Keystone Property Consultants v North Sydney Council

[2025] NSWLEC 1396

Land and Environment Court

New South Wales

Medium Neutral Citation:

Keystone Property Consultants v North Sydney Council [2025] NSWLEC 1396

Hearing dates:

3 - 4 April 2025

Date of orders:

30 May 2025

Decision date:

30 May 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for the development application DA279/22 for alterations and additions to an existing building to create a mixed use development of 2 levels and a mezzanine of commercial and retail premises, and 4 residential units on the upper 2 levels and associated works at 126-128 Willoughby Road, Crows Nest is refused.

(3) The Exhibits are returned, except for exhibits A and 1.

Catchwords:

APPEAL – development application – two-storey residential addition above an existing building commercial building – contravention of development standard for height of building – clause 4.6 variation

Legislation Cited:

North Sydney Local Environmental Plan 2013, cll 4.3, 4.6

State Environmental Planning Policy (Housing) 2021, Ch 4

Cases Cited:

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161

Mackenzie Architects international Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044

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

Texts Cited:

North Sydney Development Control Plan 2013

St Leonards and Crows Nest 2036

Category:

Principal judgment

Parties:

Keystone Property Consultants (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor)(Respondent)
Solicitors:
Jaku Legal (Applicant)
Marsden (Respondent)

File Number(s):

2024/173621

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings arise following an appeal against North Sydney Council’s (Council) refusal of development application DA279/22 for the construction of a two-storey residential addition above an existing building used for commercial purposes (development application) at 126-128 Willoughby Road, Crows Nest (Lot 21 in DP 315327) (site).

The proposal

2. The development application, as amended, comprises four apartments in the following configuration:

1. 1 x 1-bedroom apartment with associated balcony space; and

2. 3 x 2-bedroom apartment with associated balcony space.

3. The application also includes the following services:

1. Fire isolated stairway;

2. Lift;

3. Garbage and recycling chute; and

4. Residential bulky item storeroom.

4. Following construction, the development application will result in the creation of a four-storey mixed use development offering:

1. Ground level with 6 commercial car spaces (in a stacked parking arrangement), and retail premises with a mezzanine office.

2. Level 1 containing office floor space.

3. Level 2 including lower levels of 4 x residential apartments.

4. Level 3 including upper levels of 3 x residential apartments.

Contentions

5. The amended statement of facts and conditions filed by the Council on 11 December 2024 (ASOFAC), identifies several issues with the amended proposal. The principal contested issue is the acceptability of the height of the development which is in breach of the 10 m maximum height control in cl 4.3 of North Sydney Local Environmental Plan 2013 (the LEP) and its consequent impact on the existing and desired character of the Willoughby Road precinct.

6. As stated, the Council’s position is that the development application does not overcome the jurisdictional hurdle under cl 4.6 of the LEP. The Council argues that the applicant’s now – amended cl 4.6 written request, for exception to the height standard has failed to demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case. The Council maintains that the request fails to advance sufficient environmental planning grounds in this case to justify contravention of the standard. Approval of the proposal as advanced, it also argues, is inconsistent with the objectives of the MU1 Mixed Use zone expressed in the LEP; and, therefore, is not in the public interest.

Decision

7. For the reasons articulated by the Council’s planner, Mr Jeremy Swan, such as will be identified later in this judgment, I cannot uphold the applicant’s cl 4.6 written request. I have therefore determined to refuse consent to the development application.

The site and its environs

8. The site is located on the western side of Willoughby Road – approximately 31 m from the intersection of Albany Street and Willoughby Road; and contains a two-storey, commercial building with a ground floor retail space fronting that road.

9. The site is generally rectangular in shape and has an area of 304 m². The topography slopes from the Willoughby Street frontage to the rear laneway with a fall of some 1.4 m; and there is a cross fall of approximately 450 mm. The upper level of the proposal is now set back from the parapet to reduce the development’s visual impact when viewed from Willoughby Road and the intersection with Albany Street.

10. The site is zoned MU1 Mixed Use under the LEP and is located south west of the “Holtermann Estate A”, a heritage conservation area. A series of other heritage items are near the site. It is also located within the Crows Nest Town Centre as defined in the St Leonards/Crows Nest Planning Area statement of the North Sydney Development Control Plan 2013 (the DCP), where surrounding development primarily consists of two to three-storey, mixed-use development including commercial and residential uses. 

11. While the architectural built form along Willoughby Road varies significantly, it is primarily influenced by the descending topography from the Pacific Highway to the north and northeast. Directly to the north of the site, at 130 Willoughby Road, there is a three-storey, mixed-use building with a ground floor restaurant and residential units above and basement parking accessible from Hume Lane.

12. On the eastern side of Willoughby Road, opposite the site, there are a series of two-storey, commercial/shopfront buildings characterised by step down articulated parapets towards the north. Adjacent to the rear of the site, is 31 Albany Street, consisting of an eight-story, mixed-use development comprising retail and residential premises. To the northeast of the site is 101 Willoughby Road, comprising part of a six-storey, mixed-use development which incorporates a supermarket, childcare centre, a public plaza, residential apartments and four levels of basement parking.

Statutory framework

13. The ASOFAC sets out the relevant statutory framework.

14. Accepting that the development is a nominated permissible use in the MU1 Mixed Use zone, the following objectives are relevant considerations, and in the context of this case are said, by the applicant, to be satisfied by the development for the purposes of the tests under cl 4.6 of the LEP. The objectives are:

1   Objectives of zone

•  To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To create interesting and vibrant mixed-use centres with safe, high quality urban environments with residential amenity.

•  To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.

4.3   Height of buildings

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

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

(g)  to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living.

4.6   Exceptions to development standards

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

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

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

15. The provisions of the Apartment Design Guide (the ADG), now within Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), apply to the development application and have precedence, to the extent of any inconsistency with other planning instruments. However, in this case the ADG provisions are not inconsistent with and therefore do not override the character area statement for the St Leonards/Crows Nest area in the DCP that applies to the site.

16. As the Council explained in opening, in terms of function, the character area statement operates under a heading with a number of bullet points. Relevantly, it endorses the maintenance and enhancement of “the village atmosphere of Crows Nest … with Willoughby Road continuing to be an active high street” (fourth bullet point). It also identifies under the heading, "Quality Built Form" in the third bullet point that, "buildings are scaled down from the railway and metro stations towards surrounding areas, to fit in with lower scale development and reducing adverse affects on lower scale areas." Then, still under that "Quality Built Form" heading, the second last bullet point references, "The visual characteristics...predominating that area", including the Holtermann Estate Heritage Conservation Area to the northeast and east of the site.

17. Paragraph 3.2 of the DCP headed, “Crows Nest Town Centre”, specifically deals with that part of Crows Nest which includes the site. The significant elements of Land Use are identified at Control P1 of the DCP as “predominantly retail and mixed commercial and residential development”. In terms of Topography, Control P7 identifies “[s]light falls to the east and northeast from the Pacific Highway which generally follows the ridgeline”. And, in terms of Desired Future Character, at 3.2.2, Control P2 identifies, “[m]aintaining a low scale built form to Willoughby Road, between Falcon Street and Albany Street, with two storey parapet shopfronts with shops at ground level, nonresidential or residential above, with additional height set back above a 2 storey parapet two storey parapet.” And, then Control P3 states, “[p]redominantly medium rise mixed use development, built boundary to boundary, with setbacks to laneways, and above the podium, with shops at ground level, nonresidential/residential on first floor and residential above.”

18. Under the heading “Desired Built Form”, and the subheading and commentary on “Form Massing and the Scale” in the DCP, objective O1 seeks “[t]o ensure that density and scale is concentrated close to the metro station and along the Pacific Highway.” Then, at Control P1 it states, “[b]uildings should generally transition in height from the Crows Nest Metro Station and Pacific Highway down to the surrounding areas and the lower scale development within the Crows Nest Town Centre, the Upper Slopes Neighbourhood and Crows Nest Neighbourhood.” Finally, Control P4 provides, “[c]onsistent parapet facade heights are provided along Willoughby Road and the Pacific Highway.”

19. That said, the applicant identified the expert evidence advanced by Mr Swan in the joint expert report, in respect of the character issue, was restricted to the perception of the fourth level of the proposed building additions from Willoughby Road, that being the central focus of the Council’s case.

20. The objective at subcl (f) of the height standard in cl 4.3 of the LEP is “to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area”. With the character of the area in mind as summarised, and as observed at the site view at the commencement of the hearing, it is appropriate to address the applicant’s cl 4.6 written request.

The applicant’s clause 4.6 written request to vary clause 4.3

21. The ‘maximum building height’ of the proposed development is 15.2 m which equates to a 52% non-compliance with the 10 m development standard in cl 4.3 of the LEP.

22. The extent of the building height breach is depicted on the section plan extracted below.

Figure 1: Section Plan

23. To overcome the height breach the applicant relies on a cl 4.6 written request dated 7 November 2024 prepared by Boston Blyth Fleming, as updated on 26 March 2025, to demonstrate that:

“(i) compliance with the development standard in clause 4.3 of RLEP 2012 is unreasonable or unnecessary in the circumstances, and

(ii) there are sufficient environmental planning grounds to justify the contravention of that development standard.

(iii) The proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within Zone MU1 Mixed Use.”

24. In this case the cl 4.6 written request seeks to demonstrate that the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

25. In addressing the objectives of the standard in cl 4.3, the planning experts gave different interpretations of the objective at subcl (a) “to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient”.

26. While acknowledging that factually the land falls from east to west, and that the building steps up on the highest point of the land rather than stepping down, Mr Greg Boston, the applicant’s expert planner, said (consistent with the cl 4.6 written request at pp 10 and 11) that the proposed design does not defeat the objective at subcl (a) because:

“…the application does not propose any changes to the existing ground level retail, parking and upper-level office accommodation ….the application does not alter the way that the overall development conforms to and reflects the natural landform however I do note that the established building form does step down towards Hume Lane in response to topography and to follow the natural gradient of the land.

In this context, the building height breaching elements do not compromise the existing buildings performance when assessed against this objective and accordingly this objective is achieved.”

27. This interpretation of the objective at subcl (a) in the cl 4.6 written request is different to Mr Swan’s interpretation of that subcl. The competing interpretations can be understood from Mr Swan’s oral evidence below, in response to Mr Boston’s articulation of the cl 4.6 written request that by not disrupting the foundations of the existing building and ground levels the development achieves the objective (T 3/04 p 53 LL31 – 50: p 54 LL 1 – 50; p 55 LL 1 - 6):

“SETON: Mr Swan, can you just give your - firstly, do you agree with that, and secondly, if not, why not?

WITNESS SWAN: So firstly, I don't agree with that at all. Nowhere is it talking about excavation or using any of those words. It's simply looking at the topography of the site. So which way it slopes and which way it falls, and where is the best place to put the development to promote the development on the site, to reflect that land form. So, in other words, if you've got a sloping site or a site that slopes in form, you're not going to put the highest point at where it's at its highest point. It steps with the land form. That's what it's about and alterations and additions, 100% this objective, in my view, is applicable and it's applicable on the basis that where you place built form has to be stepped, having regard to the natural land form and the gradients.

SETON: Are you saying it does not matter whether you're changing the ground level or not—

WITNESS SWAN: Correct.

SETON: --objective has some work to do?

WITNESS SWAN: Correct.”

28. In response to Mr Swan’s evidence the applicant submitted that, “If the lateral land form requires a step down, between Willoughby Road and Hume Street, from east to west, that's what the existing building does.” (T 3/04/25, p 55, LL 40 – 42). By reference to drawing DA 090C the applicant identified that the existing retail on the Willoughby Road side is RL 86.15, and while there is no detailed RL on the drawing for the existing car park at the laneway elevation it is clear that the existing development steps down as Mr Boston has said in the cl 4.6 written request.

29. The applicant further submitted (again referring to the cl 4.6 written request) that the stepping that is observed, and what the control addresses is to minimise the amount of excavation; that is, the building follows the ground level. In this case, the applicant said that the building rises at the back because the concern was expressed, historically, about the viewing points from Willoughby Road; the Council did not have a problem with the third level; but it did have a problem with the fourth level. The two-storey addition has now been further recessed, because of the amendments made at the Willoughby Road frontage. If Mr Boston’s interpretation is accepted, he is saying that the stepping aspect deals with the natural topography “[a]s the application does not propose any changes to the existing ground level, retail, parking and upper level office accommodation that application does not alter the way that the overall development conforms to and reflects the natural landform …” (cl 4.6 written request p 12).

30. The next objective at issue is the objective at subcl (f) of cl 4.3 which seeks “to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area”.

31. The applicant’s cl 4.6 written request identifies the site as being in the Crows Nest Town Centre and within the St Leonards/ Crows Nest Planning Area of the DCP and that The Crows Nest Planning Area Character Statement describes the Crows Nest Town Centre as “small in scale in comparison to St Leonards, with 19th Century, two storey shopfront parapets along Willoughby Road and parts of the Pacific Highway.”

32. The cl 4.6 written request also refers to the St Leonards and Crows Nest 2036 Plan which, it submitted “…identifies the importance of transitioning between development of different forms and densities”. The cl 4.6 written request emphasises that “…. development in the immediate vicinity of the site is not uniform and offers an opportunity to provide a transition towards existing and permissible higher densities to the north, west and east”. The written request further states:

“The scale and character of development on Willoughby Road varies between Falcon and Albany Streets. Its southern end has a uniform and main streetscape character with traditional shop fronts. The character changes as you move northward with the higher density developments on Willoughby Road and Albany Street becoming part of the visual character.

The design similarly responds to existing adjoining development on Willoughby Road. The proposal complements the existing pattern of development by providing a three-storey podium to the street. The parapet of the façade mediates between the height of adjoining properties, being lower than the property to south and higher than that to the north, creating a stepping pattern which is a characteristic feature of the streetscape. This design solution is also consistent with the St Leonards / Crows Nest Planning Area Character Statement within the NSDCP”

33. The applicant submitted that the scale and density of the developments to the north and west of the site, with permitted height ranges from 13 m to 26 m, are relevant to an assessment of the proposal’s achievement of the objective at subcl (f) (cl 4.6 written request at pp 22-25). The written request emphasises that the desired future character of an area is not fixed: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115. And, to the extent that the provisions of the DCP provide commentary regarding the desired future character of any area the submission argues character “…cannot be determined by the applicable development standards for height and FSR alone – as they are frequently generic … [and] do not necessarily account for existing and approved development, site amalgamations”, Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 at [42]-[44] or the opportunity for variation provided by cl 4.6.

34. Nonetheless, in this case the request maintains that the development is of an appropriate scale and density of development that is in accordance with, and promotes the character, of an area as identified in the DCP because it offers: a ground level retail interface; activation of the site at street level and supports the existing street edge at a scale consistent with the character of the area. Furthermore, it is submitted that the three-storey podium will align with the existing neighbouring built forms whisht including a recessive fourth floor storey consistent with that sought by the charter statement (cl 4.6 written request p 22).

35. When giving evidence, Mr Swan expressed the opinion that the proposed development was inconsistent with the character statement in Section 3.2.2.1 of the Crows Nest Town Centre Character Statement. That statement at Control P2 is directed to “[m]aintaining a low scale built form to Willoughby Road, between Falcon Street and Albany Street, with two storey parapet shopfronts with shops at ground level, non-residential or residential above, with additional height set back above a 2 storey parapet.” In his opinion, the proposed five-storey built form (with almost the entire top two storeys sitting above the height limit) does not step-down Willoughby Road to reflect the local ground contour at street level. He is firmly of the opinion that the additional storeys proposed in the present development application will be highly visible from Willoughby Road and thereby change the built form character of this section of Willoughby Road, contrary to the objective at subcl (f) of cl 4.3 of the LEP.

Sufficient planning grounds

36. The cl 4.6 written request offers four planning grounds to justify the building height breach.

37. The first is the topography of the land. The submission is that “…the maintenance of the established built form and the topography of the land contribute to the extent of the building height breach as the site falls away from Willoughby Road towards Hume Lane frontage.” The site topography is an environmental planning ground: Mackenzie Architects international Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044 at [5].

38. The second ground is “contextually compatible and responsive building form and design” (p 32-33). The submission is that :

“The sites unique built form context as identified within this variation request facilitates the design and distribution of an additional partial level of residential accommodation on the site in a manner consistent and compatible with the height of surrounding buildings and buildings generally within the site’s visual catchment.

It is the site’s immediate proximity to the 8 storey shop top housing development located to the west of the site at 31 Albany Street which provides a site specific opportunity to accommodate additional building height on this site in a contextually compatible and visually acceptable manner.

Consistent with the conclusions reached by Senior Commissioner Roseth in the matter of Project Venture Developments v Pittwater Council [2005] NSW LEC 191 I have formed the considered opinion that most observers would not find the height and scale of the development, notwithstanding the building height breaching elements, offensive, jarring or unsympathetic in a streetscape and urban context as depicted in the following photomontage image.

In this regard, it can reasonably be concluded that, notwithstanding the building height breaching elements, the development is capable of existing together in harmony with surrounding and nearby development and development generally within the site’s visual catchment.

In other words, the exceedance of the height standard provides greater consistency with the streetscape and fit with character, such that a contextually compatible and responsive building form and design is achieved. This is an environmental planning ground that is sufficient to justify the non-compliance (Moorgate Mosman Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1188 at [54] and [149]; Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097 at [42]; SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90]).”

39. The third is “Objectives of the Act”:

“Strict compliance would prevent alterations and additions to the existing commercial building proposing additional floor levels above the existing roof slab. That is, it would prevent any mixed-use residential outcome on the site unless the existing commercial building was partially or completely demolished.

The proposal seeks the adaptive reuse of the existing commercial building in the form of shop top housing whilst maintaining the existing quantum/ multiple levels of commercial floorspace on the site. In my experience, such outcome is unusual with the predominant form of redevelopment within mixed-use zones being the demolition of commercial buildings and the replacement with shop top housing incorporating a single level of ground floor commercial floorspace above which residential apartments are constructed. This reflects the increased value/ profit associated with residential accommodation compared to commercial floorspace.

Approval of the building height breaching elements achieves the zone objective to maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels by encouraging the maintenance of the existing commercial floor space within a mixed-use shop top housing development on a site ideally suited to residential accommodation given its proximity to the Crows Nest Town Centre and public transport including Crows Nest Metro Station.

In circumstances where there is an acknowledged housing crisis and a general absence of unacceptable environmental consequences approval of the building height variation would facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment whilst promoting the orderly and economic use and development of the land (objectives 1.3(b) and (c) of the Act).

Approval of the building height variation will also promote good contextually compatible and responsive building design of appropriate amenity consistent with objective 1.3(g) of the Act. Grounds that relate to the subject matter, scope and purpose of the Act, including the objects in section 1.3 of the Act and the absence of unacceptable environmental consequences/impacts resulting from a noncompliance with a development standard are environmental planning grounds that are sufficient to justify the non-compliance (Initial Action at [23] and Moorgate Mosman Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1188 at [54]).”

40. The fourth is “Consistency with the objectives of clause 4.6 NSLEP 2013”:

“Providing an appropriate degree of flexibility in applying the height of buildings development standard to this particular development will achieve better outcomes for and from the proposed development given the site specific and immediate built form contextual circumstances of this application. Such an outcome is consistent with objectives 4.6(1)(a) and (b) of the NSLEP.

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

4.4 Clause 4.6(a)(ii) – Is the proposed development in the public interest because it is consistent with the objectives of clause 4.3 and the objectives of the MU1 Mixed Use zone

The consent authority needs to be satisfied that the proposed development will be in the public interest if the standard is varied because it is consistent with the objectives of the standard and the objectives of the zone.

Preston CJ in Initial Action (Para 27) described the relevant test for this as follows:

“The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development’s consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).”

As demonstrated in this request, the proposed development is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out.

Accordingly, the consent authority can be satisfied that the proposed development will be in the public interest if the standard is varied because it is consistent with the objectives of the standard and the objectives of the zone.”

41. Mr Swan rejected all four grounds (joint expert report at p 8).

42. In respect of the topography planning ground, Mr Swan submitted, that the development goes up two storeys as the land goes down and while one storey may be supported, he does not believe that this is a proper planning ground in support of this design.

43. The second ground submitted by the applicant places significant and unjustified emphasis on higher built forms in the surrounding area, particularly at 31-33 Albany Street. Mr Swan’s opinion is that these buildings, particularly on Albany Street, have a different height limit and that the proposed building’s form and design fails to appropriately respond to the relevant 10 m character along Willoughby Road in which it is located.

44. Mr Swan does not accept that the housing crisis relied upon in ground three is an appropriate planning ground to override the objectives of the height control in this case.

45. Finally, for the reason outlined earlier Mr Swan does not accept that the development achieves the objectives of cl 4.6 as the development does not satisfy the objectives of the height standard.

Findings clause 4.6 written request

46. Before any assessment of the merits of this development application, the preconditions in cl 4.6(3) of the LEP must be satisfied before the Court can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118). They involve two positive opinions of satisfaction that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

47. In this case, the cl 4.6 written request seeks to demonstrate that the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

48. However, for the reasons articulated by Mr Swan, as summarised above, I am not satisfied that the development does satisfy the objective at subcl (a) of the height standard in cl 4.3 of the LEP.

49. Applying orthodox methods of statutory interpretation, the language of the objective is clear. It seeks to promote development that conforms to and reflects natural landforms by stepping development on sloping land to follow the natural ground level.

50. The terms of the objective are plain on their face and in their context. Applying those words to the facts of this case, based on my observations taken at the site view and the evidence more generally, the land is sloping towards the north along Willoughby Road and east to west across the site. The proposed development does not step the development following the natural gradient, with the built form on the top fourth non-compliant storey located on the high side of the development. The plan extract DA 23B at p 21 of the cl 4.6 written request clearly demonstrates that the development steps upwards against the slope rather than stepping down and is thereby at odds with the objective at subcl (a) of the standard.

51. The fourth storey is clearly visible behind the parapet when viewed from Willoughby Road and particularly at the intersection with Albany Street.

Figure 2: Photomontage of proposed development as viewed from the north-eastern corner of the intersection of Willoughby Road and Albany Street

52. Mr Swan’s evidence as summarised above accords with my observations at the site view and my understanding of the objective at subcl (a). For that reason, I prefer his evidence to that of Mr Boston in the cl 4.6 written request.

53. In addressing objective (f) the written request relies on the larger and taller buildings in the background, between the Pacific Highway and Albany Street which are outside the critical area of relevance to inform the relevant character for the site .These larger buildings, including the Coles building and the eight-storey tower immediately behind the site, are subject to different height controls and land use controls under the LEP.

54. In that context, accepting that there is no proposal to change the 10 m height limit along Willoughby Road for land in the MU1 zone, I accept Mr Swan’s evidence that the further set back from the Willoughby Road frontage for the proposed additional storeys fails to satisfactorily address the objective in subcl (f) of the height control.

55. The DCP specifically identifies this precinct of Crows Nest in terms of its character in the following terms:

“The Crows Nest Town Centre is smaller in scale in comparison to St Leonards, with 19th Century, two storey shopfront parapets along Willoughby Road and parts of the Pacific Highway.

The Town Centre services the daily needs of residents and visitors, as well as having a lively dining district. Traffic is actively managed so pedestrians can move freely across Willoughby Road.

The quiet residential neighbourhoods in the east of the Planning Area are low in scale and characterised by wide roads with street tree plantings. Laneways facilitate movement and provide rear lane access to properties. Local shops, dispersed throughout the area, serve both local and regional needs. St Thomas Rest Park, located toward the north-eastern edge of the Planning Area, as well as Hume Street Park, provides much needed open space and complements pocket parks within the area, with access to St Leonards Park on its eastern edge.

Higher density commercial and mixed use development as a result of the State Government’s 2036 Plan for St Leonards and Crows Nest will be located around the rail and metro station and along the Pacific Highway.”

56. While the infill housing provisions of the Housing SEPP allows a potential uplift of 30% in height and floor space ratio in development that provides new residential accommodation, those provisions are only engaged if the development in question includes “affordable housing”. In this case, there is no affordable housing provided by the development application, and thereby no basis upon which the Housing SEPP can be invoked to justify a height increase in the existing building by close to 50%. In any event, as the Council submits that is not an automatic entitlement. Again, there is a requirement to look at the character.

57. The applicant’s reliance, in its cl 4.6 written request, on the area north of Albany Street, zoned R4 High Density Residential and in which the maximum height of buildings is 16 m (with the possibility of achieving a 22 m height if the relevant provisions of the Housing SEPP are engaged) as relevant to the character of the area in the objective at subcl (f) of the height control, in my assessment, is misplaced. The controls identify that the higher density character is intended for the commercial precinct between Albany and through to the Pacific Highway; not this site.

58. Furthermore, I accept Mr Swan’s evidence that the cl 4.6 written request fails to demonstrate sufficient environmental planning grounds to justify contravening the development standard.

59. The planning grounds relied upon in a written request under cl 4.6 must be “environmental planning grounds” by their nature and focus on the aspect of the development that contravenes the standard, not the development as a whole (Initial Action at [23]). With that in mind, I do not accept the applicant’s first planning ground ”topography of the land” and the submission that “…the maintenance of the established built form circumstances and the topography of the land contribute to the extent of building height breach” with an additional partial level of residential accommodation being a proper planning ground to support the breach of the height standard (Ground 1 cl 4.6 written request p 32).

60. Nor do I accept Ground 2 in the cl 4.6 written request at p 32 – that the site’s proximity to the 8-storey shop top housing development located to the west of the site, at 31 Albany Street, is a planning ground to justify the height contravention in this case. Selectively pointing to other approved buildings elsewhere in Crows Nest with five or more storeys in height, and in different zones with different character statements does not actually inform why a fourth storey is justified in this case. Reliance on specifically chosen developments in some broader undefined area is not sufficient. To be plain there is no four-storey building on the eastern or western side of Willoughby Road within the immediate visual catchment of this site and with which the building could be said to be consistent. The evidence is that the additional height visible from Willoughby Road is not consistent with the Willoughby Road streetscape context, particularly the two and three-storey character buildings located immediately adjacent the development.

61. While meeting the objectives of the EPA Act, including adaptive reuse of a commercial building which facilitates the ESD approach as well as the provision of existing housing may be a proper planning ground, I do not accept that the approval of the building height variation in this case will promote good contextually compatible and responsive building design of appropriate amenity consistent with objective at s 1.3(g) of the EPA Act for the reason articulated by Mr Swan.

62. Finally, the contravention of the height control is not in this case consistent with the objective in cl 4.6 as the development does not achieve the objectives of the standard for the reasons stated.

Conclusion

63. Accordingly, I find that the cl 4.6 written request has not adequately demonstrated that compliance with the development standard in cl 4.3 of the LEP is unreasonable or unnecessary or that there are sufficient environmental planning ground to justify the contravention of the standard.

Orders

64. The Court orders that:

1. The appeal is dismissed.

2. Development consent for the development application DA279/22 for alterations and additions to an existing building to create a mixed use development of 2 levels and a mezzanine of commercial and retail premises, and 4 residential units on the upper 2 levels and associated works at 126-128 Willoughby Road, Crows Nest is refused.

3. The exhibits are returned, except for exhibits A and 1.

S Dixon

Senior Commissioner of the Court

**********

Decision last updated: 30 May 2025