Malass v Strathfield Municipal Council

[2022] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Hearing dates:

10 November 2021; 16-17 & 22 December 2021

Date of orders:

12 May 2022

Decision date:

12 May 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

Proceedings 2021/69569

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021.

(2) The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved.

(3) The appeal is dismissed.

(4) Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused.

(5) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.

Proceedings 2021/69575

The Court orders:

(1) The appeal is dismissed.

(2) Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused.

(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.

Proceedings 2020/291053

The Court orders:

(1) The appeal is dismissed.

(2) The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council.

(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22

Catchwords:

DEVELOPMENT APPLICATION – prospective use of the site for the purposes of a dwelling house, including the use of the building and structures erected on the land and alterations and additions to modify the approved dwelling including remedial works – significant departure from floor space ratio development standard – correct calculation of FSR and gross floor area – amended cl 4.6 written request to vary the floor space ratio (FSR) development standard

BUILDING INFORMATION CERTIFICATE – application to retain ‘unauthorised’ works undertaken not in accordance with existing development consent – final outcome dependent on the outcome of the development application appeal – appeal dismissed

DEVELOPMENT CONTROL ORDER – stop work order made pursuant to s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 – final outcome dependent on the outcome of the development application appeal – appeal dismissed – stop work order will continue to remain in force until a construction certificate is issued

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.18, 8.25

Standard Instrument—Principal Local Environmental Plan

Strathfield Local Environmental Plan 2012, cll 1.2, 2.3, 4.3, 4.4, 4.4C, 4.5, 4.6

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300

Malass v Strathfield Municipal Council [2020] NSWLEC 168

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

Texts Cited:

AS2890.1:2004 Parking facilities – Part 1: Off-street car parking

Building Code of Australia

National Construction Code

Strathfield Consolidated Development Control Plan 2005

Category:

Principal judgment

Parties:

Sarah Malass (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
R White (Applicant)
G Farland (Respondent)

Solicitors:
Project Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2020/291053; 2021/69569; 2021/69575

Judgment

Introduction

1. This judgment concerns three separate, but interrelated Class 1 appeals in respect of a new dwelling constructed on Lot 62 in Deposited Plan 15955, known as 27 Boden Avenue, Strathfield (site).

2. As the building works had not been constructed in accordance with the development consent DA2017/91/1 granted by Strathfield Municipal Council (Council) on 22 November 2017 (the existing consent) the Council issued a development control order under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 14 September 2020, directing the applicant to cease all building work immediately (stop work order).

3. The stop work order was later partially lifted by the Court so that specific work could be carried out, subject to a condition requiring the applicant to lodge a development application (DA) and a building information certificate (BIC) application: Malass v Strathfield Municipal Council [2020] NSWLEC 168 at [57] and [61] per Preston CJ.

4. The applicant lodged her application for a BIC with the Council on 11 December 2020 in relation to certain works undertaken on the site which were not in accordance with the existing development consent. She then lodged a development application (no. 2020.239) on 13 January 2021 seeking consent for:

1. the prospective use of the site for the purpose of a dwelling house including the use of the building and structures that had been erected on the site; and

2. additions and alterations to the dwelling including works required to complete the works that had been undertaken on the site.

5. On 5 March 2021 the Council determined to refuse the DA. The application for a BIC was refused on 9 March 2021.

6. In response to the Council’s determination, the applicant commenced an appeal pursuant to s 8.18 of the EPA Act against the stop work order on 9 October 2020 (DCO proceedings 2020/00291053).

7. On 11 March 2021, the applicant commenced an appeal pursuant to s 8.7 of the EPA Act against the Council’s refusal of the DA (DA proceedings 2021/00069569).

8. On 11 March 2021, the applicant commenced an appeal pursuant to s 8.25 of the EPA Act in relation to the Council’s refusal of the application for a BIC (BIC proceedings 2021/00069575).

The hearing

9. At the request of the parties, the Registrar listed the appeals to be heard consecutively and that the evidence in one, where relevant, be evidence in the other proceedings. At the hearing it was agreed that the DA appeal be dealt with first because if the Court was satisfied, on the evidence, that development consent should be granted, then it necessarily followed that both the BIC and DCO appeals should be allowed.

Decision

10. For the reasons that follow, I have decided to dismiss the DA appeal and the BIC appeal. The DCO is upheld and the appeal is therefore dismissed, and the stop work order continues to remain in effect until a construction certificate is issued by the consent authority.

11. Put simply, I am not satisfied that the contravention of the floor space ratio (FSR) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 (LEP) is justified on the environmental planning grounds relied upon in the applicant’s cl 4.6 written request, prepared by SJB Planning dated 17 December 2021. Therefore, I do not have power to deal with the merits of the DA. The only available course open to me is to dismiss the DA appeal.

12. That said, there is obviously opportunity for further amendment of the design to reduce the FSR to avoid the necessity of a cl 4.6 variation of the standard. This would allow a merit assessment of the amended application and a potential way forward. As the DA before me had been amended 10 times since the commencement of the proceedings, it is unsurprising that the applicant did not agitate further amendment to reduce the basement FSR which is the gravamen of the DA appeal.

Facts

13. The background facts are relatively uncontentious. The following narrative provides context to the position adopted and the detailed submissions made by each of the parties.

14. The site has an area of 766m² and is located within the R2 Low Density Residential zone under the LEP.

15. The objectives of the R2 zone are:

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

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

•  To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

16. The site is not within a conservation area nor proximate to a heritage item. The locality is predominantly low density residential in character and consists of a mix of single and two-storey residential dwellings. Although, as I observed at the site view, it is in a state of transition with the older style houses gradually being replaced with more contemporary style 2-storey residential development.

17. The aerial photographs below, taken from the Statement of Facts and Contentions filed on 14 April 2021 shows the built form over the site in 2016 and as built by the applicant in 2020.

18. The application now proposed, as detailed in the revision J and K (Ex N) and L architectural plans includes the following modifications to the built form:

• Demolition of the rear (western) terrace and cantilevered pergola above.

• Partial demolition of the front of the building at first floor level to achieve compliance with the front setback of 9m.

• Reduced hard paving at the front and rear to achieve increased landscaping. The raised planter at the front of the building (while technically not defined as landscaped area is 1.4m wide and approx. 8m² in area and capable of accommodating planting). If this area were to be included, then the proposal has an increased landscape area overall of 43%.

• Retention of the northern “U” shaped cantilevered beam structure but partial demolition of the slab underneath to create a large hole and a 3m deep planter occupying part of the basement below. This will achieve deep soil landscaped area and opportunity to provide for a tree of up to a maximum mature height of 6m to be located on the northern side and under the overhead roof height.

• The gross floor area (GFA) of the ground floor and first floors of 453m² as calculated by Mr Daintry and 451.9m² as calculated by Mr McDonald (the difference of 1m² being not material to the determination of the matter) (Ex 18 at par 7).

• Amendment to the southern wall of the building to change the top floor, setting this floor in from the southern side of the site so that its setback from the boundary is 2.175m (an increase of 645mm as shown in section 2 on drawing number A201 Rev K) providing a discernible step in the built form and a separate first floor wall when viewed from the south. Thereby improving articulation of that facade and better solar access to the adjoining property to the south. Additional privacy measures included screening of WG.07 as shown in the Rev J plans.

• Partial demolition of the mechanical plant housing structure on the roof lowering it by 200mm to achieve a compliant height (applicant’s position).

• Agreement to retain an accessible basement storey which roughly accords with the western wall of the existing car parking area (thereby requiring a relocation for the pump room and removal of the existing window to the proposed pool). Noting that the area west of the existing vehicle parking area whilst remaining (in terms of external walls) for structural reasons is to be made inaccessible.

19. The latest amendments together with the revised flood assessment (Ex 15) and structural engineering report have largely resolved the Council and objectors’ concerns about flooding, excavation, solar access and privacy. There is now no issue in respect of cl 6.3 of the LEP. It is also accepted that the reduction in the built from at the rear of the property and along the northern boundary, and the proposed articulation and setback of the southern façade are acceptable changes to the design. Nonetheless, the Council maintains that the built form remains excessive. It remains too bulky and out of scale with the existing character of the locality and that desired in the future (Supplementary Planning Report of Brett Daintry dated 21 December 2021 (Ex 22)). Mr Daintry’s evidence is that the excessive bulk and scale of the development is driven by the proposal’s exceedance of the development standards for FSR and height in the LEP. A matter which the applicant disputes based on Mr McDonald’s assessment that the proposal is compliant with both those development standards.

20. While the applicant has lodged two cl 4.6 written requests seeking a variation of the FSR and height standard it contends they are precautionary and not necessary as the standards are not contravened. Whereas the Council submits that the proposed development is non-compliant on both counts and my jurisdiction to deal with the DA rests upon upholding the cl 4.6 written requests to vary the standards.

21. Needless to say, before any consideration of the merits of the application I must deal first with these jurisdictional matters, starting with the correct calculation of the GFA and FSR of the proposal.

What is the correct GFA and FSR calculation for the proposal?

22. Clause 4.4 of the LEP deals with GFA and FSR. The objectives are set out in cl 4.4(1) of the LEP and provide as follows:

(a)  to ensure that dwellings are in keeping with the built form character of the local area,

(b)  to provide consistency in the bulk and scale of new dwellings in residential areas,

(c)  to minimise the impact of new development on the amenity of adjoining properties,

(d)  to minimise the impact of development on heritage conservation areas and heritage items,

(e)  in relation to Strathfield Town Centre—

(i)  to encourage consolidation and a sustainable integrated land use and transport development around key public transport infrastructure, and

(ii)  to provide space for the strategic implementation of economic, social and cultural goals that create an active, lively and people-orientated development,

(f)  in relation to Parramatta Road Corridor—to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor.

23. Clause 4.4C of the LEP prescribes the maximum GFA for a building on a lot of land in the R2 Low Density Residential zone, with an area 700m² -799m² as 0.575:1.

4.4C Exceptions to floor space ratio (Zone R2)

Despite clause 4.4, the maximum floor space ratio for a building on a lot being land in Zone R2 Low Density Residential, with an area specified in Column 1 of the Table to this clause, is the floor space ratio specified opposite that lot in Column 2 of the Table.

Column 1	Column 2
Lot area (m2)	Floor space ratio
< 500	0.65:1
500-599	0.625:1
600-699	0.60:1
700-799	0.575:1
800-899	0.55:1
900-999	0.525:1
≥ 1,000	0.50:1

(Emphasis added)

24. The term “floor space ratio” is defined in the LEP at cl 4.5(2) as being “the ratio of the gross floor area of all buildings within the site to the site area.”

25. The definition of “gross floor area” under the LEP is set out below:

the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement—

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

(Emphasis added)

26. Clause 4.5 sets out the provisions regarding the calculation of FSR and is relevantly reproduced below.

4.5   Calculation of floor space ratio and site area

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

(a)  to define floor space ratio,

(b)  to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to—

(i)  prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii)  prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii)  require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—

(a)  if the proposed development is to be carried out on only one lot, the area of that lot, or

(b)  if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area The following land must be excluded from the site area—

(a)  land on which the proposed development is prohibited, whether under this Plan or any other law,

(b)  community land or a public place (except as provided by subclause (7)).

…

(8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings.

(9) Covenants to prevent “double dipping” When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.

(10) Covenants affect consolidated sites If—

(a)  a covenant of the kind referred to in subclause (9) applies to any land (affected land), and

(b)  proposed development relates to the affected land and other land that together comprise the site of the proposed development,

the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land.

(11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.

27. The planning experts agree on the measurement of the GFA and FSR for the ground floor and first floors of the building based on the Rev K plans dated 17 December 2021. These levels provide a GFA of 434m² and a FSR of 0.56:1.

28. These experts also agree that the “basement” of the building is more than 1m above ground level and therefore is a “storey” for the purposes of the definition. However, that is the extent of their agreement on this issue.

27. Mr McDonald believes that the “basement” level, notwithstanding it being more than 1m above ground level, does not contain any habitable space (GFA), other than 1.5m² associated with a cool room. His evidence is that the remainder of the basement taken up by the 2 car parking spaces, access to the car parking, vehicular and pedestrian (including stairs and lift from this level to the ground floor) and associated vehicle manoeuvring and loading/unloading next to the lift as well as plant room in his assessment is exempt from the definition of GFA and excluded from the calculation of GFA as per items (f), (g) and (h).

28. In forming that view, Mr McDonald relies on the recommended minimum parking dimensions in the Strathfield Development Control Plan 2005 (DCP) Part 1 Provision of Off-street Parking Facilities Appendix A at p333 to contend that the minimum width dimensions are 2.5m-2.7m and that the design of the car parking is compliant. The aisle width and manoeuvring area are also said to be minimum dimensions. There being no reference to spaces being limited to 2.4m, 2.6m or any other width or length. This approach, it is submitted, has been adopted by the Council in its assessment of the car parking basement in recent DAs for nearby developments at 7 Myee Avenue and 31 Boden Avenue (Ex P pp 4-6).

29. The Council adopts a different interpretation of the FSR controls. It contends on the evidence of Mr Daintry that the proposal exceeds the maximum FSR development standard of 0.575:1 by approximately 68m² or 15.6%.

30. As explained in his supplementary report dated 21 December 2021 (Ex 22), Mr Daintry does not accept Mr McDonald’s assessment that all of the basement, but for the cool room (which he calculates to have an area of 3.14m²) falls within the exclusions in (f), (g) and (h) of the GFA definition.

31. Mr Daintry is of the opinion that the reference in (g) of the GFA definition to “car parking to meet any requirements of the consent authority” is a reference to the requirement in Part 1 cl 3.1.1 of the DCP for two parking spaces to be provided behind the building line and the words “…(including access to that car parking)” refers to the access provided by complying with requirements of AS2890 and the National Construction Code (NCC) – Building Code of Australia (BCA). It is only this area that Mr Daintry believes should be excluded from the GFA because the reference in (h) to “any space used for the loading or unloading of goods (including access to it)” only relates to commercial premises and the two required car parking spaces provided in this development already provide space for the loading and unloading of goods normally associated with a house. In support of this, Mr Daintry relies on Appendix C of the DCP which acknowledges that loading and unloading is not a consent authority requirement for a dwelling house.

32. Ultimately, the Council’s position is that a reference to “including access to that car parking” must have some practical limit on what is calculated as necessary for reasonable access when determining the FSR calculation.

33. Annexure 1 of Mr Daintry’s supplementary report (Ex 22) identifies on plan his expert assessment of the path of travel between the parking and vehicle turning areas and the stairs as required by the consent authority. Noting, that he counted the lift in the GFA as this is not “common vertical circulation”, whilst omitting the stair void once at each level. He gave evidence that “the definition of GFA would serve no purpose if you provide 2 parking spaces and then omit the rest of that level because every other portion of that level can be claimed to be ‘access to that car parking’”. Similarly, if vertical access other than “common vertical circulation” were omitted from the GFA of “access to that car parking” then the exclusion of voids above a floor at the level of a storey or storey above again would also serve no purpose (Ex 22, p 4). On that basis, Mr Daintry counted the lift and the stairs once omitting the stair voids once at each level and all areas not required for access.

Figure 1 Annexure 1 in Ex 22

Garage Level GFA

183.76m² (no exclusions)

95.45m² (parking and vehicle access)

13.69m² (pedestrian access)

0.82m² (vertical riser)

36. Mr Daintry differentiated this application from one where it can be argued on a merit assessment that the parking, loading and even habitable rooms wholly within a basement do not add to the bulk and scale of the development. This basement is a third storey to the building offering additional excessive floor space – in his assessment 68m² or 15.6% which adds to bulk and scale of the development which is in conflict with objectives (a), (b) and (c) of the FSR standard (refer to [22]).

37. The Council submitted the decision of Preston CJ of the LEC in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300 at [75]-[89] (Buyozo) is relevant to the characterisation of space for the purposes of the GFA definition. The marking of the basement generally as access to parking and the like does not of itself remove the requirement to consider whether the particular areas fit within the exemptions in the definition. Labels do not suffice. It cannot be the case that the manoeuvring and loading of goods has a multipurpose role for access to the lift and access generally. The Council endorses Mr Daintry’s evidence that there must be some practical limit for access to parking. The path of travel indicated on Mr Daintry’s plan relevantly limits the use to the purpose identified in the definition. Reference needs to be made on the plan expressly identifying the exempt spaces authorised by the definition.

Finding - GFA and FSR

38. For the reasons outlined by the Council, based on the expert evidence of Mr Daintry as summarised, I am satisfied that the development contravenes the FSR development standard in cl 4.4C of the LEP by 68m² or 15.6%.

39. As the definition for GFA is the same in the Ku-ring-gai LEP and the Strathfield LEP (derived from the Standard Instrument—Principal Local Environmental Plan) the reasoning of the Court in Buyozo is on point. It is irrelevant that once goods are unloaded from the designated car spaces that they are carried to the lift which accesses the house in the area endorsed by the applicant. I accept that the plant room (f) and car parking to meet any requirements of the consent authority (including access to that car parking) (g) is exempt for the purposes of this development. I accept Mr Daintry’s view that any space (h) relates to commercial loading and unloading. Therefore, the inquiry demanded by paragraph (g), of the definition of GFA, is to identify the area within the building as a whole used for the car parking (g) to meet the requirements of the consent authority in this case as Mr Daintry says by reference to Part 1 cl 3.1.1 of the SDCP for two parking spaces to be provided behind the building line and “including access to that car parking” refers to the access provided by complying with requirements of AS2890 and the National Construction Code (NCC) – Building Code of Australia (BCA). It is only this area that should be excluded from the GFA because I accept that the reference to (h) relates to commercial premises and the two required parking spaces required by this development already provides sufficient space for loading and unloading of goods associated with the house (Appendix C of the DCP supports this finding).

40. Having set out my reasoning in respect of the GFA and FSR for this development, I now turn to the applicant’s cl 4.6 written request which, it is submitted, addresses this contravention of the standard.

41. For ease of reference cl 4.6 is set out below. It provides an exception to the development standards in the LEP, including the FSR development standard in cl 4.4C, in this case. Clause 4.6 of the LEP relevantly provides:

4.6   Exceptions to development standards

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

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

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

(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 Planning Secretary has been obtained.…

42. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [13].

43. Pursuant to cl 4.6(4)(a), the consent authority, or the Court on appeal exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

(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…

44. The first precondition 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)(a) and (b), being:

(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.

45. As Preston CJ of the LEC in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 stated at [24]:

Only if the consent authority meets these requirements in cl 4.6(3) and (4) will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened.

46. Pursuant to cl 4.6(3) of the LEP, the applicant has submitted a written request prepared by SJB Planning dated 17 December 2021 based on the Rev K plans (Ex P). It seeks to justify the contravention of the FSR development standard based on the Council’s calculation of the breach namely: a total GFA in the order of 508.75m² and a FSR of 0.66:1. An exceedance of approximately 68m² or 15.6% (Ex P par 1.0).

47. As required by cl 4.6(3), the written request seeks to justify the contravention of the FSR development standard by demonstrating 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.

Is compliance with the FSR development standard unreasonable or unnecessary in the circumstances of this case (cl 4.6(3)(a))?

48. The written request submits that compliance with the FSR development standard is unreasonable or unnecessary because:

• The proposed development is consistent with the objectives of the FSR development standard and the objectives of the R2 zone.

• The calculation of the GFA by the Council is limited only to the basement level. The habitable floors of the dwelling house are 18 sqm below the maximum FSR.

• The calculation of GFA and FSR includes floor space contained with the basement of 1.5m². This is not habitable space.

• The variation of the FSR development standard does not contribute to unreasonable impacts in terms of overshadowing, privacy, visual impacts or view loss to adjoining or surrounding properties.

• The variation to the FSR development standard does not result in an increase in the intensity of the development or generate additional traffic or parking demand. The proposal is for a single dwelling while at the same time enhancing the amenity of the occupants.

• The proposed development is generally consistent with the objectives of the suite of planning controls contained in the DCP including front and rear setbacks and protection of solar amenity to neighbours.

• The proposed development complies with the maximum building height.

• The scale of the proposed development is consistent with the anticipated and currently evolving character of the street and locality.

• The proposed development does not result in any adjoining property having an unacceptable impact in terms of overlooking, privacy or overshadowing.

(Ex P, par 3.1.1, p 8)

49. It is further submitted that the underlying objectives or purpose of the standard would not be defeated by the contravention of the standard because the objectives of the clause are still achieved. The written request contends that the following planning outcomes are achieved:

“• A contemporary single dwelling house consistent in character with recent houses in the street and locality;

• A building of 2 habitable above-ground floors that comply with the maximum building height standard of 9.5 metres;

• Maintenance of a DCP [compliant] level of solar access to the private open space of the adjoining property to the south at 29 Boden Avenue, consistent with the controls of SDCP 2005;

• Protection of visual and acoustic privacy to adjoining properties.”

(Ex P par 3.1.2)

Are there sufficient environmental planning grounds to justify contravening the FSR development standard?

50. Before consent can be granted to the proposed development, I must be satisfied, pursuant to cl 4.6(3)(b), that there are sufficient environmental planning grounds to justify the contravention of the FSR development standard.

51. The request outlines the following environmental planning grounds to justify the component of the development which results in the FSR variation:

“• The proposed building is of a scale and character generally anticipated by the planning controls, it is compliant in relation to maximum building height and front and rear setbacks, provides 42% landscaped area and meets the objectives of that control. The proposed variation does not result in any unacceptable detrimental impact or a built form outcome which differs from that which is expected on the site. Therefore, the appropriate contextual fit of the proposed building provides an environmental planning ground to support the proposed variation.

• The proposed variation does not result in any unacceptable adverse impacts of the kind that the FSR control is intended to manage or avoid.

• Taking into account that the exceedance is confined to the basement level and this basement level is being included by the Respondent as it exceeds 1m above ground level. This is a technical breach of the FSR standard.

• Allowing this contravention, which has no unacceptable material adverse impacts, enables the proposed development to better achieve important planning goals. In particular, it promotes the efficient and spatially appropriate use of land as set out as a plan aim in clause 1.2(2)(b) of the SLEP.

• The proposal provides for the housing needs of the community as per the first objective of the R2 zone under clause 2.3 of the SLEP.

• In this particular circumstance, there are sufficient environmental planning grounds to warrant the proposed variation to the FSR standard.”

(Ex P, p 9)

52. The Council rejects the applicant’s justification for the contravention of the standard on environmental planning grounds and the submission that the proposal achieves the objectives of the FSR despite the breach.

53. Relying on Mr Daintry’s supplementary report (Ex 22), as summarised above the Council submits that the variation has unacceptable detrimental planning impacts. The Council submits that the excessive floorspace generates a built form which is different from that expected on the site under the controls. The basement floor, which is a third storey, sits well above other ground floors of any other buildings on the street whether new or existing and is thereby not “in keeping with the built form character of the local area” which is objective (a) of the standard.

54. The car parking spaces are oversized well in excess of the Australian Standard. The manoeuvring area shown on the plan is not required for the purpose of entering the basement in a forward direction and leaving the basement in a forward direction based on the swept path analysis of a B85 vehicle undertaken by Mr Daintry (Tcpt, 17 December 2021, p 45). In short, it submits that there is no proper planning basis to relax the standard on environmental planning grounds and to do so is not in the public interest.

Finding—cl 4.6 written request

55. For the reasons submitted by the Council and based on my observations of the locality I am not satisfied that the applicant’s cl 4.6 written request to vary the FSR development standard in cl 4.4C of the LEP has demonstrated that there are “sufficient environmental planning grounds” to justify the contravening the development standard”.

56. The proposal exceeds the permissible GFA by 68m² some 15.6%. The breach of the standard has adverse environmental consequences for the whole of the development. It is incorrect to submit that the exceedance is confined to the basement level. As I observed and Mr Daintry identified in his evidence the basement storey is visible from the street and adds to the bulk and scale of the development. A third storey is inconsistent with the surrounding built form existing and new. The built form cannot be described as being consistent with the objectives ((a), (b) and (c)) of the standard as the applicant submits. Allowing the contravention does not, as the applicant submits, “enable the proposed development to achieve important planning goals” – whatever that means. Nor am I clear as to how the contravention of the standard promotes “the efficient and spatially appropriate use of land as set out as a plan aim in clause 1.2(2)(b) of the SLEP” (Ex P, p 9).

57. Put simply, the environmental planning grounds relied on by the applicant in her cl 4.6 written request (reproduced at [51]) do no more than seek to promote the benefits of carrying out the development as a whole not to justify the 68m² exceedance of the control (Initial Action at [24]). Notwithstanding the generality of the phrase “environmental planning grounds” as it refers to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) the focus must be on the aspect of the development that contravenes the development standard (Initial Action at [23]). The applicant’s written request falls short of the mark and has not identified sufficient environmental planning grounds to justify the contravention of the standard to allow approval of an extra 68m² GFA in this dwelling house.

55. As the applicant’s written request has not identified sufficient environmental planning grounds to justify the breach, the request has not adequately addressed the matters required to be demonstrated by cl 4.6(3)(b) so the proposed application cannot be upheld.

Conclusion

59. For the above reasons, the DA appeal should be dismissed.

Orders

Proceedings 2021/69569 (DA appeal)

60. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021.

2. The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved.

3. The appeal is dismissed.

4. Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused.

5. The exhibits are returned, except for A, J, K, L, N, O, P, BA 1, 7, 18 and 22.

Proceedings 2021/69575 (BIC appeal)

61. The Court orders:

1. The appeal is dismissed.

2. Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused.

3. The exhibits are returned, except for A, J, K, L, N, O, P, BA 1, 7, 18 and 22.

Proceedings 2020/291053 (DCO appeal)

62. The Court orders:

1. The appeal is dismissed.

2. The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council.

3. The exhibits are returned, except for A, J, K, L, N, O, P, BA 1, 7, 18 and 22.

……………………

S Dixon

Senior Commissioner of the Court

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Decision last updated: 16 May 2022