Maygood Australia Pty Ltd v Willoughby City Council
[2013] NSWLEC 1257
•18 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1257 Hearing dates: 20 and 21 May 2013 Decision date: 18 July 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed.
2. The development application for alterations and additions to an approved residential flat building, including an additional upper level (Level 10), at 31-35 Devonshire Street, Chatswood, is refused.
3. The exhibits, except Exhibit 2, may be returned.
Catchwords: DEVELOPMENT APPLICATION - alterations and additions to an approved residential flat building. Whether SEPP 1 objections to height and floor space ratio are well founded. Weight to be given to Willoughby Local Environmental Plan 2012. Legislation Cited: Environmental Planning and Assessment 1979
State Environmental Planning Policy No 1 - Development Standards
Willoughby Local Environmental Plan 1995
Willoughby Local Environmental Plan 2012Cases Cited: Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132
Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507
Maygood Australia Pty Ltd v Willoughby City Council [2010] NSWLEC 1337
Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289
Wang and Anor v Canterbury City Council [2013] NSWLEC 1098Category: Principal judgment Parties: Maygood Australia Pty Ltd (Applicant)
Willoughby City Council (Respondent)Representation: Mr P Tomasetti SC (Applicant)
Ms M Carpenter (Respondent)
King & Wood Mallesons (Respondent)
Solicitors
DC Balog & Associates (Applicant)
File Number(s): 11251 of 2012
Judgment
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Willoughby City Council (council) of a development application (DA 2012/301) for alterations and additions to an approved residential flat building, including an additional upper level (level 10), at 31-35 Devonshire Street, Chatswood (site).
The key issue in dispute between the parties are whether the objections under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the height and floor space ratio (FSR) standards in Willoughby Local Environmental Plan 1995 (WLEP 1995) are well founded and the weight to be given to Willoughby Local Environmental Plan 2012 (WLEP 2012).
Site and its locality
The site is located on the eastern side of Devonshire Street, Chatswood at its intersection with Claude Street. It consists of three allotments (Lot C DP 964285, Lots D and G Section 17 DP 3226) with a total area of 1988.6sqm. The previous developments on the sites have been demolished and it is currently vacant.
The three allotments are rectangular in shape, except the southern most allotment which is 4.9m deeper than the other allotments. The remainder of the lots are 36.8 m deep. The frontage of the three allotments along Devonshire Street is 52 m. The site falls approximately 3.5 m from the northwest toward the southeast corner of the site.
The site is located at the edge of the Chatswood central business district. It adjoins a nine storey residential flat building (Chamberlay, 23-29 Devonshire Street) to the south and a multi storey council car park to the north. At the rear of the site, to the east, are five single level dwellings, which front onto Claude Street. A childcare centre and single storey semi detached buildings are located to the west, on the opposite side of Devonshire Street. There are residential flat buildings on both sides of Devonshire Street up to its intersection with Johnson Street.
Background and proposal
On 30 December 2008, the Court approved DA 2007/635, for a nine level residential flat building on the site with 42 units and basement parking for 64 cars (Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507). A s 96 application, which amended the dwelling mix and increased the number of units to 47, was approved by the Court in 2010 (Maygood Australia Pty Ltd v Willoughby City Council [2010] NSWLEC 1337). A subsequent s 96 application, which further increased the floor area of Levels 4-8, was approved by council, under delegation (approved development).
The approved Level 9 accommodates 2 x 3 bedroom units (Units 45 and 46) and 2 x 2 bedroom units (Units 44 and 47). The current application would reconfigure the approved level 9 and provide a new Level 10 to accommodate four two storey units, each with three bedrooms and a media room (Units 44, 45, 46 and 47). The living areas on Level 9 would have a double storey height through the provision of internal voids. There is no change to the overall number of units or car spaces to those in the approved development.
Planning controls
The site is zoned 2(d) Residential "D" under WLEP 1995 and the proposal is permissible with consent. Clause 13(3) requires the development to be consistent with one or more of the aims of plan and at least one specific objective of the zone.
The relevant aims and objectives of the WLEP 1995 are:
(b) to allow development at a scale that is sensitive to environmental and planning constraints,
(d) to maintain and enhance the amenity of residential areas, for example, by protecting those areas from inappropriate development, and
(e) to ensure that residential development conforms with the scale and character of the individual residential area
The objectives of the 2(d) zone are:
(a) To consolidate high-rise and high density residential flat buildings in selected and accessible locations, and
(b) To enable the provision of appropriate communal recreation facilities for use by residents.
The site is included in Locality "C" of the 2(d) zone for the purposes of cl 23(e) of WLEP 1995, which permits a maximum FSR of 1.5:1. The objectives for the FSR control are set out in cl 13E as:
(a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land,
(b) to limit traffic generation as a result of that development,
(c) to limit the bulk and scale of that development.
The approved development has FSR of 2.32:1, which exceeds the FSR control in cl 23. The proposal will have an FSR of 2.45:1 and will further exceed the control.
Under cl 24(1)(d) of WLEP 1995 a maximum height limit of nine storeys is permitted in Locality "C" of the 2(d) zone. There are no objectives for the height control in WLEP 1995. The approved development is nine storeys. The proposed development would be ten storeys.
The applicant has submitted SEPP 1 objections as to why strict compliance with the FSR and height standards is unreasonable and unnecessary. The parties disagree on whether the SEPP 1 objections are well founded, which is discussed later in this judgment.
Willoughby Development Control Plan (DCP) applies to the development.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered.
WLEP 2012 commenced on 31 January 2013. Under WLEP 2012 the site is zoned R4-High Density Residential. The allowable FSR under cl 4.4 is 1.7:1 and the height limit under cl 4.3 is 34m.
The parties disagree on the weight to be given to WLEP 2012 based on a different interpretation of the savings provision in cl 1.8A of WLEP 2012, which is discussed below.
Weight to be given to WLEP 2012
Clause 1.8A of WLEP 2012 provides:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
Ms Carpenter, for the council, submits that the development application is to be assessed under WLEP 1995 and that no weight should be given to WLEP 2012 by virtue of cl 1.8A in WLEP 2012. She relies on the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302, where Dixon C considered an identical provision and found at [20] and [21]:
The transitional provision in cl1.8A requires the LEP 2012 to be taken into consideration under s 79C(I) of the Act as if the Plan had been made but not commenced. The words in the savings clause under review in this case are different to those considered by the Court of Appeal in Terrace Towers. Therefore, the case at hand can be distinguished from reasoning of the Court of Appeal in Terrace Towers. I accept the applicant's submission that there must have been a purpose in the drafter of the clause removing the words "had been exhibited" from the final Plan as made. If I accept the Council's interpretation of the clause then it is irrelevant that the words "had been exhibited" were removed from the final version of cl1.8A.
The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.
Mr Tomasetti SC, for the applicant submits that WLEP 2012 is "imminent and certain" as it has been made and therefore should be given "determinative weight". He relies on the numerous authorities to support this submission, including the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 where at [5], Spigelman CJ referred to the line of authority in the Court outlined by Mason P at [46]:
to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.
......
Further, Mason P at [59] said:
.....The transitional provisions require LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made". This cannot be read as a self-referential, self-defeating indication that only the transitional provision itself is to be taken into account. The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development.
Mr Tomasetti SC made further submissions in response to the decision in Alamdo. He submits that although WLEP 2012 "is notionally to be regarded as not commenced, it otherwise existed in fact and is to be regarded therefore as a draft instrument the provisions of which are to be given appropriate weight".
Further, Mr Tomasetti SC submits that "In the task of statutory construction, absurd results are to be avoided" and refers to Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132, where Sheahan J at [24] to [30] states:
24 The Interpretation Act 1987 s 33 provides:
"In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
25 As a species of delegated legislation, statutory instruments such as LEPs and REPs fall for interpretation in accordance with the general principles of statutory interpretation, looking at the language, context, policy, intention and purpose of all the instrument's provisions. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69] and [78]; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, at [36], [46], and [63]; Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731, at [35]-[36].
26 The court must look to the intention of the draftsman, and avoid irrationality and injustice in its construction of the instrument.
27 In Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, at 350, Gibbs J said:
"... where two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust".
28 In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297, at 320, Mason & Wilson JJ said:
"On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
29 In R v Young (1999) 46 NSWLR 681, at 687-688, Spigelman CJ observed (citations omitted):
"[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction."
30 In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306, Tobias JA said, at [52]:
It is well established that the rules of statutory construction permit the avoidance of an irrational result of a particular construction unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson".
I note that the Court of Appeal did not question the principles in Abret (see Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107).
Mr Tomasetti SC submits that in applying these principles, the "absurd result" in this case is:
if the 2012 instrument had not commenced it would be treated as a draft under s79C(1)(a)(ii) and be specifically relevant. Yet having actually commenced it then, in accordance with Alamdo, is not legally relevant. This is absurd when as a matter of relevance a draft instrument having commenced is obviously more certain and imminent than one that has not in fact commenced. It is also contrary to the "line of authority" referred to by the Chief Justice in Terrace Towers at [5] and the" stream of case law" referred to by the President at [44].
The change in the wording of the savings clause makes no substantive change to the long line of cases referred to in Terrace Towers.
Findings
I accept the reasoning by Dixon C in Alamdo, which has been followed by other decisions of the Court, including decisions made after this hearing (see Moscaritolo v The Hills Shire Council [2013] NSWLEC 1014, Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070, Greenwood v Warringah Council [2013] NSWLEC 1119 and Wang and Anor v Canterbury City Council [2013] NSWLEC 1098)
The savings clause in WLEP 2012 is identical to the clause considered in Alamdo but is different to that considered in Terrace Towers in that the requirement to determine the application "as if the plan had been exhibited but not been made" has been removed and replaced with the requirement that the application "must be determined as if this plan had not commenced". While there would appear to be a lack of logic in allowing the exhibited plan to be considered under s 79C(1)(a)(ii) prior to the making of the Plan, but not to do so after it has commenced, I accept that Alamdo is the correct interpretation of the words in cl1.8A. There is no reason to indicate that the outcome that results from the application of cl 1.8A was not intended by the draughtsperson.
In accepting that the Court has no authority to take WLEP 2012 into account in its assessment of the development application under s 79C (1)(a)(i) or (ii), I note that in Alamdo at [7] and [12], the applicant accepted that the LEP is relevant as an aspect of the public interest under s 79C(1)(e), but that "by its terms cl 1.8A speaks against the instrument operating to prohibit the present application or be of determinative weight". Dixon C at [21] found
21 Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.
Alamdo was discussed discussed further in Wang where at [11] to [13] Moore SC said:
11 She dealt with the difference in the legal position arising, in her view, as a consequence of the new wording of the transitional provision compared to the position that had been adopted by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289. My colleague held in Alamdo that, notwithstanding the provisions of cl 1.8A, for the purposes of s 79C1)(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, the new Local Environmental Plan, as a consequence of cl 1.8A should be regarded as not existing, in effect.
12 It was also put to her in those proceedings [as has been put to me in these proceedings by Mr Jackson], that, notwithstanding her conclusion with respect to s 79C(1)(a) that the provisions of that 2012 Local Environmental Plan were required to be considered as a matter of the public interest - that arising under s 79C(1)(e).
13 I am satisfied that is a correct and appropriate interpretation. However, that question was also dealt with by Dixon C in Alamdo, where she held that, notwithstanding the failure to engage the new Local Environmental Plan by virtue of s 79C(1)(a), s 79C(e) was engaged to call up the LEP for consideration. She held that that consideration immediately brought into play the terms of cl 1.8A of the LEP - with the LEP having been imported by 79C(1)(e), it automatically excluded itself from further consideration as a consequence of clause 1.8A.
For the above reasons, the development application must be determined as if WLEP 2012 had not commenced and the relevant planning instrument remains WLEP 1995. The development application does not comply with the FSR and Height standards in WLEP 1995. The experts have agreed that in considering the SEPP 1 objections and the objectives of these standards, it is relevant to consider the existing and likely future context of the site. In determining the likely future context, the experts have been guided by WLEP 2012. While WLEP 2012 is not relevant to the development application on the site, I accept that it can be considered in determining whether strict compliance with the FSR and Height standards in WLEP 1995 would be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and consequently whether the SEPP 1 objections are well founded. WLEP 2012 provides guidance as to the development likely to occur through future development applications on other land and to the likely future character in the locality of the site.
Evidence
The Court heard planning and urban design evidence from Mr R N Dickson, for the applicant, and Ms M D Laidlaw, for the council.
The experts agree that the FSR of the approved development is 2.32:1. The additional floor space to be added to the approved development is 271.18sqm (based on measuring gross floor area (GFA) under WLEP 1995), which will result in a FSR of 2.45:1. The approved and proposed height to the top of the Level 9 balustrade is RL118.7m. The approved height of the roof of level 9 is RL 118.7m and the approved overall height to the top of the plant room is RL120m (based on Ms Laidlaw) or 120.55m (based on Mr Dickson). The proposed additions will have a maximum overall height of RL121.63m.
The key issue in dispute between the experts was whether the proposed additions meet the objectives for the FSR and height control in WLEP 1995 and whether the SEPP 1 objection is well founded. The objectives of the FSR standard are stated in cl 13E of WLEP 1995. The experts generally agree that as the proposal does not increase the number of units or car spaces, objectives (a) and (b) of cl13E are met. They disagree whether the proposal limits bulk and scale and meets objective (c).
The objectives for height are not provided in WLEP 1995. In her oral evidence, Ms Laidlaw stated that the objectives of the height control are to limit impacts such as overshadowing, privacy and views and to be compatible with the existing and desired future character. Mr Dixon referred also to the objectives for the zone as being relevant.
In determining whether the development meets the objective of the FSR standard to limit the bulk and scale and the objective of the height standard of compatibility, the experts considered the existing and likely future character of the area. As discussed above, I accept that WLEP 2012 provides guidance in determining the likely future character.
Existing character
Ms Laidlaw and Mr Dickson agree that the predominant building height of residential flat buildings in the locality is to a maximum of 9 storeys. The other residential flat buildings in Devonshire Street have generally consistent street wall heights of RL 116.4m (23-29 Devonshire Street), RL 119.82m (21 Devonshire Street) and RL 118.27m (16-22 Devonshire Street). They have plant rooms above, which are generally not visible form the street other than 21 Devonshire Street. Based on Mr Dickson's visual assessment, the FSR of these buildings is up to 2:1. Although, Ms Laidlaw understands that they are in the order of 1.5:1 to 1.7:1.
Mr Dickson considers that the approved developments at 38 Albert Avenue (DA-2010/367) with a FSR of 3.92:1 and 41-45 Claude Street with a FSR of 2.14:1 form part of the existing character of the site.
Future character
Ms Laidlaw and Mr Dickson agree that:
Devonshire Street is a well established streetscape that is unlikely to undergo change in terms of the character of its built form in the short to medium time frame, noting that the relevant planning controls do not provide for any increase in development opportunity and that the streetscape is developed with well established strata titled buildings. Accordingly, the area has a low susceptibility to change. ND notes that the exception to this is the Council buildings immediately across from the subject site which have susceptibility to change.
In oral evidence, the experts reviewed the planning control under WLEP 2012 for the car park and the childcare centre and buildings on the opposite side of Devonshire Street that would be zoned B4 under WLEP 2012 with a maximum height of 34m and no FSR control. The adjoining land to the east would be in the R4 zone, with the same height (34m) and FSR (1.7:1) controls as the site. The experts recognised that there would be potential for these site to be redeveloped.
Does the proposal meet the objectives of the FSR and Height standards?
Ms Laidlaw stated that in approving the original development above the FSR in WLEP 1995, the Court required Level 9 to be set back from the edges of Level 8 so as to be less visible and to appear as a more floating element which mitigated the visual bulk of the building. The proposed addition will appear as an unresolved add-on with no particular reference to the form of the development below. It will significantly add to the visual bulk of the proposal without the mitigating effect achieved through securing a recess of the uppermost element proportionate to its height. In Ms Laidlaw's opinion, the additional bulk does not meet the objectives of the FSR control to limit the bulk and scale of development.
Ms Laidlaw considered the development does not provide a height that is compatible with its existing or likely future context. The existing context is predominantly residential flat buildings that are 9 storeys, which are unlikely to be redeveloped. The approved development respects this context, whereas the proposed additional storey will be partially visible and higher than other buildings in the streetscape.
The development will increase overshadowing of Chamberlay, particularly Level 5. While Ms Laidlaw acknowledges that the units will still receive three hours solar access in midwinter and therefore meet the requirements of the DCP, she considered that as the additional overshadowing results from the non complying height and the roof overhang, it is an unreasonable impact. She agreed that the overshadowing could be reduced by cutting back the roof overhang but considered that this would impact on the integrity of the design.
In Ms Laidlaw's opinion, the proposal does not meet the objective of the height control in WLEP 1995. The SEPP 1 objection is therefore not well founded.
Mr Dickson, considered that the changes to the perceived bulk of the building would be "negligible" which he sought to illustrate through photomontages in his Statement of Evidence that compared the approved development with the proposal. The additions are well designed and provide a "very suitable roof top architectural expression to the building". The proposal remains consistent with the bulk and scale of other buildings in the immediate streetscape and wider locality and meets the objectives of the FSR control and the SEPP 1 objection is well founded.
Similarly, the setback of level 10 reduces its visibility and the development maintains its consistency with the height of other buildings in the street. Mr Dickson noted that there are buildings of greater height and bulk in the visual catchment of the site and that this will continue in the future as higher development is likely to occur on the council land in Devonshire Street and in the wider area.
Mr Dickson, considered the additional overshadowing impact to be acceptable as the units in Chamberlay would still receive three hours solar access in midwinter. Although he considered it to be unnecessary, he stated that the additional overshadowing could be eliminated by the reduction in the roof overhang and that this would not impact on the design integrity.
In Mr Dickson's opinion, the proposal meets the objective of the height control in WLWP 1995. The SEPP 1 objection is therefore well founded.
Findings
Under cl 23(e) of WLEP 1995, the maximum FSR for Locality "C" of the 2(d) zone is 1.5:1. The original consent exceeded the standard with an FSR of 2.137:1. Following subsequent s 96 amendments, the FSR of the approved development is 2.32:1. The current application seeks approval for an FSR of 2.45:1, which the experts agree represents an increase over the approved development of 271.18sqm. Consequently, the current application requires a SEPP 1 objection to be upheld.
Under cl 24(1)(d) of WLEP 1995, a maximum height limit of nine storeys is permitted in Locality "C" of the 2(d) zone. The original consent complied with this requirement. However, the current application is ten storeys and consequently requires a SEPP 1 objection to be upheld.
Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states at [39] to [40] that the Court must be satisfied of the following three matters:
38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.
39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:
"(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and coordination of the orderly and economic use and development of land."
40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:
"(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument".
At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish 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...
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
His Honour reviews other ways to establish that a standard is unreasonable or unnecessary which include at [47] that "the development standard has been virtually abandoned or destroyed by Council's own actions in granting consents departing from the standard".
Mr Tomasetti SC submits that the FSR control in cl 23(e) of WLEP 1995 has been abandoned as other developments already exceed the control. However, there is no evidence to support this submission other than approvals on other sites that have occurred in different zones with different controls and the visual assessment of the FSR of nearby residential flat buildings, which were approved prior to the current controls. Mr Tomasetti also relies on the height control of 34m in WLEP 2012 as reason that the storey control in WLEP 1995 is no longer relevant. For the reasons outlined earlier, WLEP 2012 cannot be considered in the determination of the development application.
The SEPP 1 objection for the original application, found that compliance with the FSR standard was unreasonable and unnecessary on the basis that it achieved the objectives of cl 13E. In relation to objective (c) "to limit the bulk and scale..." the SEPP 1 stated:
bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. It is assumed that the purpose of limiting the bulk and scale of the development is to provide uniformity, in other words to maintain the established character of the area.
In considering the scale of the building, The SEPP 1 objection for the original application concluded that the height (RL118.7) and façade frontage (31.2m) of the proposal are similar to that of other buildings that establish the character of the area and therefore "is appropriate and sits comfortably within the nearby buildings". In Maygood the Court accepted the applicant's justification as to why objective (c) of cl 13E of WLEP 1995 was met.
The applicant has submitted SEPP 1 objections to the FSR and Height standards in WLEP 1995 for the current application. The objections state that non compliance with these standards is unreasonable and unnecessary for the following reasons:
a) It is to be replaced by WLEP2012 which is more relevant to present day need and planning standard, having reached the consensus of Council, general public through public exhibitions and State Department of Planning and Infrastructure.
b) The design has been considered and approved by LEC twice in December 2008 and Section 96 approval in 2010. The proposed amendment to the 4 top floor units is still in keeping with the parameters and reasons in previous SEPP l Statement and Court decision.
c) The objective of the WLEP95 standard is achieved, notwithstanding the non-compliance.
d) The design complies with RFDC, WDCP and other planning instruments.
e) The proposed amendment is minor and fully in line with the LEC approved design.
f) It also conforms to the requirement of WLEP2012:- height is well under the allowable maximum of 34M and increase of FSR 0.1 is half of anticipated allowable increase of 0.2.
g) The overall design outcome and architectural character remains primarily the same, refer the photomontages. It can be said that there is little discernible difference of design outcome and objective.
h) The amended design fits well in the context of the surrounding buildings and environment. Existing surrounding buildings in locality C were built when the relevant control was FSR 2:1.
i) The proposed amendment does not have adverse impact to the environment and previous SEPP l Statement (Attachment "A") still applies to various aspects of the planning objectives.
j) The Objection is site specific and would not affect the operation of Council planning instruments relating to other sites.
k) The objectives of the WLEP95 clause 13E are satisfied in terms of the environmental capacity, traffic generation, bulk and scale.
I) The objectives, aims and intent stated in Council's instruments are about controlling and managing adverse environmental impacts, context and scale, adequate provision of open space and landscape, high levels of residential amenity, traffic generation and encouragement of public transport use, urban consolidation objectives and increased residential density in accessible locations, better use of existing infrastructure in Chatswood Town Centre, and the intent of a performance based approach to the achievement of the desired outcomes. These aims and objectives are achieved notwithstanding the numerical non-compliance.
The experts disagree on whether the SEPP1 objection is well founded and also whether the objectives of the FSR and height standard are met. The key disagreement is whether the height, bulk and scale of the development fits into the existing and likely future context. This difference of opinion centred principally on the increase in height (number of storeys) and the reduction in the southern setback of level 9.
I accept Ms Laidlaw's evidence that these changes will add to the visual bulk of the building and impact on the scale relationship of the development with nearby buildings. Despite the non compliance with the FSR standard, the original development met objective (c) of the FSR standard on the basis that its bulk and scale were compatible with nearby buildings. This compatibility largely relied on the parapet of level 8 (RL116m) with a recessed level 9 (RL118.7m). While level 9 was visible from the street, it appeared as a "floating element" and did not add materially to the overall bulk of the building. Similarly, the dominant parapet and the recessive nature of level 9 were compatible with the heights and street frontages of nearby buildings, which form the existing context.
While the council car park and land opposite the site may be developed with larger buildings under WLEP 2012, the predominant context into which the proposal must fit, is that established by the predominate built form of nearby buildings which are unlikely to be redeveloped.
The additional height and FSR will add to the bulk of the building and will alter its scale relationship with nearby buildings. From the photomontages, it is clear that the proposed Level 9 and 10 will be partially visible from the street and will not appear as floating, recessive elements but as additional storeys, which occupy most of the street frontage and add bulk to the building. The bulk of the proposal will appear greater than that of the nearby buildings. The proposal therefore does not limit the bulk and scale of the development and does not meet objective (c) of cl 13E of WLEP 1995. The proposal will appear as a ten storey building which is greater than the number of storeys of nearby buildings and therefore does not meet the objective of the height control in cl 24(1)(d) of WLEP 1995. The SEPP 1 objections to the FSR and Height standards in WLEP 1995 are therefore not well founded and for this reason the application must fail.
In addition, the increased height and bulk, principally from the roof overhang, will increase overshadowing of units in Chamberlay. While the solar access would still comply with the requirements of the DCP, I accept Ms Laidlaw's opinion that it is not reasonable to reduce the amenity of these units through the loss of sunlight, which results from a non complying element of the proposal.
The proposed conditions to setback levels 9 and 10 from the southern boundary and to cut back the roof overhang would reduce the bulk of the proposal and the overshadowing impact. However, the proposal would remain 10 storeys and not meet the objectives of the height control in WLEP 1995.
Orders
1. The appeal is dismissed.
2. The development application for alterations and additions to an approved residential flat building, including an additional upper level (Level 10), at 31-35 Devonshire Street, Chatswood, is refused.
3. The exhibits, except Exhibit 2, may be returned.
Annelise Tuor
Commissioner of the Court
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Decision last updated: 14 January 2014
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