Hyside 15 Chapman Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1155

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hyside 15 Chapman Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1155

Hearing dates:

Conciliation conference on 15 February 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 2021/0192 for the construction of a residential flat building containing 55 apartments, basement carparking, associated site preparation, excavation, landscaping and other related works, at 11-21 Chapman Street, Strathfield, is approved, subject to the conditions of consent at Annexure A.

(3) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Catchwords:

DEVELOPMENT APPLICATION — construction of a residential flat building over basement parking — conciliation conference — agreement between the parties — orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, cl 3, Sch 6

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 28

Cases Cited:

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

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

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

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

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Hyside 15 Chapman Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/286326

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. 2021/0192 for the construction of a five-storey residential flat building containing 55 apartments over two levels of basement parking (the proposal), at 11-21 Chapman Street, Strathfield (the site) by City of Canada Bay Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 February 2022. 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 would be acceptable to the parties.

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.

4. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl 4.6(2) of the Canada Bay Local Environmental Plan 2013 (LEP 2013).

The site

5. The site is legally identified as Lots 9, 10, 11, 12 and 14 in DP 2409 and Lot 13 in DP 589132.

6. The site has an area of 2,413m².

Planning framework

7. The Environmental Planning and Assessment Regulation 2000 continues to apply to the development application because the application was lodged with the Council on 6 August 2021, the Class 1 application was filed with the Court on 8 October 2021 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

8. The provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) apply to the proposal at cl 4(1)(a)(i). In determining a development application for consent to carry out development to which SEPP 65 applies, the consent authority, or the Court exercising the functions of the consent authority, is to take into consideration the Apartment Design Guide (ADG), at cl 28(2)(c).

9. The site is zoned R4 High Density Residential pursuant to LEP 2013. The objectives of the zone, to which regard must be had, are:

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

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

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

10. There is no floor space ratio (FSR) development standard that applies to the site (cl 4.4 and Floor Space Ratio Map Sheet FSR_003 of LEP 2013).

11. The height of buildings development standard for the site is 17m (cl 4.3 and Height of Buildings Map Sheet HOB_003 of LEP 2013). The objectives of the standard, at cl 4.3(1) of LEP 2013, are:

(a) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces,

(b) to protect the amenity of residential accommodation, neighbouring properties and public spaces in terms of—

(i) visual and acoustic privacy, and

(ii) solar access and view sharing,

(c) to establish a transition in scale between medium and high density centres and adjoining lower density and open space zones to protect local amenity,

(d) to ensure that buildings respond to the natural topography of the area.

Contravention of the height of buildings development standard

12. The proposal has a maximum height of 17.42m to the top of the lift overrun of Lift 1 on the western part of the roof. The lift overrun of Lift 2 includes a minor exceedance of the standard on one corner of the lift overrun.

13. The applicant filed an amended written request seeking to justify the contravention of the height of buildings development standard prepared by BBC Consulting Planners and dated March 2022.

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 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.

15. 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 2013 (Initial Action at [29]).

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

16. 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

17. 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]).

18. 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]:

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

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

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

4. the development standard has been abandoned by the council;

5. 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).

19. 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]).

20. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the contravention of the standard is numerically minor; the proposal remains consistent with the overall planning intent for the Strathfield Triangle, that is, a five storey residential flat building on the site; and the small areas of the building envelope that are non-compliant with the standard are not inconsistent with the character of the locality.

21. 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]). 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]). 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]).

22. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as justified because the scale of the building is consistent with the strategic vision for the area and the non-compliance is minor. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by in the text of the provision, and as interpreted by his Honour in Initial Action at [23].

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

23. 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]).

24. I am satisfied that the proposal is consistent with the relevant objectives for the R4 zone and the height of buildings development standard for the reasons set out in the Applicant’s cl 4.6 written request.

Conclusion

25. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 23 March 2022, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

26. The Court notes:

1. That the City of Canada Bay Council, as the relevant consent authority, agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. 2021/0192, to rely on amended architectural plans, civil engineering plans, stormwater plans, landscape plans, traffic engineering plans and other documents listed under Sch B condition 1 of the conditions of consent at Annexure A.

2. A copy of the amended application was lodged on the NSW planning portal on 21 March 2022.

3. The applicant filed the amended development application with the Court on 21 March 2022.

27. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/0192 for the construction of a residential flat building containing 55 apartments, basement carparking, associated site preparation, excavation, landscaping and other related works, at 11-21 Chapman Street, Strathfield, is approved, subject to the conditions of consent at Annexure A.

3. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

____________

Susan O’Neill

Commissioner of the Court

(Annexure A) (516430, pdf)

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Decision last updated: 25 March 2022