Made Property Group Pty Limited v North Sydney Council

[2020] NSWLEC 1332

Land and Environment Court

New South Wales

Medium Neutral Citation:

Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332

Hearing dates:

19 and 20 March 2020

Date of orders:

29 July 2020

Decision date:

29 July 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The exhibits are returned, with the exception of Exhibits A, G and 1.

Catchwords:

DEVELOPMENT APPLICATION – proposed residential flat building – applicant has the benefit of existing use rights – applicant proposes a breach of height of buildings development standard – whether height of buildings development standard derogates from incorporated provisions – whether applicant requires a written request under cl 4.6 of North Sydney Local Environmental Plan to vary development standard – whether the applicant’s written request under cl 4.6 of North Sydney Local Environmental Plan is well founded – whether potential impacts of the proposed residential flat building are acceptable – whether the proposed residential flat building complies with the provisions of North Sydney Development Control Plan

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Kiama Local Environmental Plan 2011

Land and Environment Court Act 1979

North Sydney Local Environment Plan 2013

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Cases Cited:

Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 [1997] NSWLEC 27

Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14; [2005] NSWLEC 71

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

oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47

oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2015] NSWLEC 1269

Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7

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

Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046

Saffioti v Kiama Municipal Council [2018] NSWLEC 1426

Saffioti v Kiama Municipal Council [2019] NSWLEC 57

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

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

Texts Cited:

Apartment Design Guide

Macquarie Dictionary (accessed 15 June 2020)

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Made Property Group Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Sattler and Associates P/L (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/229229

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Made Property Group Pty Limited (the Applicant) has appealed the deemed refusal by North Sydney Council (the Respondent) of its development application DA 65/19 for demolition of three existing residential flat buildings (RFBs) and construction of what the Applicant has characterised as a part-2/part-3 storey residential flat building (RFB) (the Proposed Development), and which the Respondent has characterised as a 4-storey RFB.

2. The proposed development would be located at 22, 24 and 26 Spruson Street, Neutral Bay (the Subject Site), and the Applicant said that it does not seek consolidation of these three lots as part of its development application.

3. The three lots are currently occupied by three existing inter-war 3-storey RFBs.

4. The Applicant seeks the benefit of existing use rights for its RFB proposal as this RFB building form would otherwise not be permitted on the Subject Site, which is zoned R3 Medium Density Residential zoning under the provisions of cl 2.3 of North Sydney Local Environmental Plan 2013 (NSLEP).

5. The Subject Site is subject to a 8.5m Height of Buildings (HOB) development standard under the provisions of cl 4.3 of NSLEP, and the Applicant’s Proposed Development has a maximum building height of 12.52m representing an exceedance of the HOB development standard of 4.02m or some 43% above the applicable standard.

6. The Applicant notes that the three RFBs currently occupying the Subject Site also exceed the HOB development standard as follows:

1. at 22 Spruson Street the building has a height of 10.13m, an exceedance of 1.63m or 19.7% of the development standard;

2. at 24 Spruson Street the building has a height of 10.07m, an exceedance of 1.57m or 18.5% of the development standard; and

3. at 26 Spruson Street the building has a height of 10.26m, an exceedance of 1.76m or 20.7% of the development standard.

7. The Subject Site adjoins land that is zoned R2 Low Density immediately to its north and west.

8. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction, and is determined under the provisions of s 4.16 of the EP&A Act.

9. At the commencement of the hearing the Court completed an inspection of the Subject Site. The following objectors made submissions in relation to the proposed development during the site inspection:

1. Karen Bell, a resident of Spruson Street, who said:

1. she held concerns relating to the Proposed Development as follows:

1. the risk of physical damage to her home as a consequence of construction activities proposed on the Subject Site;

2. the length of the Proposed Development along Spruson Street which may block the outlook from her home;

3. the potential for additional cars to cause parking issues within Spruson Street; and

4. the impact of the proposed Development on what she described as an underground watercourse.

2. she had been asked by Mr Christopher Bradley, another Spruson Street resident, to submit the following concerns on his behalf:

1. the extent, and specifically, the depth of excavation required for the Proposed Development;

2. the relative size of the Proposed Development which he said was significantly greater than surrounding buildings;

3. the length of the proposed construction process timeline and potential damage to his property from use of jackhammers;

4. the generation of electro-magnetic fields from the substation required for the Proposed Development; and

5. a general concern in relation to the construction timeline.

2. Mr Mark Isherwood, a resident of Spruson Street, who raised the following matters in relation to the Proposed Development:

1. the height and size of the Proposed Development, which, in his opinion, was significantly greater than other buildings in the street;

2. the length of the Proposed Development’s wall adjoining 20 Spruson Street which he said would affect privacy to the balconies on 20 Spruson Street;

3. the design of the Proposed Development was not, in his view, in context with the area, including in relation to heritage listed cottages located opposite the Subject Site;

4. the council controls applicable to the Subject Site are those for land zoned R3 and not R4, and these should apply from the natural surface levels of the site; and

5. the Applicant’s development application was not, in his opinion consistent with the Court’s principles for taking account of the concerns of neighbours in relation to new developments.

3. Mr Stephen Marshall, a further resident of Spruson Street, who said that his concerns included the following:

1. the height of the Proposed Development;

2. the presence of large buildings on Spruson Street that, in his view, would be an eyesore;

3. the appearance of the Proposed Development which he said would resemble a bunker in the middle of heritage cottages; and

4. the Applicant’s proposed location of a sub-station next to the garage on his property and potential electro-magnetic radiation impacts associated with the substation.

4. Mr Warwick Amos, a resident of a property to the rear of the Subject Site, who said that:

1. he objected to the Applicant’s proposal for disposal of stormwater from the Subject Site via an easement across his property;

2. the Applicant should be required to install pumps to deal with stormwater disposal as an alternative to seeking an easement through his property;

3. he would not agree to grant the easement through his property if that were to be requested by the Applicant as the grant of an easement would be too onerous in his view; and

4. he proposed that the Applicant be required to provide an alternate solution for the drainage of stormwater from the Subject Site, and that he had been advised by his surveyor that Council’s have alternate controls that might be used for this purpose.

10. At the hearing, the Applicant sought leave to rely on amended plans, and leave was granted without objection.

11. The Applicant said that its amended plans provided for:

1. the demolition of the three existing RFBs on the Subject Site, as previously proposed;

2. site preparation works including excavation and tree removal;

3. construction of a single RFB, that presents to Spruson Street as a part-2/part-3 storey structure, with two basement levels of car parking;

4. a total of 13 apartments (reduced from a previously proposed 20 apartments), including eight 3-bed units and five 2-bed units;

5. a total of 25 car spaces (a reduction from a previously proposed 48 spaces);

6. access to the basement car parks via car lifts, including an entry car lift at the northern end of the Proposed Development, and an exit car lift at its southern end;

7. side setbacks of 3.75m (increased from a previously proposed 3.0m); and

8. bicycle storage, apartment storage areas, and waste facilities.

12. At the commencement of the hearing on 20 March 2020, the Parties advised that several matters that either had been in contention between them or might otherwise have been matters for consideration in relation to the appeal had been resolved. These concerned contentions in relation to:

1. stormwater management, which the Respondent advised was no longer pressed;

2. proposals for excavation of the Subject Site, which the Respondent said it no longer pressed;

3. car parking arrangements, including the use of car lifts, in relation to which the Respondent said the Applicant’s proposed arrangements were now acceptable; and

4. landscaping, which the Respondent said now complied with the provisions of cl 1.5.6 of Part B of North Sydney Development Control Plan 2013 (NSDCP) (see below at [33(2)(j)(iii)]).

13. The Respondent also said that it had proposed a condition of consent in relation to the loss of affordable housing, which it said would resolve matters in relation to affordable housing if it were accepted by the Applicant.

14. Based on the advice of the Respondent, and following the Applicant having been granted leave to rely on its amended plans, it was agreed that the contentions remaining between the Parties in the appeal related to the following aspects of the Proposed Development:

1. the height, bulk and scale of the Proposed Development;

2. potential adverse impacts of the Proposed Development on adjoining land, particularly in relation to views from some private property and from the public domain; and

3. the compliance of the Proposed Development with a range of controls within NSDCP which are applicable to development on the Subject Site.

15. More specifically, in relation to the height, bulk and scale of the Proposed Development:

1. the Respondent said that, while acknowledging the Applicant’s Proposed Development enjoyed existing use rights in relation to its proposed RFB development on the Subject Site, the provisions of cl 4.3 of NSLEP in relation to the HOB development standard did not derogate, nor did they have the effect of derogating, from the incorporated provisions referred to in s 4.67 of the EP&A Act (see below at [20]), and referred to subsequently in this judgment as ‘the incorporated provisions’). Consequently, the Respondent said that the compliance of the Proposed Development with the provisions of cl 4.3 of NSLEP remained in contention;

2. the Applicant said that, in its submission, given that the Proposed Development enjoyed existing use rights in respect of the Subject Site, the provisions of cl 4.3 of NSLEP would have no force or effect as they would derogate, or have the effect of derogating, from the incorporated provisions. Consequently, the Applicant said that:

1. compliance of the Proposed Development with the provisions of cl 4.3 of NSLEP was not required;

2. notwithstanding its submission above [at (a)], the Court was required to undertake a merits assessment of the height of the Proposed Development as per the provisions of s 4.15(1)(b) and s 4.15(1)(c) of the EP&A Act ([see below at [17] ); and

3. if the Court did not agree with its submissions above [at (a)], and the Court was of the view that the provisions of cl 4.3 of NSLEP did not derogate from the incorporated provisions, then it had provided a written request made under the provisions of cl 4.6 of NSLEP (see below at [29]) that sought to vary the HOB development standard and which it said was well founded and should be upheld.

Statutory context

Environmental Planning and Assessment Act 1979

16. The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are as follows:

s 1.3 Objects of Act

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

17. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

…

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iii) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

18. Section 4.15(3A) of the of the EP&A Act further provides that:

4.15   Evaluation

…

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

…

19. Section 4.66 of the of the EP&A Act concerns the continuance of, and limitations on, existing use, and provides as follows:

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises—

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually, physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months

20. Section 4.67 of the EP&A Act concerns regulations respecting existing use, and provides as follows:

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to -

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use.

(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.

Environmental Planning and Assessment Regulations 2000

21. Part 5 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) concerns existing use, and its objective is the regulation of existing uses under s 4.67(1) of the EP&A Act (see above at [20]). The provisions of this Part of the Regulation are the “incorporated provisions” referred to in s 4.67(2) of the EP&A Act.

21. Section 41 of the Regulation concerns the allowance of certain development in relation to existing use of a site, and provides as follows:

(1) An existing use may, subject to this Division—

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

(2) However, an existing use must not be changed under subclause (1)(e) or (f) unless that change—

(a) involves only alterations or additions that are minor in nature, and

(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and

(c) does not involve the rebuilding of the premises associated with the existing use, and

(d) does not involve a significant intensification of that existing use.

(e) (Repealed)

(3) In this clause—

commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument).

light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).

23. Section 42 provides that development consent is required for enlargement, expansion and intensification of existing uses as follows:

(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification -

(a) must be for the existing use and for no other use, and

(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

24. Section 44 provides that development consent required for rebuilding of buildings and works with existing use rights as follows:

(1) Development consent is required for any rebuilding of a building or work used for an existing use.

(2) The rebuilding -

(a) must be for the existing use of the building or work and for no other use, and

(b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

State Environmental Planning Policy No. 65—Design Quality of Residential Apartment Development

25. State Environmental Planning Policy No. 65—Design Quality of Residential Apartment Development (SEPP 65) aims to improve the design quality of residential flat development in New South Wales.

26. SEPP 65 Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.

27. Schedule 1 of SEPP 65 provides a series of design principles to guide development of residential apartments, of which the following are of particular relevance in this appeal:

Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

...

Principle 5: Landscape

Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.

Good landscape design enhances the development’s environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks.

Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours’ amenity and provides for practical establishment and long term management.

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

...

Principle 9: Aesthetics

Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure. Good design uses a variety of materials, colours and textures.

The visual appearance of a well designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

North Sydney Local Environmental Plan 2013

28. Development on the Subject Site is subject to the provisions of North Sydney Local Environmental Plan 2013 (NSLEP). The following provisions of NSLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of NSLEP. The Subject Site is zoned R3 Medium Density Residential, and under the provisions of cl 2.3 of NSLEP, the objectives of this zone are to:

Zone R3 Medium Density Residential

1 Objectives of zone

provide for the housing needs of the community within a medium density residential environment.

provide a variety of housing types within a medium density residential environment.

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

encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

provide for a suitable visual transition between high density residential areas and lower density residential areas.

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

1. The Applicant’s residential flat building development is not a permissible form of development within this zone under the provisions of NSLEP. However, the Applicant says, and the Respondent accepts, that the Applicant enjoys the benefit of existing use rights on the Subject Site with respect to its proposed RFB development.

2. Clause 4.3, concerning the height of buildings, the objectives of which are to:

4.3 Height of buildings

…

(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.

1. an 8.5m height of buildings development standard is applicable to developments on the Subject Site, and the Applicant’s proposed development does not comply with this standard.

29. Clause 4.6, which makes provision for proponents to seek an exception to a development standard, and which, in relation to this appeal, provides as follows:

(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.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(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.

(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.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

1. The Applicant has prepared a written request under the provision of cl 4.6 of NSLEP seeking to vary the application of the height of buildings development standard in cl 4.3 of NSLEP in relation to its Proposed Development.

North Sydney Development Control Plan 2013

30. The Proposed Development is subject to the provisions of NSDCP the purpose of which is to supplement NSLEP 2013 and provide more detailed provisions to guide future development, such that impacts on the community and environment are minimised.

31. The aims of NSDCP are to:

“1.6 Aims of this Development Control Plan

(a) ensure that development positively contributes to the quality of the natural and built environments;

(b) encourage development that contributes to the quality of the public domain;

(c) ensure that development is economically, socially and environmentally

sustainable;

(d) ensure future development has consideration for the needs of all members of the community;

(e) ensure development positively responds to the qualities of the site and its

context;

(f) ensure development positively responds to the character of the surrounding area; and

(g) ensure that the aims of Council’s 2020 Vision – North Sydney Community

Strategic Plan are achieved.”

32. Part A of NSDCP provides guidance in relation to general requirements concerning development within the North Sydney Local Government Area (NS LGA). It includes:

1. Section 1 that provides an introduction to the NSDCP, including an overview of each section of NSDCP. It notes the following in relation to Part B of NSDCP:

“Part B of the DCP comprises 21 sections, each containing provisions relating to a specific type of development or issue.

….

Many of the provisions are performance based, which provides added flexibility in meeting the desired intent of the provision where developments may not necessarily meet specific numerical standards, due to site or environmental constraints.

Generally, meeting the specific objectives and provisions of each section will achieve overall compliance. The DCP format is intended to encourage flexibility and innovation in development while ensuring the objectives for North Sydney are achieved. In this context Council will not consider favourably development proposals that are inconsistent with the objectives of the DCP. However, Council will consider development proposals that achieve the objectives of the DCP by means other than the provisions in this DCP.”

2. Section 5, provides guidance in relation to site analysis.

33. Part B provides development controls applicable within North Sydney Local Government Area (NS LGA), and

1. Section 1 of Part B provides guidance and controls relating to residential development which includes the following objectives that are of relevance to the current appeal:

“

…

O4 does not have adverse impacts on residential amenity or environmental quality;

O5 is in context with surrounding development;

O6 contributes to the garden setting and lower scale character of North Sydney’s residential neighbourhoods;

O7 provides safe and comfortable accommodation;

O8 is consistent with the character that is described in the relevant area character statements;

O9 incorporates innovative sustainable design to reduce energy and water consumption, and meets or exceeds sustainability requirements, and

O10 minimise stormwater runoff, maintain or improve stormwater quality and encourage recycling where possible.”

2. Of particular relevance in the current appeal are the following provisions of Section 1 of Part B:

1. subsections 1.2.2 and 1.2.3 concerning the maintenance of residential accommodation and affordable housing respectively;

2. subsection 1.3.6 concerning views, which provides as follows:

“Due to North Sydney’s sloping topography and proximity to Sydney Harbour, views and vistas comprise special elements that contribute to its unique character and to the amenity of both private dwellings and the public domain.

New development has the potential to adversely affect existing views. Accordingly, there is a need to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties.

When considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site.

Objectives

O1 To protect and enhance opportunities for vistas and views from streets and other public places.

O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

Provisions

P1 Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed.

P2 Development should be designed to maximise the sharing of views from surrounding properties and public places.

P3 Ensure that existing and proposed dwellings will have an outlook onto trees and sky.

P4 Where a proposal is likely to adversely affect views from either private or public land, Council will give consideration to the Land and Environment Court’s Planning Principle for view sharing established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Planning Principle is available to view on the Land and Environment Court’s website (

3. subsection 1.4 in relation to quality built form, which states that:

“In response to their local context, buildings need to be designed to respect the existing topography and relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape. A comfortable and memorable street will be one where no one building or feature dominates.

Kerb and guttering, footpaths, fences, front gardens and the street frontage of buildings all contribute to the appearance of a street and influence how people feel in them and about them. Streets where people feel comfortable will exhibit consistency in these elements and relationships between the scale of these elements.”

4. subsection 1.4.1 concerning context and which includes the following objectives and provisions:

“Objectives

O1 To ensure that the site layout and building design responds to the existing characteristics, opportunities and constraints of the site and within its wider context (adjoining land and the locality).

Provisions

P1 Proposed developments must be designed to respond to the issues identified in the site analysis and in the relevant area character statement (refer to Part C of the DCP).”

5. subsection 1.4.2 concerning subdivision patterns, and which includes the following objectives and provisions:

“Objectives

O1 To ensure that the characteristic subdivision pattern remains apparent, even if lots are subdivided or amalgamated.

Provisions

P1 Maintain lot sizes, shape and orientation identified in the relevant area character statement (refer to Part C of the DCP), or if not identified in the relevant area character statement, that are characteristic of the area.

P2 Design and locate buildings to reinforce the characteristic subdivision pattern in the neighbourhood (i.e. walls of buildings are generally built parallel to the property boundaries).

P3 Where lots have been amalgamated, the bulk of larger buildings must be articulated through the use of bays or indents on the original lot line.

P4 Residential flat buildings using single-aisle parking should not be constructed on lots with a street frontage of less than 15m. If double-aisle parking is proposed, lots should have a street frontage of not less than 18m.”

6. subsection 1.4.6 concerning setbacks, and which includes the following objectives and provisions:

“Objectives

O1 To reinforce the characteristic pattern of setbacks and building orientation within the street.

O2 To control the bulk and scale of buildings.

O3 To provide separation between buildings.

O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.

Provisions

Front

P1 The front setback must match the alignment of the primary facades of buildings on adjoining properties. Where different setbacks occur, the average of the setbacks of those primary facades is to be used.

Side

P2 Building setbacks are to comply with the requirements set out in Table B-1.5 (of NSDCP).”

7. subsection 1.4.7 concerning form, massing and scale, which includes the following objective and provision that are of relevance in this appeal:

“Objectives

O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings.

Provisions

P1 The height of buildings is not to exceed that stipulated within cl.4.3 to NSLEP 2013.

….

P7 Residential flat buildings should use a pitched roof form to reflect the prevailing roof typology or that identified in the relevant area character statement (refer to Part C of the DCP).

P8 Despite P7 above, Council may consider approval of a residential flat buildings with a flat roof, but only where:

(a) the development complies with the height requirements under P1 above; and

(b) where the top-most storey has been setback to comply with a 36 degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4).”

8. subsection 1.4.8 concerning built form character, which includes the following objective and provisions that are of relevance in this appeal:

“Objectives

O1 To ensure that the design of new buildings reflects and reinforces, or is complementary to, the existing character of the locality.

Provisions

General

P1 Where a building is part of a uniform group of buildings of similar character, locate any additions or alterations to the rear and not visible from the street or any public place. Council may permit alterations and additions to the front of a building, but only where those alterations and additions contribute to, or are sympathetic to the character of

those buildings.

P2 Where a building is to be located amongst buildings having a consistent façade, repeat the size, location and proportions of window, door openings and other distinctive features such as roof form.

...

Residential Flat Buildings

P8 Building facades should be modulated in plan and elevation and articulated to reduce the appearance of the building’s bulk and to express the elements of the building's architecture.”

9. subsection 1.4.12 concerning colours and materials, which includes the following objective and provision that are of relevance in this appeal:

“Objectives

O1 To ensure new buildings reflect and reinforce the existing and desired character of a locality.

Provisions

P1 Buildings should use colours, finishes and materials identified in the relevant area character statement (refer to Part C of the DCP), if provided.”

10. The following subsections, which the Respondent accepts have been satisfied by the Proposed Development, as amended:

1. subsection 1.5.4 concerning vehicular access and car parking;

2. subsection 1.5.5, concerning site coverage;

3. subsection 1.5.6 concerning landscape areas; and

4. subsection 1.5.7 concerning excavation.

3. Also of relevance in the current appeal are the following provisions of Part C of NSDCP which provides planning statements for various parts of the NS LGA, including:

1. Section 7.0, which provides the character statement for the Neutral Bay Planning Area, and which identifies the following relevant desired future outcomes for quality built form in the area:

“• views of surrounding areas and the harbour are available through sites and achieved through setbacks of the built form from all boundaries and low, open fencing”

2. Section 7.2 of NSDCP which provides the character statement for the Neutral Neighbourhood, within which the Subject Site is located, and which identifies the following significant elements and desired future character and desired built form descriptors:

1. Significant elements:

“P6 Steep topography to the north of Anderson Park.

…

P9 The following views and vistas are to be preserved and where possible enhanced:

(a) views from streets and reserves to Sydney Harbour and beyond.

(b) Westleigh Street Lookout (49), Reserve Street Lookout (50), Anderson Street Lookout (51), Phillips Street Lookout (52), Holdsworth Road Lookout (53), Spruson Street Lookout (54).”

2. Desired future character:

“Diversity

P1 Predominantly low density residential accommodation in the form of dwelling houses, semi-detached houses and dual occupancies.

…

P2 Pockets of attached dwellings, multi dwelling housing and residential flat buildings according to zone.”

3. Desired built form:

“Form, massing and scale

P1 Development should be carefully designed to follow the topography of the land, with buildings on sloping sites.”

Contentions

34. As discussed above at [14(1)] and earlier, a principal contention in this appeal concerned the proposed breach of the height of buildings development standard under cl 4.3 of NSLEP, and whether:

1. the provisions of cl 4.3 of NSLEP derogate from the incorporated provisions, that is the provisions of ss 42 and 43 of the Regulation, and:

1. if they do not derogate from the incorporated provisions, and the Applicant’s Proposed Development is not compliant with the height of buildings development standard, whether the Applicant’s written request under cl 4.6 of NSLEP to vary the height of buildings development standard in cl 4.3 of NSLEP is well founded;

2. if they do derogate from the incorporated provisions, whether, on the basis of a merits assessment undertaken in line with the requirements of s 4.15 of the EP&A Act and consistent with principles established within relevant cases precedent of the Court, the height of the Proposed Development is acceptable.

35. The other contentions requiring resolution in the appeal concerned:

1. potential adverse impacts of the Proposed Development on adjoining land, particularly in relation to views from some private property and from the public domain; and

2. the compliance of the Proposed Development with a range of controls within NSDCP which are applicable to development on the Subject Site.

36. Consequently, the specific questions addressed in this appeal, and the order in which I will address them, are as follows:

1. does cl 4.3 of NSLEP derogate from the incorporated provisions of the Regulation? The answer to this question will then require one of two questions to be resolved, those being:

1. if cl 4.3 of NSLEP does not derogate from the incorporated provisions and given the Applicant’s Proposed Development exceeds the height development standard in cl 4.3 of NSLEP, is the Applicant’s cl 4.6 written request to vary the height of buildings development standard in NSLEP well founded?

2. if cl 4.3 of NSLEP does derogate from the incorporated provisions, are the potential adverse impacts of the Proposed Development on adjoining land, particularly in relation to views from some private property and from the public domain, acceptable?; and

2. does Proposed Development comply with the relevant controls within NSDCP that the Respondent has identified within its statement of facts and contentions as applicable to development on the Subject Site?

Do the provisions of cl 4.3 of NSLEP derogate from the incorporated provisions of the Regulation?

37. The Respondent contended that the provisions of cl 4.3 of NSLEP did not derogate from the incorporated provisions relying on the Court’s decision in the case of Saffioti v Kiama Municipal Council [2019] NSWLEC 57 (referred to hereafter as ‘the Saffioti appeal’), which dealt with an appeal under s 56A of the LEC Act against a decision in the case of Saffioti v Kiama Municipal Council [2018] NSWLEC 1426 (referred to hereafter as ‘the original Saffioti decision’).

38. In response to this contention, the Applicant had submitted that:

1. the meaning of the term ‘derogate’ had been considered by Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; [1997] NSWLEC 27 (at [378]) (referred to hereafter as ‘Fabcot”);

2. relying on Fabcot, the HOB development standard in cl 4.3 of NSLEP does derogate from the incorporated provisions and therefore had no force or effect, and did not apply in relation to its development application; and

3. because the provisions of cl 4.3 of NSLEP derogate from the incorporated provisions, and are of no force of effect, the Proposed Development, and in this case its proposed height, should be assessed generally on the basis of the provisions of cl 4.15(1) of the EP&A Act, and this assessment should be undertaken applying the principles identified by Roseth SC, as he was then, in Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14; [2005] NSWLEC 71, hereafter referred to as ‘Fodor’.

39. I will address these differing submissions by first reviewing the Court’s judgment in the Saffioti appeal along with the original Saffioti decision, and will then consider the specific submissions of the Parties above (at [37] and [38]).

40. In the Saffioti appeal, Preston CJ found as follows:

“59 Contrary to Ms Saffioti’s submissions, I do not read the Commissioner as having adopted what she said the Council had submitted in the Court below that the test for whether a provision of a local environmental plan derogates is whether the provision prevented the making of a development application. The Commissioner did record the Council as having made that submission (see, for example, [60] of the judgment) but that was not the approach the Commissioner said he adopted, either generally in relation to the meaning of “derogate” or specifically in relation to cl 6.4(4) of KLEP, in the paragraphs of the judgment quoted above.

60 Generally, the Commissioner adopted and applied the approach of the Commissioner and Sheahan J in oOh! Media Assets Pty Ltd v The Council of the City of Sydney that “any derogation must relate to the existing use and not the making of a development application” and that there needs to be an assessment of the proposed development, to change the existing use in some way permitted by the incorporated provisions, in line with the requirements of s 4.15 of the EPA Act. The Commissioner found that “the Court, having accepted that the Applicant’s proposal for the construction of a new dwelling is entitled to existing use rights, must undertake an assessment of the proposed development in line with the requirements of s 4.15 of the EPA Act”, including the controls in cl 6.4(4) of KLEP (see [66], [78] and [89] of the judgment).

61 Specifically, the Commissioner found that cl 6.4(4) of KLEP did not derogate from Ms Saffioti’s existing use rights because nothing in the subclauses of cl 6.4(4) served to prohibit Ms Saffioti’s proposed development to enlarge, expand or intensify the existing use of the land for a dwelling. Rather, the Commissioner found, “these subclauses require that a proposed development comply with their provisions, and they offer three pathways to compliance, through avoidance, minimisation or mitigation of adverse environmental impacts on terrestrial biodiversity” ([95(5)(d)], [96(1)] and [160(2)] of the judgment). As the provisions of cl 6.4 of KLEP do not derogate, the Commissioner found that the provisions do provide a basis for assessment of Ms Saffioti’s development application as required under s 4.15 of the EPA Act, consistent with the approach to assessment adopted by the Commissioner and Sheahan J in oOh! Media Assets Pty Ltd v The Council of the City of Sydney: see [95(5)(e)], [96(2)] and [160(4)] of the judgment.”

41. Importantly, in my view, the Chief Judge said (at [64] to [70]) of the Saffioti appeal:

“64 There is nothing inherent in development involving a change in an existing use that would preclude such development being designed, sited or managed to avoid any significant adverse environmental impact, or to minimise that impact, or to mitigate that impact. Hence, a provision requiring a consent authority to be satisfied, before being able to grant consent to such development, that the development is designed, sited or managed to avoid, minimise or mitigate any significant adverse environmental impact, does not derogate from the incorporated provisions that permit a development application for such development to be made.

65 As the Council submitted, the decisions in Iris Diversified Property Pty Ltd v Randwick City Council and Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council, which found that provisions of a local environmental plan fixing development standards for development do not derogate from the incorporated provisions, are consistent with this conclusion that cl 6.4(4) of KLEP does not derogate from the incorporated provisions.

66 I reject Ms Saffioti’s submission that the test for derogation is whether the provisions of an environmental planning instrument, in this case cl 6.4(4) of KLEP, detract from or deleteriously impinge upon “the rights otherwise enjoyed and protected for (and by) an existing use right…and relevantly here, entitlement to enlarge, expand or intensify that use”.

67 Care needs to be taken when referring to “an existing use right”. The primary right is the right in s 4.66 of the EPA Act to continue an existing use or in s 4.68 to continue another use for a lawful purpose. However, these rights, by themselves do not authorise any change in the existing use or other lawful use: see 4.66(2) and s 4.68(2) of the EPA Act.

68 Any entitlement to change an existing use comes from Part 5 of the EPA Regulation made under s 4.67 of the EPA Act. Clause 41 does provide that an existing use may be changed in one or more of the ways specified in cl 41(1) and cll 42 – 45 of the Regulation, but “subject to” the provisions of Part 5. Each of the provisions of cll 42 – 45 of the EPA Regulation require development consent for the particular change in the existing use specified in the clause. Of relevance here, cl 42 requires development consent for any enlargement, expansion or intensification of an existing use.

69 Accordingly, there is no entitlement to change an existing use in one or more of the ways permitted by the incorporated provisions, only to make a development application seeking consent to change an existing use in one or more of the ways permitted by the incorporated provisions and have a consent authority consider and determine that development application. The test, therefore, is not whether cl 6.4(4) of KLEP detracts from or deleteriously impinges upon any entitlement to enlarge, expand or intensify the existing use, but rather the entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use.

70 For the reasons I have given, cl 6.4(4) of KLEP does not derogate from this entitlement to make, and have the consent authority consider and determine, a development application to enlarge, expand or intensify the existing use. For these reasons, I reject Ms Saffioti’s grounds of appeal claiming that the Commissioner erred on a question of law in holding that cl 6.4(4) of KLEP did not derogate from the incorporated provisions.”

42. The Parties in this appeal preferred differing interpretations for the application of the findings of the Chief Judge in the Saffioti appeal, as follows:

1. the Applicant submitted that:

1. in the original Saffioti decision and in the Saffioti appeal, the Court did not deal with a breach of a development standard per se, as is the case in the current appeal. Rather, in the Saffioti appeal the Court had considered the operation of a clause in which the consent authority was required to reach a state of satisfaction concerning one of three matters set out in the relevant clause, that being cl 6.4 of Kiama Local Environmental Plan 2011 (KLEP);

2. while its Proposed Development exceeded the height of the existing three RFBs on the Subject Site (see above at [6], it did not matter whether the Proposed Development exceeded the height of the existing buildings, as the principal question to be addressed was whether the provisions of cl 4.3 of NSLEP which established the HOB development standard derogated from the incorporated provisions;

3. even if the Court were to take the meaning of the term “derogate” to be limited to the term “prohibit”, the Court would accept that a development standard is in the nature of a prohibition as, in the absence of a successful written request to vary the standard under the provisions of cl 4.6 of NSLEP, there would be no power for a consent authority or the Court on appeal to grant consent to a development application which exceeded the HOB development standard; and

4. consistent with the decision of Pain J in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 (hereafter referred to as ‘Stromness’), because a development standard, absent a successful written request to vary the standard, is in the nature of a prohibition, so it must derogate from the incorporated provisions.

2. the Respondent said that:

1. it acknowledged that the provisions of cl 2.3(1)(d) of NSLEP, which prohibit certain developments within the zoning table of NSLEP, did derogate from the incorporated provisions because they deleteriously impinged upon the Applicant’s entitlement to make, and have the consent authority consider and determine, its development application to rebuild, or to enlarge, expand or intensify, the existing RFB use of the Subject Site;

2. it noted the findings of Preston CJ in the Saffioti Appeal at [64], that a provision requiring a consent authority to be satisfied, before being able to grant consent to such development, that the development is designed, sited or managed to avoid, minimise or mitigate any significant adverse environmental impact, does not derogate from the incorporated provisions that permit a development application for such development to be made;

3. it also noted that in the findings of Preston CJ in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, cl 4.6 of NSLEP requires that a consent authority reach a state of satisfaction with respect to the requirements of cl 4.6(4) of NSLEP;

4. the permissive power to grant consent subject to the provisions of cl 4.6(2) of NSLEP, and notwithstanding the Applicant’s proposed breach of the height of building development standard in cl 4.3 of NSLWEP, mean that the provisions of cll 4.3 and 4.6 of NSLEP, when read together, do not deleteriously impinge upon the Applicant’s entitlement to make, and have the consent authority consider and determine, its development application to enlarge, expand or intensify the existing RFB use of the Subject Site; and

5. on the basis of its submission above at ((1)(d)), the provisions of cl 4.3 of NSLEP do not derogate from the incorporated provisions.

43. I have considered the submissions of the Parties on this matter and concluded that I prefer the submissions of the Respondent because:

1. I agree with the Respondent’s submissions that:

1. the provisions of NSLEP need to be read as a whole;

2. the provisions of cl 4.3 of NSLEP when read together with those of cl 4.6 of NSLEP, as they should be, provide a pathway for the grant of consent to the Applicant’s Proposed Development, based on a consent authority or the Court on appeal, reaching a state of satisfaction with respect to the matters in cl 4.6(4) of NSLEP that require:

1. the Applicant’s written request must have adequately addressed the matters required to be demonstrated by subcl 4.6(3) of NSLEP concerning a demonstration that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard; and

2. the Proposed Development must 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.

2. consistent with the findings of the Chief Judge at [64] in the Saffioti appeal, the provisions of cl 4.3 of NSLEP, read in conjunction with those of cl 4.6 of NSLEP require that a consent authority, or the Court on appeal, be satisfied before being able to grant consent to such development, in the current case in relation to the matters in cl 4.6(4) of NSLEP, and so do not derogate from the incorporated provisions that permit a development application for the Applicant’s RFB development to be made.

44. It is also my opinion that:

1. notwithstanding that the Chief Judge did not rely upon, nor indeed reference, the judgment of Pain J in Stromness within the Saffioti Appeal, he must have had regard to that judgment in preparing his decision as it was explicitly referenced in the original Saffioti decision; and

2. the interpretation of the term ‘derogate’ by the Chief Judge in the Saffioti appeal provided a refinement to the meaning of the term ‘derogate’ as quoted by the Applicant from the judgment of Lloyd J in Fabcot, and is not in conflict with it.

45. Further, I do not embrace the submission of the Applicant as recorded above at [42(1)(c)]. The implications of the submission would be that:

1. the provisions of cl 4.3 of NSLEP would need to be capable of both derogating and not derogating from the incorporated provisions because:

1. on the Applicant’s submission, in circumstances where a cl 4.6 written request is not upheld, the Court should consider that the provisions of cl 4.3 of NSLEP would derogate from the incorporate provisions;

2. a corollary of the statement at (1) is that in circumstances where a cl 4.6 written request is upheld, the Court should consider that the provisions of cl 4.3 of NSLEP do not derogate from the incorporate provisions.

46. In my assessment, a more logical conclusion is that the provisions of cl 4.3 of NSLEP do not derogate from the incorporated provisions because, by the action of cl 4.6 of NSLEP, the Applicant’s development application is able to be considered and determined by a consent authority, or the Court on appeal.

47. This conclusion is, in my view, consistent with the findings of the Chief Judge in the Saffioti appeal, and with the approach of the Acting Senior Commissioner in oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2015] NSWLEC 1269 (at [31]), referenced by Sheahan J in oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47 (at [60]) that “… any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to that development application pursuant to s 79C assessment are applied”.

48. The consequence of this finding is that, having accepted that the Applicant’s proposal for the construction of a new dwelling, in this case a RFB, is entitled to existing use rights, the Court should undertake an assessment of the proposed development in line with the requirements of s 4.15 (formerly s 79C) of the EPA Act, including that in s 4.15(1)(a)(i) which requires an assessment against the provisions of any environmental planning instrument, such as NSLEP.

49. This is also consistent with the findings in the original Saffioti decision (at [66], [78] and [89]).

Is the Applicants’ cl 4.6 written request to vary the height of buildings development standard prescribed for the Subject Site under cl 4.3 of NSLEP 2013 well founded?

50. The HOB development standard applicable to the Subject Site under cl 4.3 of NSLEP is 8.5m. The Applicant’s Proposed Development exceeds that development standard by 4.02m or 47.3%.

51. Within its statement of facts and contentions the Respondent had submitted that, in its view, the provisions of cl 4.3 of NSLEP did not derogate from the incorporated provisions and, as a consequence, a cl 4.6 written request was required from the Applicant seeking a variation to the height of buildings development standard applicable to the Subject Site.

52. The Applicant has prepared a written request, prepared pursuant to the provisions of cl 4.6 of NSLEP, to vary the HOB development standard applicable to the Subject Site under cl 4.3 of NSLEP. This document was prepared on behalf of the Applicant by SJB Planning and was dated 20 March 2020. It was tendered as evidence at the hearing, and it confirmed the variance to the height of buildings development standard sought by the Applicant.

53. The height of building development standard in cl 4.3 of NSLEP is not a development standard that is expressly excluded from the operation of cl 4.6(2) of NSLEP, and so the Applicants’ written request to vary this standard can be considered in this appeal.

54. The provisions of cll 4.6(3) and 4.6(4) of NSLEP include preconditions to the exercise of power to grant consent, and I must be satisfied that the preconditions have been met in order for the power to grant consent to be enlivened.

55. In assessing the Applicant’s cl 4.6 written request, I will first summarise the requirements for the consent authority’s consideration of these requests, which also apply to the Court on appeal.

Requirements for consideration of cl 4.6 written requests

56. The approach to determining a cl 4.6 request has been the subject of a judgment of Preston CJ in the matter of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (referred to hereafter as ‘Initial Action’), in which the Chief Judge expanded on what he had previously described in Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 as the correct approach to assessing whether a cl 4.6 written request is well founded.

57. The Chief Judge said in Initial Action (at [13]) that cl 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power in cl 4.6(2) to grant development consent for development that contravenes a development standard.

58. He further stated (at [14]) that:

“The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii)

…

The formation of the opinions of satisfaction as to the matters in cl 4.6(4)(a) enlivens the power of the consent authority to grant development consent for development that contravenes the development standard.”

59. Finally, the Chief Judge said (at [15]) that:

“The first opinion of satisfaction in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).”

60. In addition, under cl 4.6(4)(a)(ii) of NSLEP, the consent authority must also be satisfied that:

1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and with the objectives for the development within the zone in which the development is proposed to be carried out.

61. Under cl 4.6(3) of NSLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the Applicant seeking to justify the contravention of the development standard by demonstrating:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. that there are sufficient environmental planning grounds to justify contravening the standard.

62. Concerning the requirements of cl 4.6(3) of NSLEP (see above at [61]), I will first address whether compliance with the development standard is unreasonable or unnecessary, and I will then consider whether there are sufficient environmental planning grounds to justify contravening the standard.

Is compliance with the height of buildings development standard unreasonable or unnecessary?

63. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (referred to hereafter as ‘Wehbe’) in which the Chief Judge identified the five most frequently used pathways applied to establish whether compliance is unreasonable or unnecessary.

64. These are to establish one, or more, of the following:

1. that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;

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

4. that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. that “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary.”

65. The Applicant’s cl 4.6 written request asserted that compliance with the height standard is unreasonable or unnecessary because the Proposed Development achieves the objectives of the standard, the first of the approaches identified by the Chief Judge in Wehbe.

66. The objectives of the height of buildings development standard in cl 4.3 of NSLEP were identified above at [28(2)]. These are to:

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

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

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

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

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

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

67. The Applicant’s cl 4.6 written request stated that each objective had been satisfactorily addressed within the request, and as a consequence, compliance with the standard was unreasonable or unnecessary.

68. The cl 4.6 written request was the subject of only short expert testimony at the hearing and this was confined to questions concerning the Applicant’s environmental planning grounds that it said justified the proposed development contravening the height of buildings standard. As a consequence, the evidence of the experts was of limited assistance in relation to the Proposed Development’s achievement of the objectives of the standard, notwithstanding its non-compliance with that standard.

69. The Respondent’s closing submissions addressed what it said were shortcomings in relation to the Applicant’s consideration of first, second, fifth and sixth of the standard’s objectives. I will consider the Parties’ submissions in relation to each of these objectives in turn.

70. In relation to the first of the objectives, the Applicant’s cl 4.6 written request:

1. identified that the Subject Site does slope from its frontage to Spruson Street to its rear boundary with a fall of 9.57m, and I agree with the submission of the Respondent that this is a statement of fact rather than a demonstration of achievement of the objective;

2. states that the Proposed Development presents as a 2-storey built form to the street and 3-storey when viewed from the rear, and again, I agree with the observation of the Respondent that, while this may be the case in terms of its presentation, it does not address the matter of whether the development steps to follow the natural gradient of the Subject Site;

3. states that the proposed built form provides the additional accommodation level towards the rear of the Subject Site as afforded by the slope, and once more I agree with the assessment of the Respondent that while the development takes the opportunity at its rear to secure an infill in its volume from the slope rather than to provide a stepped built form as sought by the objective. I acknowledge that the Applicant’s plans include one section (referred to as section C) through the building that hints at a stepped built form. However, that section is through the centrally located and recessed core of the built form, and is not representative of the bulk of the proposed built form. In my assessment, it would require a generous interpretation of the Proposed Development’s built form to suggest that it provided a stepped form that responded to the slope of the Subject Site; and

4. stated that the Proposed Development provides that its upper level is recessed and set “effectively within the roof”, which I do not assess to represent a stepping of the Proposed Development in response to the slope of the Subject Site.

71. As a consequence of the points discussed above at [(1)] to [(4)], I conclude that the Applicant’s cl 4.6 written request does not demonstrate that the Proposed Development has achieved this first objective of the HOB development standard.

72. In relation to the second objective:

1. the Applicant’s cl 4.6 written request:

1. stated that the views available from locations to the east of the Subject Site are obtained from the public domain in Spruson Street and Phillips Street, and from private dwellings to the east of the site, and that the views available from these areas are of the North Sydney Central Business District (CBD) skyline, along the Miller Street ridge, and Walker Street slope to McLaren Street;

2. assessed that the proposed built form would retain the “primary element of these views”, which it said consisted of the varied silhouette of the skyline created by the building towers in the North Sydney CBD;

3. acknowledged that the Proposed Development would, in part, remove views of the lower levels of some of the buildings in the North Sydney CBD, but would not remove “the essential element” of those views which it said was the silhouettes of the buildings in the North Sydney CBD; and

4. assessed that, because the “essential elements” of the views were retained, the views from the public and private domain are shared.

2. the Respondent said that:

1. the Applicant had “impermissibly” sought to redefine this second objective to require consideration of the “essential element of the view” rather than to assess the Proposed Development in terms of the retention of “existing views” or, if appropriate a sharing of those “existing views”;

2. the existing views referred to in the objective should be considered, and assessed, as a whole view incorporating:

1. all that can be seen through, around and over the existing buildings on the Subject Site; and

2. both near field elements, said in the current matter to include vegetation on the Subject Site, and far field elements, said to include the buildings in the North Sydney CBD, including but not limited to the outline of the CBD tower buildings.

3. the Proposed Development would obstruct layers of the existing views leaving only remnants of building silhouettes that would be perceptible only over the Proposed Development, rather than through or around buildings on the Subject Site, as is currently the case;

4. the Proposed Development would not provide for a sharing of views from the public and private domains, as view sharing implied some element of equity, and while the Proposed Development would provide future residents of the Proposed Development with unobstructed and expansive views across the valley to the rear of the Subject Site and across to the North Sydney CBD, these would only be achieved at the expense of existing views from the public and private domains; and

5. the Applicant’s central indent within the Proposed Development did not facilitate the retention or sharing of views, either over or through the Applicant’s proposed built form.

73. Having considered the submissions of the Parties and having undertaken a view of the Subject Site and its surrounds, I am satisfied that the principal views of concern in relation to the potential impacts of the Proposed Development are those from the public domain and over the existing buildings on the Subject Site.

74. While I accept that there will be some view loss impacts in relation to the private domain, overall I assess these to be of a minor level of impact.

75. At the commencement of the proceedings, the Court received a submission from Ms Karen Bell, a resident of a lot located opposite the southern end of the Subject Site. Having considered Ms Bell’s submission, I agree with her that the Proposed Development would have a potential impact on her outlook from her property. However, I am also of the opinion that the view she would enjoy from her residence to the North Sydney CBD post development would represent the bulk of the view that she currently enjoys prior to any potential development on the Subject Site.

76. I note that other residents on the eastern side of Spruson Street did not make representations to the Court in relation to potential view loss. Nevertheless, I have considered the impact of the Proposed Development on these views, and maintain my assessment that the loss of views from those properties to the North Sydney CBD will be of minor impact.

77. Turning to views from the public domain, the Court has previously considered the issue of assessing the impact of developments from the public domain. In Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 (referred to hereafter as ‘Rose Bay Marina’), Moore SC (as he was then), and Adams AC considered the matter of view loss impacts in respect of the public domain, and commented (at [39] to [43]) as follows:

“39 Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23, sets out the planning principle for considering the acceptability of the impact of a proposed development on the views enjoyed from private property in the vicinity of the development. This planning principle was adopted through the collegiate process that has been described on the Court's website for the derivation of such principles.

40 In these proceedings, we discerned the potential for developing a planning principle setting out a process for assessing the acceptability of the impact of private developments on views from the public domain in the vicinity of the development.

41 To this end, we identified the potential for such a planning principle to the advocates for the parties and sought submissions from them about such matters of general principle. These submissions were in addition to their submissions on the specific matters subject of the present proceedings. As we have developed such a planning principle through the broad collegiate basis earlier noted, we express our appreciation for the assistance we received from all three parties on this point. The planning principle set out below, of course, is that of the Court rather than that of any or all of those parties.

42 The framework for a planning principle concerning impacts on views enjoyed from the public domain is broadly consistent with (but not identical to) the matters raised for consideration in Tenacity. The process must account for reasonable development expectations as well as the enjoyment of members of the public of outlooks from public places.

43 The steps for determining the acceptability of the impact on views from the public domain are in two stages - the first factual followed by a second, analytical process.”

78. Following the assessment process laid out in Rose Bay Marina, the Applicant’s cl 4.6 written request has identified that the public domain views requiring consideration in relation to this objective are those from Spruson St and Phillips Street, and I agree with this characterisation of the facts in relation to views.

79. The views from Spruson Street are those currently enjoyed by pedestrians as they travel along either side of that Street, and consist of:

1. on the western side of Spruson Street, slot views of the North Sydney CBD through the Subject Site, and between the Subject Site and the dwelling at 30 Spruson Street. These views would be lost should the Proposed Development be approved; and

2. on the eastern side of Spruson Street, the same slot views identified above at [(1)] as well as views of the North Sydney CBD skyline including elements of the lower portions of the tower structures creating that skyline. The slot views through the site would be lost and the skyline and CBD tower views would be substantially lost should the Proposed Development be approved.

80. The view available from Phillips Street is that across the top of the Subject Site to the North Sydney CBD, including the CBD skyline and portions of the tower structures that create that skyline. The view across the top of the Subject Site would be substantially lost, including a loss of significant tower elements, should the Proposed Development be approved. The Applicant’s cl 4.6 written request acknowledged the loss of view of the lower levels of the CBD towers, but asserted that the silhouettes of the upper portions of the CBD buildings, would be retained as a view.

121. However, my reading of the Respondent Council’s contentions is that it raised a combination of the first and second Fodor questions. Further, I note the submission of the Applicant in which it noted that its expert planner, Mr Barwick, had, in any case, addressed the first three of the Fodor questions within his evidence in the joint expert report of the planners, which had been taken into evidence without objection.

122. I agree with Applicant’s additional submission that the Respondent has raised no issue with respect to internal amenity of the Proposed Development, and so the matter of the fourth question in Fodor need not be addressed.

123. Consequently, I will address each of the first three Fodor questions in turn, before addressing residual matters arising from Stromness.

How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?

125. As noted earlier in this judgment, the Subject Site and lots to its south along Spruson Street, are zoned R3 Medium Density Residential. The Lot to its north on Spruson Street, and lots to its west, on its lower rear side, and east, across Spruson Street, are zoned R2 Low Density Residential.

126. The height and setback controls applicable to residential development in the R2 and R3 zones around the Subject Site are the same. The Subject Site and surrounding lots are not subject to development standard for FSR under the provisions of NSLEP.

127. In relation to the height of buildings, the Subject Site and surrounding R3 and R2 zoned lots are subject to a HOB development standard of 8.5m.

128. The height of the Proposed Development exceeds the height of buildings standard that is applicable on the sites surrounding the Subject Site by 4.02m or some 47.3%.

129. The setback controls are as follows:

1. The front setback must match the alignment of the primary facades of buildings on adjoining properties. Where different setbacks occur, the average of the setbacks of those primary facades is to be used;

2. The rear setback control requires provision of rear building setbacks that match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement; and

3. The side setbacks are required to be:

1. 1st storey (up to 4m) 900mm

2. 2nd storey (up to 7m) 1.5m

3. 3rd storey or higher (greater than 7m) 2.5m

130. The Proposed Development achieves these side setback controls.

131. In submissions, the Applicant noted that Mr Barwick had concluded that the Proposed Development satisfied the first three questions in Fodor, and in relation to this, Mr Barwick had said that “while the building height is greater than the otherwise applicable 8.5m, the relationship of the built form in the streetscape and visual catchment is not anomalous…”.

132. During the hearing, Mr Barwick, further stated that, in his opinion:

1. the boundary between the Subject Site and the property at 30 Spruson Street was the most sensitive transition to be resolved in the design of the Proposed Development;

2. the Proposed Development provided a 7m building separation with the building on 30 Spruson Street at the entry to the Subject Site from Spruson Street, reducing to a 3.75m setback at ground level further into the Subject Site;

3. the setbacks of the Proposed Development successfully modulated the height differentiation between it and the building at 30 Spruson Street; and

4. by virtue of the orientation of the Proposed Development and location of the building on 30 Spruson Street being to its north, no adverse impact arises in relation solar access, and he said that no privacy impacts arise as a consequence of the height of the Proposed Development.

133. In its submissions, the Respondent said that the Proposed Development did not achieve an acceptable relationship with the existing and likely future character of the locality. It also submitted that the built form of the Proposed Development was bulkier when compared to other developments along Spruson Street and in comparison with a compliant development under applicable controls.

134. The Respondent’s expert planner, Mr Donovan, had said within the joint report of the planners and urban designers that the height of the Proposed Development was not compatible with the heights of existing buildings on adjoining properties.

135. During the hearing, Mr Donovan said that in his opinion, the transition between the height of the central ridge of the Proposed Development and the height of the existing building on 30 Spruson Street, was not acceptable, and he noted that, if approved, this change in height as proposed by the Applicant would occur at the transition between the R2 and R3 zones.

136. Having considered the submissions of the Parties and the evidence of the planners:

1. I agree with the opinion of Mr Barwick that the boundary between the Subject Site and the property at 30 Spruson Street is the most sensitive transition to be resolved in the design of the Proposed Development, but disagree with him that the relationship of the built form in the streetscape and visual catchment is not anomalous; and

2. I prefer the submissions of the Respondent, supported by the evidence of Mr Donovan, and agree with them that:

1. the proposed difference in the height of buildings between the Subject Site and 30 Spruson Street, as represented by the exceedance of the 8.5m HOB development standard applicable to both lots by some 4.02m, of some 47%, is excessive in the context of the existing and likely future contexts of this locality, particularly in relation to the adjacent R2 zoned land; and

2. the Proposed Development is not compatible with the heights of existing buildings on adjoining properties, most notably the existing building at 30 Spruson Street, which, as acknowledged by Mr Barwick is the most sensitive transition to be resolved in the design of the Proposed Development.

137. I conclude that the bulk and scale of the Proposed Development as expressed by height is not compatible with what is permissible on surrounding sites and so is not consistent with the first of the Fodor principles.

What is the relevance of the building in which the existing use takes place?

138. The RFBs currently on the subject provides the basis for the Applicant’s enjoyment of existing use rights in relation to a development in the form of a RFB.

139. Within his Fodor judgment, Roseth SC said (at [17]) in relation to this second principle that where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision.

140. The Respondent addressed this second of the Fodor principles in its written submissions, and noted that the Applicant did not claim to have an automatic entitlement to replace the existing building nor did it accept that this principle could operate to prevent the replacement of the existing buildings on the Subject Site with something different or larger.

141. The agreed height dimensions of the buildings currently occupying the Subject Site are provided above at [6], and, as noted by the Applicant, each of these structures exceeds the HOB development standard applicable to the Subject Site under the provisions of cl 4.3 of NSLEP by between 1.57m and 1.76m.

142. The relevance of these characteristics of the existing buildings on the Subject Site is that these heights establish the extent of views that can be enjoyed across the Subject Site from the public domain within Spruson Street and Phillips Street. These views, and the assessment of any potential impact of a proposed development on them, are the subject of various objectives within the zone and HOB development standard in NSLEP (see above at [28(1)] and [28(2)], respectively) and within subsection 1.3.6 of NSDCP concerning views and in particular in relation to view retention from the public domain.

143. The Proposed Development has a proposed height of 12.52m, which is an exceedance of 4.02m of the applicable HOB development standard. This is 2.26m above, or 2.28 times, the maximum exceedance of the HOB development standard of the current buildings on the Subject Site.

144. If the Proposed Development had a height that was consistent with the height of the buildings currently occupying the Subject Site, the views enjoyed across the Subject Site from the public domain in Spruson Street and Phillips Street would be retained, and the impacts of the Proposed Development on those views would not arise.

145. In the circumstances of the Applicant’s amended plans, those views are impacted, and significantly reduced, as a consequence of the increased height of the Proposed Development above the buildings in which the existing use takes place.

146. In the specific circumstances of this appeal, it is my assessment that these views are worthy of retention, and consistent with the submission of the Applicant at the hearing, reflecting the second Fodor principle, while the Applicant enjoys exiting use rights in respect of an RFB development on the Subject Site, there is no automatic entitlement to another building of the same height or even greater height. The Proposed Development, as amended, is, in my assessment, an example of why this should be the case.

147. While not a consideration of my assessment of the Proposed Development in relation to the second of the Fodor principles, I note that the consistency of the proposed development with the objectives of the R3 zone and the HOB development standard would be more reliably achieved.

What are the impacts on adjoining land?

148. I have previously considered the impacts on views of the Proposed Development, and in particular its impacts views available from the public domain in Spruson Street and the lower portion of Phillips St (see above at [72] to [83]).

149. As noted above (at [145] and [146]), those views are impacted, and significantly reduced, as a consequence of the increased height of the Proposed Development above the height of the buildings in which the existing use takes place, and in the specific circumstances of this appeal, it is my assessment that these views are worthy of retention.

150. I also note once again, the remarks I made above at [88(1)(c)] in relation to the height of the Proposed Development when set against the height of the existing dwelling at 30 Spruson Street, and in relation to which I concluded that the Proposed Development does not provide for an acceptable transition to the that dwelling sitting as it does at the interface of an R3 zone and an R2 zone and in circumstances where the HOB development standard applicable to both zones is the same.

Conclusion on the merits assessment of impacts on adjoining lands

151. Having undertaken a merits assessment of the Proposed Development within the framework of the principles identified within Fodor, and in particular the three principles applicable in this appeal, I conclude that:

1. the bulk and scale of the Proposed Development as expressed by height is not compatible with what is permissible on surrounding sites and so is not consistent with the first of the Fodor principles;

2. the buildings in which the existing use takes place, and which have heights exceeding the HOB development standard applicable to the Subject Site, establish the basis for views that can be enjoyed across the Subject Site and that are worth of retention;

3. the Proposed Development will adversely impact on views available from the public domain on Spruson Street and the lower ends of Phillips Street and across the Subject Site, the loss of which would, in my assessment, represent an unacceptable impact of the Proposed Development;

4. the Proposed Development does not provide for an acceptable transition to the dwelling sitting as it does at the interface of an R3 zone and an R2 zone and in circumstances where the HOB development standard applicable to both zones is the same; and

5. on merit, the height of the Proposed Development will have unacceptable impacts.

Is the Proposed Development compliant with relevant controls within NSDCP that are applicable to development on the Subject Site?

152. The application of provisions within a development control plan to the assessment and determination of a development application in which the Applicant enjoys existing use rights have been subject to consideration by the Court, including in the matter of the original Saffioti decision.

153. For convenience I adopt the approach followed in the original Saffioti decision in relation to the application of the provisions of a Development Control Plan (DCP) in the circumstances of an appeal concerning existing use rights, as confirmed at [86] of that appeal.

154. In summary that approach is that no provision of a DCP could be said to derogate from an Applicant’s exiting use rights as a DCP is not an environmental planning instrument for the purposes of the EP&A Act, under s 1.4 of that Act, and so the provisions of a DCP cannot derogate in the manner prescribed in s 4.67(3) of that Act.

155. The Parties in opening identified that the provisions of NSDCP that apply to the Proposed Development are those addressed above at paragraphs [30] to [33].

156. I will consider the compliance of the Proposed Development with each of the controls in NSDCP identified at the commencement of the hearing (as noted above at [32] and [33]).

157. Should the Proposed Development be assessed not to comply with a provision of NSDCP, I will further consider whether, in applying the flexibility required of a consent authority, or the Court on appeal, under the provisions of s 4.15(3A) of the EP&A Act, the Proposed Development is a reasonable alternative solution that achieves the objects of the control for dealing with that aspect of the development.

Subsections 1.2.2 and 1.2.3 of section 1 Part B concerning the maintenance of residential accommodation and affordable housing respectively

158. I am satisfied that the Proposed Development if approved along with the application of the Respondent’s proposed conditions of consent would be compliant with the provisions of these sections of NSDCP.

Subsection 1.3.6 of Section 1 of Part B concerning views

159. As discussed above (at [72]) the Proposed Development will impact on views from the public domain towards the North Sydney CBD. These view impacts will be experienced most notably by pedestrians travelling along Spruson Street, and approaching Spruson Street from Phillips Street.

160. Having undertaken a view of the Subject Site and surrounding areas, and having considered the evidence of the planning and urban design experts in this appeal, I have concluded that the Proposed Development would not comply with provisions P2 (concerning the protection of vistas) and P4 (concerning the consideration of view sharing principles in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (hereafter as ‘Tenacity’)) of this section of NSDCP.

161. I note that in relation to the principles in Tenacity, Roseth SC, as he was then, stated (at [25]) that:

“The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.”

162. In my assessment, the Proposed Development does not propose to share views enjoyed from the public domain over, as well as through, the Subject Site and across to the North Sydney CBD. Rather the Proposed Development would remove those views from the public domain, particularly from a perspective on Spruson Street, but also from the lower end of Phillips Street.

163. As required under s 4.15(3A) of the EP&A Act, I have considered whether the Proposed Development achieves the objects of controls P2 and P4 in subsection 1.3.6 (see above at [33(2)(b)]), and have concluded that the Proposed Development will not protect and enhance opportunities for vistas and views from streets and other public places, and does not encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

164. I base the conclusion above on the fact that the Proposed Development will remove the opportunities for vistas from streets and other public places in the vicinity of the Proposed Development, and this loss of vistas is a direct consequence of its proposed height which exceeds the 8.5m HOB development standard applicable to the Subject Site, and exceeds the heights of the existing buildings on the Subject Site, upon which the Applicant relies for its existing use rights to rebuild a RFB on the site.

165. I conclude that the Proposed Development does not comply with provisions P2 and P4 of subsection 1.3.6 within Part B of NSDCP, and does not provide a reasonable alternative solution that achieves the objects of those provisions.

Subsection 1.4.1 of Section 1 of Part B concerning context

166. Provision P1 of subsection 1.4.1 of Part B of NSDCP requires that proposed developments must be designed to respond to the issues identified in the site analysis and in the relevant area character statement (refer to Part C of NSDCP).

167. The Subject Site falls within the Neutral Bay Planning Area, and the relevant area character statement within Part C of NSDCP applicable to the Subject Site is the statement for the Neutral Neighbourhood within that area.

168. Provision P9(b) of that character statement requires that:

“The following views and vistas are to be preserved and where possible enhanced:

(b) Westleigh Street Lookout (49), Reserve Street Lookout (50), Anderson Street Lookout (51), Phillip Street Lookout (52), Holdsworth Road Lookout (53), Spruson Street Lookout (54).”

169. While there are no ‘lookouts’ per se, that is there is no one specific viewpoint identifiable, on either Phillips Street or Spruson Street, both these streets have ‘outlooks’ that can be enjoyed by an observer looking across the Subject Site towards the North Sydney CBD.

170. As noted above, the existing outlooks to the North Sydney CBD from both Spruson Street and Phillips St, that are obtained by viewing across the top of the existing buildings on the Subject Site, would be impacted by the Proposed Development as a consequence of its proposed height which would exceed both the height of existing buildings on the Subject Site and the HOB development standard applicable to that site.

171. In my assessment these outlooks from Phillips Street and Spruson Street are likely to equate to the Phillips Street and Spruson Street ‘Lookouts’ referred to in provision P9(b) in the Neutral Neighbourhood character statement.

172. However, I am unable to confirm that the terms ‘outlook’ and ‘lookout’, as I have applied them above (at [171]) do equate for the purposes of provision P9(b). Consequently, I am unable to conclude that the Proposed Development is not compliant with provision P9(b), and as further consequence, I am also unable to conclude that the Proposed Development is not compliant with provision P1 of subsection 1.4.1 of NSDCP Part B.

Subsection 1.4.2 of Section 1 of Part B, concerning subdivision patterns

173. Subsection 1.4.2 of NSDCP Part B includes the following two provisions:

“P1 Maintain lot sizes, shape and orientation identified in the relevant area character statement (refer to Part C of the DCP), or if not identified in the relevant area character statement, that are characteristic of the area.

P2 Design and locate buildings to reinforce the characteristic subdivision pattern in the neighbourhood (i.e. walls of buildings are generally built parallel to the property boundaries).”

174. The Proposed Development does not include a proposal for amalgamation of the three lots that together form the Subject Site, and as a consequence, I am satisfied that the Proposed Development is compliant with provision P1 of subsection 1.4.2 as no change to those lots is contemplated.

174. The Neutral Neighbourhood character statement applicable to the Subject Site describes the subdivision pattern in the area as “irregular grid pattern generally aligning with the topography.”

175. I have considered the design of the Proposed Development in the context of provision P2 of subsection 1.4.2 of NSDCP Part B, and in my assessment it does not comply with this provision.

176. The characteristic subdivision pattern of the neighbourhood is represented by the three rectangular lots of the Subject Site that are arranged such that their east to west long axis is aligned with the topographical fall in the land from east to west.

177. It is my assessment that the design of the proposed building does not reinforce this characteristic subdivision pattern because:

1. the single building design of the Proposed Development removes the capacity for an observer to distinguish the underlying subdivision pattern associated with the three lots that form the Subject Site;

2. the design of the Proposed Development consists of two large and dominant accommodation elements connected by a smaller centrally located entry element, that bear little resemblance, in my view to the underlying cadastral arrangements of the subdivision pattern; and

3. the Proposed Development has a dominant long axis that runs in a north south direction and that is perpendicular to, rather than aligned with, the characteristic subdivision pattern, and which does not reinforce the characteristic subdivision pattern in the neighbourhood.

179. Consequently, I conclude that the Proposed Development is not compliant with provision P2 of subsection 1.4.2 within Part B of NSDCP.

180. I have also considered whether the Proposed Development provides a reasonable alternative solution that achieves the objects of provision P2. The relevant objective is O1 which is to ensure that the characteristic subdivision pattern remains apparent, even if lots are subdivided or amalgamated.

181. In the case of the Proposed Development, no subdivision or amalgamation of lots is proposed, and so the question centres on whether the Proposed Development ensures that the characteristic subdivision pattern remains apparent.

182. The Parties provided differing interpretations of this objective as follows:

1. the Applicant said that the Proposed Development achieved the objective because the Applicant did not propose amalgamation of the lots within the Subject Site and so the subdivision pattern remained unaltered and remained apparent through the retained cadastral boundaries within the Subject Site;

2. the Respondent, acknowledged that no amalgamation of the lots within the Subject Site was proposed, but said that:

1. the objective required that the characteristic subdivision pattern should remain apparent, and that this required more than its retention as a cadastral pattern on a map;

2. the subdivision pattern was currently apparent through the presence of three buildings across the Subject Site, which provided that one building was located on each of the three lots constituting the Subject Site; and

3. the replacement of three buildings with one building on the Subject Site would remove the capacity of an observer of the site to distinguish the underlying subdivision pattern of the Subject Site, and so would result in that underlying subdivision pattern not remaining apparent to an observer of the Proposed Development.

183. The Macquarie Dictionary defines the word “apparent” as “capable of being clearly perceived or understood; plain or clear”.

184. The purpose of NSDCP is to supplement NSLEP and provide more detailed provisions to guide future development, such that impacts on the community and environment are minimised, and in my assessment the intent of its provisions should be interpreted in the context of future development.

185. Consequently, I am of the view that the intent of the objective of subsection 1.4.2 should be interpreted in the context of future development, and thus the requirement that future development should ensure that the characteristic subdivision pattern remains apparent, that is it should be clearly perceived or understood; plain or clear.

186. I accept the submission of the Applicant that the characteristic subdivision pattern will continue to exist on the Subject Site. However, I also agree with the Respondent that, notwithstanding the existence of the subdivision arrangements as a continuing cadastral pattern, it would not remain apparent in the context of the future development, which I agree, will remove the capacity of an observer of the Subject site to clearly perceive or understand that pattern in a way that is plain or clear.

187. For these reasons I conclude that the Proposed Development:

1. does not achieve the objective of section 1.4.2 of NSDCP Part B;

2. is not a reasonable alternative solution that achieves the objects of provision P2; and

3. does not comply with the provisions of subsection 1.4.2 of NSDCP Part B.

Subsection 1.4.6 of Section 1 of Part B, concerning setbacks

188. Subsection 1.4.6 requires that development on the Subject Site, which is zoned R3, should comply with the following provisions with respect to setbacks:

1. the front setback must match the alignment of the primary facades of buildings on adjoining properties. Where different setbacks occur, the average of the setbacks of those primary facades is to be used;

2. side setbacks are to comply with the requirements set out in Table B-1.5 (of NSDCP), which are:

1. 1st storey (up to 4m) 900mm

2. 2nd storey (up to 7m) 1.5m

3. 3rd storey or higher (greater than 7m) 2.5m

3. rear building setbacks should match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement.

189. I am satisfied that the Proposed Development, if approved together with the the Respondent’s proposed conditions of consent, would comply with the provisions of section 1.4.6 of Part B within NSDCP.

Subsection 1.4.7 of Section 1 of Part B concerning form, massing and scale

190. The only provision of NSDCP that was the subject of submissions in this appeal was provision P1 of s 1.4.7 within Part B concerning form, massing & scale (see above at [33(2)(g)]).

191. Provision P1 requires that the height of buildings is not to exceed that stipulated within cl 4.3 of NSLEP, and as discussed above, the height of the Proposed Development exceeds the applicable HOB development standard in cl 4.3 of NSLEP by some 4.02m, representing a 47.3% exceedance of that standard.

192. I have already addressed the matter of whether the provisions of cl 4.3 of NSLEP derogates from the incorporated provisions, and have found that they do so derogate. The Proposed Development does not comply with HOB Development Standard in cl 4.3 of NSLEP. I have also found above (at [92]) that the Proposed Development does not achieve the objectives of cl 4.3 of NSLEP. For these reasons I must also find that the Proposed Development does not comply with provision P1 of subsection 1.4.7 of NSDCP Part B.

193. The Proposed Development has a flat roof form which is non-compliant with the provision P7 of subsection 1.4.7 of NSDCP Part B, but which can be approved subject to its compliance with provision P8 of subsection 1.4.7 of NSDCP Part B. This requires:

“P8 Despite P7 above, Council may consider approval of a residential flat buildings with a flat roof, but only where:

(a) the development complies with the height requirements under P1 above; and

(b) where the top-most storey has been setback to comply with a 36 degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4).”

194. The form of the roof has a pitch of 30^o, and so is compliant with the provisions of P8(b). However, the Proposed Development remains in exceedance of the HOB development standard called up by provision P1, and so is also in breach of provision P8(a).

195. As a consequence of my conclusions above at [193] and [194], I also conclude that the Proposed Development is not compliant with provision P1, P7 and P8 of subsection 1.4.7 of NSDCP.

Subsection 1.4.8 of Section 1 of Part B, concerning built form character

196. Provisions P1 and P2 of subsection 1.4.8 of Part B od NSDCP apply in circumstances either:

1. where a building is part of a uniform group of buildings of similar character, or

2. where a building is to be located amongst buildings having a consistent façade,

197. In my assessment, neither of the circumstances that would engage provisions P1 or P2 of subsection 1.4.8 of NSDCP art B exist in relation to the Proposed Development.

198. Provisions P3 of this subsection applies to residential flat buildings and the Proposed Development is such a building type and requires that:

“Building facades should be modulated in plan and elevation and articulated to reduce the appearance of the building’s bulk and to express the elements of the building's architecture.“

199. It is my assessment that the facades of the Proposed Development do modulate in plan and elevation and articulate to reduce, to some degree, the appearance of the building’s bulk, and that they also express the elements of the building's architecture such as the two principal elements of the structure to its north and south.

200. I conclude that the Proposed Development is compliant with the provisions of subsection 1.4.8 of NSDCP.

Subsection 1.4.12 of Section 1 of Part B, concerning colours and materials

201. The provisions of subsection 1.4.12 of NSDCP Part B were identified above at [33(2)(i)]. While the Applicant did not tender a schedule of colours and materials in support of the compliance of the Proposed Development with the provisions of subsection 1.4.12 of NSDCP Part B, it had indicated this was in preparation during the hearing.

202. Provisions P1 of subsection 1.4.12 requires that buildings should use colours, finishes and materials identified in the relevant area character statement (refer to Part C of the DCP), if provided.

203. The area character statement for the Neutral Neighbourhood only identifies colours, finishes and materials that might be used in relation to developments within foreshore areas. As the Proposed Development is located away from any foreshore areas, I assess that provision P1 of subsection 1.4.12 of NSDCP Part B does not require compliance by the Applicant.

Compliance with provisions of NSDCP - summary

204. In summary, the Proposed Development:

1. complies with the following relevant provisions of section 1 of Part B of NSDCP:

1. subsections 1.2.2 and 1.2.3, concerning the maintenance of residential accommodation and affordable housing respectively;

2. subsection 1.4.6, concerning setbacks; and

3. subsection 1.4.8, concerning built form character.

2. does not comply with the following relevant provisions of section 1 of Part B of NSDCP:

1. subsection 1.3.6, concerning views;

2. subsection 1.4.2, concerning subdivision patterns; and

3. subsection 1.4.7, concerning form, massing and scale.

205. I am unable to determine the compliance or otherwise of the Proposed Development with the provisions of subsection 1.4.1 of section 1 of Part B in NSDCP for reasons provided above at [172].

Conclusions

206. As discussed above at [43], and for the reasons identified therein, I have found that the provisions of cl 4.3 of NSLEP do not derogate from the incorporated provisions identified in s 4.67 of the EP&A Act, and that the non-compliance of the Applicant’s Proposed Development can only be approved if the Applicant’s written request to vary that development standard is found to be well founded.

207. I have considered the Applicants’ cl 4.6 written request and, for reasons provided above at [92] and [107]) it has not, in my assessment, demonstrated that:

1. compliance with the height of buildings development standard is unreasonable or unnecessary, as required under the provisions of cl 4.6(3)(a) of NSLEP; and

2. there are sufficient environmental planning grounds to justify contravening the standard as required under cl 4.6(3)(b) of NSLEP.

208. Therefore, I am not satisfied that the matters required to be demonstrated by cl 4.6(3) of NSLEP have been adequately addressed, and (as discussed above at [116]), I am also not satisfied that the Proposed Development is consistent with the objectives for development within the R3 zone in which the development is proposed to be carried out.

209. As satisfaction in relation to the matters provided in cl 4.6(3) is a precondition in order to enliven the Court’s power to grant consent, and as I am also not satisfied that the Proposed Development is consistent with the Subject Site’s R3 zone objectives, I conclude that the Proposed Development is not in the public interest, and, that I do not have jurisdiction to determine this appeal. On this basis the appeal should be dismissed.

210. As noted above at [118], I have also given consideration to the circumstances that might arise if, as contended by the Applicant, I am wrong in relation to the question of derogation and, should, contrary to my findings above (at [48]), it be found subsequently that the provisions of cl 4.3 of NSLEP do derogate from the incorporated provisions. In that event I should then undertake a merits review of Proposed Development in terms of its impacts on adjoining land, particularly in relation to impacts on views.

211. I have undertaken such an assessment and have concluded (for reasons provided above at [151]), that, on merit, the height of the Proposed Development will have unacceptable impacts.

212. I have also considered the compliance of the Proposed Development with relevant provisions of NSDCP which, not being provisions of an environmental planning instrument, cannot derogate from the incorporated provisions, and I have concluded that the Proposed Development does not comply with the following provisions of Part B of NSDCP:

1. subsection 1.3.6, concerning views;

2. subsection 1.4.2, concerning subdivision patterns; and

3. subsection 1.4.7, concerning form, massing and scale.

Orders

213. The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned, with the exception of Exhibits A, G and 1.

…………………………….

Michael Chilcott

Commissioner of the Court

**********

Decision last updated: 29 July 2020