Kougellis v North Sydney Council

[2019] NSWLEC 1630

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kougellis v North Sydney Council [2019] NSWLEC 1630
Hearing dates:	Conciliation conference on 5 December 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The applicant is granted leave to amend the application by relying on the amended plans referred to in condition 1 of the conditions of consent at Annexure A. (2)The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $6,000 payable within 90 days from the date of this agreement. (3) The appeal is upheld. (4) Development Application No.40/18 is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Nicholas Kougellis (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2019/102445
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. 40/18 seeking consent for additions and alterations to the existing dwelling including rear extensions, new balconies and a new bedroom and balcony at roof level (the proposal) at 141 Carabella Street, Kirribilli (the site) by North Sydney 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 has been held on 5 December 2019. 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(4) of the North Sydney Local Environmental Plan 2013 (LEP 2013).

Planning framework

6. The site is zoned R2 Low Density Residential pursuant to LEP 2013. The objectives of the R2 zone are:

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

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

• To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

7. The height of buildings development standard for the site is 8.5m.

8. The site is within the Careening Cove Heritage Conservation Area CA10 under Schedule 5 Part 2 of LEP 2013. Clause 5.10(4) requires the consent authority, before granting consent under cl 5.10 in respect of a heritage item or heritage conservation area, to consider the effect of the proposed development on the heritage significance of the item or area concerned.

Contravention of the height of buildings development standard

9. The proposal has a maximum height of 11.14m.

10. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Tudor Planning and Design and dated October 2019.

11. Clause 4.6(4) of LEP 2013 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] NSWLEC 118 [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.”

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(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [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 [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 [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 [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

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 [22]).

17. 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 existing building, a terrace house, is already non-compliant with the height of buildings development standard and the difference in height between the existing building envelope and the proposed building envelope is an additional 0.5–2m. The proposal does not result in any additional amenity impacts on adjoining properties and the proposal is compatible with the development of the adjoining and nearby dwellings within the terrace row.

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 [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 [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 [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 [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 constraints and opportunities of the existing terrace house on the site and its existing height. I am satisfied that justifying the aspect of the development that contravenes the development standard as an appropriate response to the existing building envelope can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [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 [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [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 in the written request.

Effect of the proposal on the heritage significance of the heritage conservation area

22. I have considered the effect of the proposal on the heritage significance of the heritage conservation area and I am satisfied that the proposal satisfactorily preserves the original form of the terrace house when viewed from the public domain.

Orders

23. The orders of the Court are:

1. The applicant is granted leave to amend the application by relying on the amended plans referred to in condition 1 of the conditions of consent at Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $6,000 payable within 90 days from the date of this agreement.

3. The appeal is upheld.

4. Development Application No.40/18 is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (284 KB)

Ground Floor Plan (361 KB)

Architectural Plan -Ground Floor (372 KB)

Architectural Plan -First Floor (346 KB)

Architectural Plan -First Floor Proposed Materials (354 KB)

Architectural Plan -Elevation (412 KB)

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Decision last updated: 19 December 2019