Kingsford-Smith v The Council of the City of Sydney

[2020] NSWLEC 1576

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kingsford-Smith v The Council of the City of Sydney [2020] NSWLEC 1576

Hearing dates:

Conciliation conference on 17 August 2020

Date of orders:

23 November 2020

Decision date:

23 November 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

See orders at [23]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

Cases Cited:

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

Category:

Principal judgment

Parties:

Ian Kingsford-Smith (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2019/396552

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. D/2019/616 for alterations and additions to the existing dwelling including the construction of a new first floor addition at the rear and attic conversions with front dormer and rear roof addition (the proposal) at 22 Ada Place, Ultimo (the site) by the Council of the City of Sydney (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 17 August 2020. I presided over the conciliation conference.

3. 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.

4. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 4.6(2) and 5.10 of the Sydney Local Environmental Plan 2012 (LEP 2012).

Planning framework

6. The site is zoned R1 General Residential pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

• To maintain the existing land use pattern of predominantly residential uses.

7. The proposal contravenes the development standard for floor space ratio (FSR) for the site of 1:1, pursuant to cl 4.4 of LEP 2012. The objectives of the FSR development standard, at cl 4.4(1), are:

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

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

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

8. The site is located within the Ultimo Heritage Conservation Area (C69) pursuant to Pt 2, Sch 5 of LEP 2012. The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the heritage conservation area, pursuant to cl 5.10(4) of LEP 2012.

Contravention of the FSR development standard

9. The site area is 68.5sqm. The proposal has a FSR of 1.42:1 representing a gross floor area (GFA) of 97.35sqm.

10. The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Jennie Askin of aSquare Planning and dated 8 September 2020.

11. 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 (“Initial Action”) at [13]). 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 at [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 proposed 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.

12. 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) of the LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).

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

13. 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

14. 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]).

15. 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 (“Wehbe”) at [42]-[51] and repeated in Initial Action at [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).

16. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

17. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary for the following reasons:

• The proposal will not result in unreasonable overshadowing of adjoining properties and will allow 2 hours of sunlight over a portion of the east facing rear windows of the adjoining property to the south;

• The proposal will not result in the loss of views from surrounding development;

• The proposal will provide additional space to a small dwelling, which has been designed to ensure that the visual and acoustic privacy of adjoining properties is maintained;

• The proposal will provide additions that are of an appropriate visual bulk for locality given the setback provided at first floor level;

• The proposal will provide additions to a dwelling which will continue to make a positive contribution to the heritage conservation area;

• The additional floor space provided is not visible from the public domain;

• The proposed additional floor area is, in part, contained with the roof space of the historic building and will provide accommodation without adding visual bulk to the terrace house when viewed from the public domain.

18. 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]). 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]).

19. 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 development standard as a justified response to the opportunities and constraints posed by a very small allotment containing a small terrace house that contributes to the collective heritage significance of the Ultimo Heritage Conservation Area. 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 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

20. 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]).

21. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant’s expert in the written request.

Impact on the heritage significance of the Ultimo Heritage Conservation Area

22. I am satisfied that the proposal will not detract from the contribution made by the existing terrace house to the collective heritage significance of the Ultimo Heritage Conservation Area, because the proposal retains the original fabric of the principal form of the terrace house, including the proportions and layout of the principal form, and the additions are confined to the rear of the first floor of the terrace house and within the existing form of the roof when viewed from Ada Place.

Orders

23. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the following architectural plans prepared by Canary Constructions & Management Pty Ltd:

1. Drawing No. A000, over Page, Revision H, dated 10/20;

2. Drawing No. A100, Site Analysis, Revision H, dated 10/20;

3. Drawing No. A110, Roof Plan, Revision H, dated 10/20;

4. Drawing No. A120, Floor Plans, Revision H, dated 10/20;

5. Drawing No. A200, Elevations, Revision H, dated 10/20;

6. Drawing No. A210, Sections, Revision H, dated 10/20;

7. Drawing No. A310, Chimney and Studio Support Proposal, Revision H, dated 10/20;

8. Drawing No. A320, Wall Details, Revision H, dated 10/20;

9. Drawing No. A600, Concept Drainage Plan, Revision H, dated 10/20;

10. Drawing No. A700, Area Schedule, Revision H, dated 10/20;

11. Drawing No. A800, Materials Board, Revision H, dated 10/20;

12. Drawing No. A900, Notification Plan, Revision H, dated 10/20.

2. Leave is granted to the applicant to amend the application to rely on the following revised documents:

1. aSquare Planning Pty Ltd, Request for variation to development standard under cl 4.6 of the Sydney Local Environmental Plan 2012 dated 8 September 2020.

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(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,500 within 28 days of these orders.

4. The applicant’s written request pursuant to cl 4.6 of Sydney Local Environmental Plan 2012, prepared by aSquare Planning Pty Ltd dated 8 September 2020 seeking a variation of the development standard for floor space ratio under cl 4.4 of the Sydney Local Environmental Plan 2012 is well founded and upheld.

5. The appeal is upheld.

6. Development Application No. D/2019/616 for alterations and additions to the existing dwelling including a second storey rear extension and alterations to the existing attic space is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (91263, pdf)

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Decision last updated: 23 November 2020