Mackenzie Architects International Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1276

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1276

Hearing dates:

Conciliation conference held on 16 June 2020

Date of orders:

29 June 2020

Decision date:

29 June 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 337/17 (as amended) for the demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping, at 1456-1456A Pacific Highway, Turramurra, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties – non-compliance with development standards for floor space ratio, height of buildings and site requirements for residential flat buildings

Legislation Cited:

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan (Local Centres) 2012

Land and Environment Court Act 1979

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

Texts Cited:

Ku-ring-gai Development Control Plan

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Yates Law (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2019/262907

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. 337/17 for the demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping (the proposal), at 1456-1456A Pacific Highway, Turramurra (the site) by Ku-ring-gai Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act1979 (LEC Act) between the parties, which was held on 16 June 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. On 11 March 2020, the Court made an order granting the applicant leave to amend the application, subject to the applicant paying the respondent costs pursuant to s 8.15(3) of the EPA Act, as agreed or assessed. The parties requested that I note they have reached agreement as to the quantum and timing of costs to be paid under the order made on 11 March 2020 which is $14,000.00 within 28 days of the date of this judgment.

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6(2) of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012).

Planning framework

7. The site is zoned R4 High Density Residential pursuant to LEP 2012 (Land Zoning Map – Sheet 007A). 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.

• To provide for high density residential housing close to public transport, services and employment opportunities.

8. The height of buildings development standard for the site is 17.5m (cl 4.3(2) and Height of Buildings Map – Sheet 007A of LEP 2012). The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2012, are:

4.3   Height of buildings

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

(a)  to ensure that the height of development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b)  to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

9. There are two floor space ratio (FSR) development standards for the site, 1.3:1 for most of the site area and 0.85:1 for the rear portion of the site (cl 4.4(2) and Floor Space Ratio Map – Sheet 007A of LEP 2012). As the site area of the consolidated lots is 3249sqm, the permissible FSR for the site is not adjusted by cl 4.4(2E) of LEP 2012, despite part of the site being identified as “Area 5” on the FSR Map. The objectives of the FSR development standard, at cl 4.4(1) of LEP 2012, are:

(a) to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai,

(b) to enable development with a built form and density compatible with the size of the land to be developed, its environmental constraints and its contextual relationship,

(c) to ensure that development density provides a balanced mix of uses in buildings in the business zones.

10. Clause 6.5 of LEP 2012 is in the following terms and requires the site for a residential flat building development to have a minimum site area of 5000sqm (because the site is identified as “Area 1” on the Lot Size Map – Sheet 007A of LEP 2012) and a frontage of 30m:

6.5 Site requirements for multi dwelling housing and residential flat buildings

(1) The objectives of this clause are—

(a) to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and

(b) to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas.

(2) Development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot unless the lot has an area of at least 1,200 square metres and at least 1 street frontage of not less than—

(a) if the area of the lot is less than 1,800 square metres—24 metres, or

(b) if the area of the land is 1,800 square metres or more—30 metres.

(3) Despite subclause (2), development consent must not be granted for the erection of multi dwelling housing or a residential flat building on any lot on the land identified as “Area 1” on the Lot Size Map unless the lot has an area of 5,000 square metres or more.

(4) For the purposes of this clause, if a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size.

Contravention of the FSR development standard

11. The FSR of the proposal is 1.18:1 on the portion of the site subject to a FSR of 1.3:1 and there is no development proposed on the rear portion of the site subject to a FSR of 0.85:1.

12. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.

13. 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 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.

14. 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) (Initial Action at [29]).

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

15. 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

16. 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]).

17. 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 at [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 at [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).

18. 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]).

19. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the building envelope of the proposal is confined to the portion of the site subject to a FSR of 1.3:1 and there is no part of the building envelope located at the rear of the site. By concentrating the development in the front portion of the site, the biodiversity mapped land to the rear of the site is retained.

20. 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]).

21. 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 constraint of retaining the biodiversity mapped land at the rear of the site. 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

22. 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]).

23. The applicant justifies the location of the building envelope on the front portion of the site in response to the constraint of retaining the biodiversity mapped land at the rear of the site as achieving the objectives of the zone and the development standard, because the proposed building envelope has a form and scale consistent with surrounding development in the town centre and the proposal does not result in any additional amenity impacts on adjoining properties when compared to a compliant building envelope partly located on the environmentally sensitive land.

24. 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.

Contravention of the height of buildings development standard

25. The proposal has a maximum height above existing ground level of 21.7m to the roof at the rear of Unit 601.

26. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.

27. 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 building envelope of the proposal is confined to the front portion of the site and there is no part of the building envelope located at the rear of the site. By concentrating the development in the front portion of the site, the biodiversity mapped land to the rear of the site is retained.

28. 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 constraint of retaining the biodiversity mapped land at the rear of the site. 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].

29. The applicant justifies the location of the building envelope on the front portion of the site in response to the constraint of retaining the biodiversity mapped land at the rear of the site as achieving the objectives of the zone and the development standard, because the proposed building envelope has a form and scale consistent with surrounding development in the town centre, including presenting a 4-6 storey elevation to Pacific Highway, and the proposal does not result in any additional amenity impacts on adjoining properties when compared to a compliant building envelope partly located on the environmentally sensitive land.

30. 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.

Contravention of the site requirements for residential flat buildings development standard

31. The site has an area of 3249sqm and a frontage of 25.79m.

32. The applicant provided a written request seeking to justify the contravention of the site requirements for residential flat buildings development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.

33. The applicant’s written request justifies the contravention of the site requirements for residential flat buildings development standard on the basis that compliance is unreasonable or unnecessary because the applicant made formal offers to amalgamate the site with 1458 Pacific Highway and those offers were rejected; the proposal achieves a form and scale that complies with the controls for setbacks and areas of landscaping required by Ku-ring-gai Development Control Plan; and the proposed building envelope has a form and scale consistent with surrounding development in the town centre.

34. 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 non-compliance with the development standard as justified by the circumstance of being unable to amalgamate the site with an adjoining site. I am satisfied that justifying the aspect of the site that is non-compliant with 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].

35. 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.

Orders

36. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 337/17 (as amended) for the demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping, at 1456-1456A Pacific Highway, Turramurra, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (470356, pdf)

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Decision last updated: 01 July 2020