height under LEP 2012 and so the proposed laneway cannot provide the defined break between the two building forms of different heights.

• The proposed laneway is located entirely on 6 Bowral Street, instead of straddling 6 and 8 Bowral Street where the height of buildings development standard changes from 31m to 19m, so that there is an incentive to cover the laneway so as to not lose the development potential of the void above the laneway with the higher development standard.

• The new location of the proposed laneway changes the position of the laneway’s connection to other sites to the south and the plaza to the north. Under DCP 2013, the plaza was to extend through to the western edge of the new laneway, and shifting the laneway to the west reduces the available length for the plaza and brings the vehicle link further into the area intended as a plaza

• The proposed laneway is a tunnel. The covering of the laneway for a length of approximately 25.5m provides a totally different character and ambience than what is intended by the objectives and controls for the Kensington Town Centre under DCP 2013 and does not provide the same amenity in terms of light, air, sunlight, landscaping, view lines through the block and appreciation of sky exposure gained from an open laneway. It compromises those outcomes for the full depth of the built form in to maximise gross floor area.

• The proposed laneway is a compromised solution in comparison to an open laneway.

• There is little activation along the laneway.

30. The proposed laneway achieves the service function for waste management and car parking access for developments, as required under DCP 2013, but it fails to achieve the important urban design function articulated for Block 28 in the block plan and the objectives for laneways in the Kensington Town Centre under DCP 2013.

31. The provision for laneway/shared way at section 8.1 of Part A of the Kensington and Kingsford Town Centres Part E6 in DCP 2013, read as a whole, seeks “usable laneways” that, in addition to providing access and servicing adjoining development, “enhance walkability and connectivity”; “achieve an appropriate scale transition and separation from surrounding lower scaled neighbourhoods” and; “incorporate passive surveillance by orientating windows and balconies onto the lane”. The proposed laneway is a tunnel that reads as a vehicular entry to the building, not a laneway that provides pedestrian permeability through the block (see Dwg DA400, tab 2 Ex D). The proposed laneway fails to articulate or relate to the three-dimensional building envelopes, instead the laneway is merely an opening in the building façade with no relationship at all to the change of height in built form dictated by the applicable height of buildings development standard. In this way, the proposed laneway fails to contribute to the fine grain character of the precinct, nor does it enhance walkability or connectivity, because as the destination is opaque to a pedestrian, it is uninviting.

32. I accept the Applicant’s submission that it is appropriate to provide considerable flexibility when assessing any proposal for this site against the block plan and the objectives and controls for development within the Kensington Town Centre under DCP 2013. The consents already granted for development on Block 28 create unanticipated constraints and require a masterplanning exercise for each site in order to adapt the principles in the block plan to the reality of the emerging figure-ground and built form relationships within the block for any new proposal. Nevertheless, the proposal fails to achieve the design principles articulated in DCP 2013 for the block in relation to the provision of a laneway/shared way running north-south on the site.

33. The proposal fails to achieve a number of aspects of the desired future character statement under Part B of the Kensington and Kingsford Town Centres Part E6 of DCP 2013 for blocks 28B and 28C, particularly in relation to enhancing the proposed Bowral Street Plaza. I am not satisfied that the proposal results in an improved urban design outcome, nor does it meet the identified desired future character for blocks 28B and 28C, pursuant to 10.1 under Part B of the Kensington and Kingsford Town Centres Part E6 of DCP 2013.

34. Clause 6.11 of LEP 2012 applies to the proposal at cl 6.11(2). I am not satisfied that the proposal meets the objective of the clause to deliver the highest standard of architectural and urban design, because the location and form of the proposed laneway will not improve the quality and amenity of the public domain, for the reasons set out above.

Contravention of the height of buildings development standard

35. The height of buildings development standard for 6 Bowral Street is 31m (pursuant to cl 6.17 of LEP 2012) and for 8-10 Bowral Street is 19m (pursuant to cl 4.3 of LEP 2012). The proposal has a maximum height of 28.73m to the lift overrun over 8 Bowral Street, where the 19m height of buildings development standard applies.

36. The Applicant provided a written request seeking to justify the contravention of the height of buildings development standard (tab 8 Ex D).

37. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority, or the Court exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the Applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

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

(a) the consent authority is satisfied that:

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

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

(b) the concurrence of the Secretary has been obtained.

38. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

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

39. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the Applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

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

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

40. The Applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the Applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the Applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

41. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

42. 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]).

43. The proposal extends the 9 storey massing eastwards into the portion of the site with a 19m height of buildings development standard. The Applicant’s written request notes that the volume of the building envelope that causes the exceedance of the development standard is a narrow portion of the upper three levels. The written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary for the following reasons:

• The development is consistent with the standard and zone objectives, even with the proposed variation.

• There are no additional significant adverse impacts arising from the proposed non-compliance.

• Important planning goals are achieved by the approval of the variation.

Environmental planning grounds relied on by the Applicant

44. The grounds relied on by the Applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]).

45. The Applicant’s written request cites the following (summarised) environmental planning grounds as justification for the exceedance of the height of buildings development standard:

1. Inability to amalgamate allotments and dual building height standard has resulted in the proposed variation.

2. The non-compliance and redistribution of height is a response to the DCP 2013 building envelope controls.

3. Redistribution of height to provide for a shared laneway.

4. The non-compliance is entirely consistent with the character of the locality.

5. The non-compliances achieve a high level of design excellence, based on site analysis.

6. Orderly and economic use of land.

7. Limited environmental impacts.

8. The proposed meets aims and objectives of key planning documents.

46. The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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]).

47. Generally, the environmental planning grounds cited by the Applicant’s written request promote the benefits of carrying out the development as a whole. I make the following observations regarding the Applicant’s environmental planning grounds:

• The inability to amalgamate allotments is not, in of itself, a justification for an exceedance of the height of buildings development standard and does not specifically focus on the aspect of the development that contravenes the standard. The inability to amalgamate allotments is a justification for a revised masterplan for the site, including the possibility of relocating of the laneway in such a way that it works with the overall pedestrian and traffic flow for the block, and achieves the desired outcomes for the laneway in DCP 2013.

• The dual height standards across the site does not, in of itself, justify the exceedance of the lower height standard. Neither the inability to amalgamate allotments consistent with DCP 2013, nor the dual height standards, necessarily dictate an exceedance of the height standard on part of the site.

• The non-compliance and redistribution of height as a response to DCP 2013 building envelope controls is not demonstrated by a comparative analysis of the redistribution of the building envelope.

• The justifications that the non-compliance is entirely consistent with the character of the locality and achieve a high level of design excellence, based on site analysis, does not focus on the aspect of the development that contravenes the development standard.

• The promotion of the orderly and economic use of land is an objective of the EPA Act and not an environment planning ground justifying the exceedance of the height of buildings development standard. It promotes the benefits of the development, without focusing on the aspect of the development that contravenes the development standard.

• Similarly, the limited environmental impacts justification is relevant, but does not in of itself justify the exceedance of the development standard.

• Achieving the aims and objectives of key planning documents does not focus on the aspect of the development that contravenes the development standard.

48. The Applicant’s written request justifies the exceedance as “a result of the dual building height standards (being the interface between the alternative and standard building height), lot shape, amalgamation pattern and envelope as desired by the DCP 2013”. I do not accept the Applicant’s justification for the exceedance of the height of buildings development standard. I do accept that the lot ownership and amalgamation patterns differ from those envisaged by DCP 2013, and this requires a revised masterplan for the site referencing the approvals granted on adjoining properties.

49. There is, in my view, no justification put forward by the Applicant in the written request for both the filling in of the area over the laneway and extending the nine storeys eastward into the lower height of buildings development standard and further towards the low scaled heritage listed primary school. I am not satisfied that the environmental planning grounds nominated by the Applicant’s written request necessarily focus on the volume of the building envelope that exceeds the lower height of buildings development standard. For this reason, the exceedance of the height of buildings development standard is not sufficiently justified by the written request.

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

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

51. I adopt Ms Morrish’s evidence that the proposal ignores many of the key outcomes intended for the precinct, including retail/commercial floor to ceiling heights on the ground floor for a portion of the street façade of the proposal located on 6 Bowral Street and subject to the active street frontages clause at cl 6.20 of LEP 2012. Greater floor to ceiling heights for active frontages is not simply about accommodating services for retail and commercial uses, the grander proportions of ground floors for active frontages is an important urban cue, combined with a nil street frontage (and most often nil side setbacks), that we read intuitively to mean a public/retail or commercial use, and not a residential/private use.

52. The massing of the street wall is uncomfortable, as there is no relationship between the two-storey entry to the laneway and the change in level of the building envelope. I adopt Ms Morrish’s evidence (par 1.29 of Ex 6) regarding the missed opportunity of aligning the break in the built form for the laneway with the change in height of the built form. The position of the laneway opening, moved to the western extent of the site and further west than proposed by DCP 2013, and the shifting of the gross floor area to extend the higher portion of the built form to the east to exceed the height of buildings development standard of 19m, are together, unrelated and contrary to the desired future character for the precinct, because the laneway no longer provides the defined break in building form at the change in height; so it does not serve one of the purposes of the laneway in DCP 2013 to assist with the transition from the higher building form to the lower building form (par 1.17 of Ex 6).

50. I am not satisfied that the proposal is consistent with the objectives of the height of buildings development standard. The proposal is not compatible with the desired future character of the locality, because it ignores many of the key outcomes intended for the precinct.

Conclusion

54. The proposal does not provide a share way/laneway of a kind or nature envisaged by DCP 2013 for the Kensington Town Centre.

55. The proposal fails to exhibit design excellence pursuant to cl 6.11 of LEP 2012. As the design excellence clause at cl 6.11 of LEP 2012 is a jurisdictional pre-requisite to the grant of consent at subcl (3), this issue is determinative of the appeal.

56. The contravention of the height of buildings development standard pursuant to cl 4.3 of LEP 2012 is not justified by the Applicant’s written request to do so. I am not satisfied that the proposal will be in the public interest, because it is inconsistent with the objective of the height of buildings development standard at cl 4.3(1)(a), pursuant to cl 4.6(4)(a)(ii) of LEP 2012.

Orders

57. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 172/2022, for a mixed-use development at 6, 8 and 10 Bowral Street, Kensington, is refused.

3. The exhibits, other than Exhibits 1 and 6, are returned.

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 21 June 2023