Maygood Australia Pty Ltd v Willoughby City Council (No 2)
[2013] NSWLEC 1205
•30 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Maygood Australia Pty Ltd v Willoughby City Council (No 2) [2013] NSWLEC 1205 Hearing dates: Written submissions filed on 23 September 2013 and written submissions in reply filed on 24 September 2013. Decision date: 30 October 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. Remitted to consider an error of law. Whether SEPP 1 objections to height and floor space ratio are well founded. 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: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507
Maygood Australia Pty Ltd v Willoughby City Council [2010] NSWLEC 1337
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289
Wehbe v Pittwater Council [2007] NSWLEC 827,Category: Principal judgment Parties: Maygood Australia Pty Ltd (Applicant)
Willoughby City Council (Respondent)Representation: Solicitors
King & Wood Mallesons (Respondent)
DC Balog & Associates (Applicant)
File Number(s): 11251 of 2012
Judgment
Commissioner: This matter comes before the Court in response to the orders made by Pepper J on 3 September 2013, following an appeal under s56A of the Land and Environment Court Act 1979 (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142). The appeal was against the Court's refusal of a development application DA 2012/301 (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127) (the Maygood appeal) 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 Maygood appeal
In the Maygood appeal, I stated (at [2]) that the key issues in dispute between the parties were whether the objections under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the height (cl 24(1)(d)) and floor space ratio (FSR) (cl 23(e)) 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).
Under WLEP1995 the site is zoned 2(d) Residential "D" and the proposal is permissible with consent. 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. 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.
WLEP 2012 commenced on 31 January 2012, after the development application had been lodged. WLEP 2012 includes a savings provision (cl 1.8A) which 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.
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 approved development has FSR of 2.32:1. The proposal would have an FSR of 2.45:1. The approved development is nine storeys. The proposed development would be ten storeys.
The applicant submitted SEPP 1 objections to the height and FSR controls in LEP 1995.
In Maygood, I followed the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 and other decisions of the Court that no weight should be given to WLEP 2012 because the application of cl 1.8 of that LEP deemed it irrelevant. However, I also concluded (at [29] that:
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.
For the reasons in my judgement, I refused the application on the basis that the SEPP 1 objections were not well founded (at [59]-[60]).
The s 56A Appeal
The grounds of the s 56 Appeal were:
The decision of the Court below was vitiated by an error of law which was material in that the Court misconstrued the provisions of CI1.8A of the Willoughby LEP 2012 ("the LEP");
The Court followed the decisions of the Court in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302, 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) which decisions each concern the construction of clauses like cl1.8A of the LEP. Each of those decisions are wrong.
As a result of the misconstruction of cl1.8A of the LEP the Court fell into legal error in that it did not consider a material relevant matter to the determination of the development application namely the provisions of the LEP (other than cl 1.8A), the fact that the LEP was both certain and imminent and that it increased the permissible height of development on the land the subject of the appeal. The proposed development was well within the height limit permitted by the LEP. The relevant principles are found in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289.
Pepper J disagreed with the reasoning in Almando and therefore my decision in Maygood. Her Honour held (at [28]-[37]):
The 2012 LEC Was a Mandatory Relevant Consideration
28. I must respectfully disagree with the Commissioner's reasoning. First, the words "as if this Plan had not commenced" are not to be equated with, as has occurred, the words 'as if this Plan had not existed'. No such proscription is mandated by the change in terminology and there is no warrant for construing cl 1.8A in this manner having regard to the text of the clause or when proper consideration is given to its scope and purpose.
29 On the contrary, cl 1.8A is a deeming provision that does no more than fictitiously set the 2012 LEP back to a point in time immediately before its commencement. At that moment the 2012 LEP is a "proposed instrument" and must be considered pursuant to s 79C(l)(a)(ii) of the EPAA. In other words, the LEP becomes a mandatory relevant consideration under that Act, assuming, of course, that the proposed instrument has been the subject of public consultation and proper notification to the consent authority, and failure to take it into account will give rise to jurisdictional error. In the present case it was not an issue that the 2012 LEP had been the subject of public consultation and that the council had been notified of it.
30 Second, no legislative intention has been evinced to abrogate the reasoning in Terrace Towers and the "stream of authorities" both preceding and succeeding that decision by the adoption of the words "not commenced" in cl 1.8A. On the contrary, the different wording harmonises the savings provision with the community consultation requirements under s 56(2)(c) of the EPAA consequent upon the removal of the requirement for public exhibition in the former s 66 of that Act. As Maygood submitted, it would have been anomalous to continue to refer to the term "exhibition" in cl 1.8A after the requirement for and reference to "exhibition" had been removed from the Act.
31 In my opinion, if the wording in cl 6(2) of the 2000 LEP ("but had not been made") in Terrace Towers was insufficient to permit a consent authority to shut its eyes to otherwise relevant provisions of a draft planning instrument, it is even less likely that a draft instrument that has been made but has "not commenced" can be ignored. As the Court in Terrace Towers observed while rejecting a similar argument to the effect that none of the 2000 LEP could be taken into account (at [59]):
59 ...The argument was that none of LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision or the stream of case law forming the background against which its terms are properly to be construed. The transitional provision requires 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. This is what Cowdroy] did when he had regard to the "otherwise applicable" provisions of LEP 2000 (at [17]).
32 Third, the council's construction of cl 1.8A of the 2012 LEP would effectively give either that clause, or s 79C(1) (a) (ii) of the EPAA, no work to do. A construction of this kind should not be easily adopted (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [97] and the authorities cited thereat).
33 Fourth, as Tuor C herself noted (at [26]), the construction of cl 1.8A contended for by the council results in absurdity. On the one hand, if by reason of cl 1.8A, the 2012 LEP was not a proposed instrument for the purpose of s 79C(l)(a)(ii) of the EPAA because it had in fact commenced and was therefore an irrelevant consideration; but on the other hand, if as a matter of fact the LEP had not commenced, then it would be a mandatory consideration under 79C(l)(a)(ii). Thus, an instrument that had commenced would be deemed less relevant than an instrument that had not. Given this irrationality of operation, it may be concluded that it was not the intention of the drafters that the clause operate in this manner. Although it must be recalled that planning instruments are not always drafted with pellucid clarity or a keen eye to taxonomy [Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 331), nevertheless "a court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense" [Hall v Jones (1942) 42 SR (NSW) 203 at 208 per Jordan CJ; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304 and 320 and Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132 at [26] [30] and the authorities cited thereat).
34 Fifth, even if the 2012 LEP is not a proposed instrument to be considered under s 79C(l)(a)(ii), it is, in my opinion, given that the instrument had commenced, a matter that was relevant to "the public interest", and therefore, was necessary to consider pursuant to s 79C(l)(e) of the EPAA. The breadth of matters that can be taken into account as an element of "the public interest" is considerable [Village McEvoy at [38]-[40]) and it may be expected that only the clearest and most unequivocal of words in a planning instrument would displace the statutory operation of s 79C(l)(e) of the EPAA.
35 Alternatively, even if the 2012 LEP is not a mandatory consideration under s 79C of the EPAA, this does not mean that a consent authority is precluded from considering it as a draft or final planning instrument. It is still a matter to which the consent authority may nevertheless, absent clear language or necessary implication to this effect, have regard in making its determination. As the Court stated in Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 (at [22] and [25]):
22. These objects, in my opinion, can only be given full effect by not adopting a narrow construction of s 79C(1). A narrow construction would exclude from consideration the objects of the Act. For example, one of the objects of the Act is to encourage ecologically sustainable development (s 5(a)(vii)). If s 79C(1) were to be regarded as an exclusive list of relevant considerations it would result in the exclusion from consideration of an important objective of the Act. I am thus inclined to the view that s 79C(1) does not exclude the kind of considerations to which Mahoney JA referred in BP Australia Ltd v Campbelltown City Council. That is to say, I am inclined to the view that s 79C(1) sets out the matters that must be taken into consideration, but does not exclude from consideration other matters not included in those listed and which may be of relevance to the particular development application and which furthers the objects of the Act. The view of Cripps J in Ian Turner Partners is clearly obiter and I do not regard myself as bound by it.
....
25. I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in sub-paras (i), (ii), (vi) and possibly (vii) of para (a) of those objects. In taking those matters into consideration the Commissioner made no error of law.
36 Similarly in Terrace Towers, the Court of Appeal observed (at [81]):
81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 4244. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC 265; (2001) 119 LGERA 231 at 235).
37 It therefore follows that insofar as the Commissioner improperly construed cl 1.8A of the 2012 LEP, and therefore, failed to take it into account in determining whether to grant development consent (other than in respect of dealing with the SEPP 1 objections), the appeal must be allowed.
The Orders of Pepper J relevantly included that:
1. the appeal is allowed;
2. the decision and orders of Tuor C made on 18 July 2013 are set aside;
3. The matter is remitted to Tuor C ...for determination in accordance with the decision of the Court;
The remitted appeal
The parties have filed written submissions and submissions in reply in the remitted appeal. The parties did not file additional evidence or wish to be heard, unless required by the Court.
Applicant's submissions
The applicant refers to the decision in Maygood, where (at [32]) I state:
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 applicant submits that:
the key issues in dispute ought to have centred upon the proposed development and its acceptability having regard to WLEP 2013. WLEP 2013 has now been made and WLEP 1995 has been repealed. Accordingly it is absurd, illogical and a nonsense to assess the development against an instrument the provisions of which are no longer in force and effect.
The key issue ought to have been whether the proposed additions meet the objectives for the FSR and height control in WLEP 2013 and whether the SEPP 1 objections in the light of that instrument were well founded.
With respect to height there can simply (other than)sic be no argument that the SEPP 1 Objection was well founded. The development complied with the new height controls and indeed is a full 3 metres below the permitted maximum height. To focus on whether the proposed height met the objectives of a repealed planning instrument is illogical. Put another way the provisions of the WLEP 1995 should carry little weight in the assessment of the development application.
The approved development has FSR of 2.32. The proposal will have an FSR of 2.45:1, which exceeds the FSR control in WLEP 1995 and WLEP 2012. The applicant submits that:
an increase in FSR of .13:1 of a development of this size would be impossible to discern to anyone but the most trained observer. This is an increase in FSR of just over five percent and is de miminis.
The applicant referred to the evidence of its urban design expert, Mr Dickson, in relation to the FSR of existing buildings in Devonshire Street, and recent developments nearby and to the potential for redevelopment in the area as being justification for the increase in FSR.
The applicant examined the evidence of the council's planning expert Ms Laidlaw. Notably, the applicant submits that the application should be assessed against the objectives of the height and FSR controls in WLEP 2012, rather than WLEP 1995. The applicant provided an assessment table to demonstrate the proposal's consistency with the objectives in cll 4.3 and 4.4 of WLEP 2012. In the applicant's submission, the expert opinion of Mr Dickson should prevail and on his evidence, the proposal meets these objectives.
The applicant reviewed my findings in Maygood and submits that, on the basis of the decision of Pepper J, my findings "have placed too much emphasis on WLEP 1995" and that my conclusion (at [52]) is "fundamentally flawed" where I state:
52 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 applicant submits that
For the reasons given by Pepper J, the conclusion that the height control of 34m in WLEP 2012 is not a reason why the storey control in WLEP 1995 is no longer relevant, is (respectfully) wrong. For the reasons outlined earlier, WLEP 2012 must be considered in the determination of the development application. A new height control now applies. WLEP 2013 should, consistent with the long line of authority referred to in the Court of Appeal, be given determining or significant weight.
In light of the decision of Pepper J, the applicant revisited my findings (at [58] and [59]) and made the following submission:
a. 58 ... 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, (emphasis added)
This is not an expressed requirement of the WLEP 2013. Each of the objectives have been set out above and analysed. If this were the expressed requirement then the Minister would not have increased the permitted height of buildings in this zone or in Devonshire Street. He would have maintained the number of storey control in WLEP 1995 or a height in metres equivalent to that 9 storey control.
In any event, the predominant built form of nearby buildings takes in the land in all directions. The buildings are quite disparate and the area is undergoing change evidenced by this application. The Council's car park and solar farm is an example. New development on the subject land is another. New development to the east is another to a height of 34 m.
What the development musty satisfy are the planning instrument requirements that govern development of the land such as WLEP 2013 (now) and S£PP 65.
b. 59 The additional height and FSR will add to the bulk of the building and will alter its scale relationship with nearby buildings.
Whilst this is in part true the WLEP 2013 accepts that some change is appropriate.
The objectives of relevance address impacts such as views, shadowing and the like - not scale relationship with some but not all nearby buildings. The experts agree that none of the stated objectives of relevance, such as over shadowing, are offended.
c. 59 ... 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.
Additional bulk in development for this has been accepted by the Court and the Minister. Nothing mandates that Level 9 and 10 cannot be visible from the street. Nothing mandates that they have be recessive floating elements (which Mr Dickson maintains they will be) nor that building bulk may not be added to per se.
d. 59 ... The bulk of the proposal will appear greater than that of the nearby buildings.
This is subjective. The car park is a bulky building lacking any aesthetic.
Much bulkier buildings are visible in the CBD fringe to the north.
Newly approved development has been identified close with FSR much greater than that proposed.
The buildings in Devonshire Street are massive, almost brutal, blocky buildings with no articulation and heights of up to 10 stories.
The proposed building will definitely not have a monolithic unrelieved appearance of many of its 1970's neighbours.
e. 59 ... 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.
This should be a consideration of little weight given the relevance of the WLEP 2013.
f. 59 ... 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(l)(d) of WLEP 1995.
Given the relevance of the WLEP 2013 and the compliant height there under and the de minimis and indiscernible increase in FSR of the proposal, self evidently the SEPP 1 Objections should be upheld.
The applicant submits that the development application should be approved as proposed. Alternatively, with a deferred commencement condition which setback level 9 and 10 and cutback the roof overhang (or introduce slots) to reduce the bulk and overshadowing.
In its submissions in reply to council's submissions, the applicant generally restates its earlier submissions and refers to evidence in the proceedings. The applicant further submits that the previous history of approvals for the development is irrelevant to the assessment of the application and that the error in interpreting cl 1.8A of LEP 2012 was not "immaterial" to my decision.
Council's submissions
The council accepts that in light of the decision of Pepper J, I did not properly construe cl 1.8A of WLEP 2012 and therefore failed to take the provisions of that plan into account when determining whether to grant consent (other than in respect of dealing with the SEPP 1 objections). The council submits that this error is immaterial to my decision to reject the development application given that I considered WLEP 2012 in determining the SEPP 1 objections
The council refers to the evidence of Ms Laidlaw as justifying the refusal of the development application notwithstanding its compliance with the 34m height control in WLEP 2012. Council submits that:
Although the DA complies numerically with the 34m height standard, the evidence discloses that the following objectives in WLEP 2012 cl 4.3 are not met: 4.3(1)(a) because it does not ensure that the new development is in harmony with the bulk and scale of surrounding buildings and streetscape and 4.3(1 )(b) because it does not minimise the impacts of the overshadowing on Chamberley...
In considering WLEP 2012, there can be no automatic presumption in favour of exploiting the greater height standard that WLEP 2012 allows.
.......the proposed changes will add to the visual bulk of the building and impact on the scale relationship with the nearby buildings. Contextually it remains appropriate to have the floorspace arranged in a lower, broader form that maintains consistency with the established character of Devonshire Street.
The council submits that the development application should be refused.
In its submissions in reply to the applicant's submissions, council reiterates that the increase in floor space is not "marginally over what has been approved". Rather it is 44% in excess of the FSR standard in WLEP 2012. The increased FSR adds to the bulk of the building and would be discernable. The council submits that the proposal does not meet the objective of the height control to be "in harmony with the bulk and scale of surrounding buildings in the streetscape" or objective (c) of the FSR control in relation to overshadowing.
Further, the council submits that FSR is a "loose fit" with the envelope resulting from the other controls, including height and that:
there is no presumption under WLEP 2012 that every development should be able to achieve the upper limits of all the controls, particularly where the FSR is already exceeded in a lower development and where the resulting streetscape is at a variance to the predominant height.
The applicant cannot rely on developments referred to by Mr Dickson or future development of land opposite the site as this does not form the predominate context in which the development must fit.
Findings
The consequence of the decision of Pepper J is that the reasoning in Terrace Towers and the "stream of authorities" both proceeding and succeeding that decision must be applied to the determination of the development application.
Mason P in Terrace Towers (with whom Spigelman CJ and Ipp JA agreed) stated (at [50]-[51] and [53]:
50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s79C(l)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight.
51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(l)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival".
.........
53 The relationship between LEP 1993 and LEP 2000 was correctly stated in the next paragraph of the judgment (emphasis added):
[17] Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993 although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209).
Further (at [59]) Mason P 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"..... 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......
In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
The parties, in their written submissions, agree that as LEP 2012 has been made, it is "imminent and certain" and should be given significant weight. However, they reach different conclusions on whether the proposal undermines the expressed future planning objectives for the area in LEP 2012, in particular, the FSR (cl 4.4) and height controls (cl 4.3).
While LEP 2012, must be given significant weight, the relevant planning controls under which the development application must be assessed remain those in WLEP 1995 (Terrace Towers at [53]). Consistent with the decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, 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.
In considering whether to uphold the SEPP 1 objections in Maygood, I had regard to WLEP 2012 in determining the likely future character of the site. As noted by Pepper J (at [16] to [18]):
16 However, in determining the SEPP 1 objections, the Commissioner found it relevant to assess the existing and likely future context of the site, which in turn meant having regard to the 2012 LEP. In her opinion, the instrument should be considered in determining whether strict compliance with the FSR and height standards in the 1995 LEP were unreasonable, unnecessary or tended to thwart the attainment of the objects of the EPAA specified in s 5, and thus, whether the SEPP 1 objections were well founded. In short, the 2012 LEP provided "guidance as to the development likely to occur through future development applications on other land and to the likely future character of the locality of the site" (at [29]).
17 But notwithstanding the provisions of the 2012 LEP, the Commissioner held that the SEPP 1 objections were not well founded and she dismissed the appeal (at [59]-[61]).
18 No issue was raised in this appeal as to whether, even if I upheld the grounds of appeal raised by Maygood, the appeal should nevertheless be dismissed on the basis that any error by the Commissioner was immaterial to her decision given her consideration of the 2012 LEP in determining the SEPP 1 objections. In the absence of any argument on this point I would have extreme misgivings about entertaining it, and therefore, as a matter of fairness to Maygood, do not do so.
The parties have different interpretations on the extent to which the error in the application of cl 1.8A effected my decision, given that I had considered WLEP 2012 in determining the SEPP 1 objections. The council submits that the error is immaterial to my decision. Whereas, the applicant submits that, as council did not make this submission to the Court on appeal it is therefore not open to it to do so in the remitted appeal.
While I gave weight to WLEP 2012 in determining the likely future character of the locality, it is appropriate that I reconsider the SEPP 1 objections in light of the decision of Pepper J.
Are the SEPP 1 objections well founded?
Preston CJ in Wehbe 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".
His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states (at [42] to [43]):
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).
Preston CJ (at [44]) notes, "although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary". His Honour then discusses other ways that are explained in the authorities, including (at [47]):
47 A fourth way is to establish 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: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].
Although, the SEPP 1 objections that were submitted with the development application relied on achieving the objectives of the standard, Mr Tomasetti, for the applicant in the Maygood appeal, submitted that the FSR and height controls in LEP 1995 had been effectively abandoned and were irrelevant, which I discuss (at [52]) in Maygood. I maintain my decision that because the proposal and other developments already exceed the FSR control in cl 23(e) of WLEP 1995 of 1.5:1, this does not mean that the control has been abandoned, in the manner suggested by Preston CJ. Even if this were the case, the FSR control in WLEP 2012 of 1.7:1 is not dissimilar to the earlier control and as WLEP 2012 has only recently been made, the new FSR control has clearly not been abandoned.
While the height control in WLEP 2012 must be given considerable weight it does not mean that the height control in WLEP 1995 is "irrelevant" as submitted by the applicant. If this were the case, the savings clause in cl 1.8A would have no work to do as once a Draft LEP is made, the provisions of the earlier instrument under which the application was lodged, would not be a consideration in the assessment of that application.
Notwithstanding the commencement of WLEP 2012, upholding the SEPP 1 objections to the development standards for height and FSR in LEP 1995 remain a precondition to the granting of development consent. In considering whether the SEPP 1 objections are well founded, the height and FSR controls and their objectives in cl 4.3 and cl 4.4 of WLEP 2012 must be given significant weight. The relevant question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms, be consistent with the expressed future planning objectives for the area.
The approved development and the proposal exceed the FSR control in both WLEP 1995 and WLEP 2012. The objectives of the FSR control are set out in cl 13(e) in WLEP 1995 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.
For the reasons set out in Maygood, I accepted that the objective (a) and (b) were met, but not objective (c).
The objectives of the FSR control in cl 4.4 of WLEP 2012 are:
(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 minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,
(d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone,
(e) to permit higher density development at transport nodal points,
(f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood,
(g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood,
(h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood,
(i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas,
(j) to encourage the consolidation of certain land for redevelopment,
(k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses.
The applicant's written submissions that these objectives are achieved largely rely on the additional bulk being imperceptible and a de minimis increase over what was already approved. Further, the applicant submits that the bulk is acceptable as it is below the height control in cl 4.3 and would achieve an appropriate transition with the "massively high" buildings in the Chatswood CBD.
On the basis of the evidence before me in Maygood, I found that the proposal would add to the visual bulk of the building and increase overshadowing of the adjoining building. I also did not accept the applicant's reliance on higher buildings, such as 38 Albert Street, which was approved under different planning controls, to justify a further increase in FSR. Under WLEP 2012 that land remains in a different zone being within the B4 Mixed Use Zone with a maximum FSR of 2.7:1 and a maximum height limit of 34m. Similarly, under WLEP 2012, the council car park and land opposite are within the B4 Mixed Use zone with a maximum height limit of 34m but no FSR control. Other land in Devonshire Street, to the north of Johnson Street, is within the same R4 zone as the site. Land in Devonshire Street, to the south of Johnson Street is zoned R2 Low Density Residential with a maximum FSR of 0.4:1 and a maximum height of eight metres.
Objective (i) of the FSR control in cl 4.4 of LEP 2012 seeks to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas. A further increase in the FSR of the development on the site would not achieve an appropriate transition between these sites in the Mixed Use zone and the residential development in Devonshire Street. The SEPP 1 objection to the original application, and subsequent amendments, accepted that the exceedance of the FSR control in WLEP 1995 was acceptable principally because the development maintained the bulk, scale and density of the existing residential development in Devonshire Street, north of Johnson Street. The experts have agreed that these developments are unlikely to change under WLEP 2013 as they exceed the FSR control and are strata titled. It therefore remains appropriate that the proposed development fit in with these residential buildings to form an appropriate transition between the existing and potential development in the B4 Mixed Use Zone and the residential areas in Devonshire Street.
The increase in bulk in the current proposal beyond that anticipated by the FSR control in cl 4.4 of WLEP 2012 is not justified on the basis of meeting the objectives of this control.
In Maygood, I accepted Ms Laidlaw's opinion that the objectives of the nine storey height control in cl 24(1)(d) of WLEP 1995 are to limit impacts such as overshadowing, privacy and views and to be compatible with the existing and desired future character.
The proposal will be 3m lower than the height limit of 34m in WLEP 2013, however, this is a maximum control and its achievement is dependent upon satisfying the objectives of the control and also works together with other controls such as FSR. The objectives of the height control in cl 4.3 of WLEP are:
(a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape,
(b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,
(c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores,
(d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development,
(e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping,
(f) to use maximum height limits to assist in responding to the current and desired future character of the locality,
(g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood,
(h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.
Objectives (a) and (f) of cl 4.3 are similar to those I accepted for cl 24(1)(d) and for the reasons in Maygood, are not met by the current proposal. Similarly, for the reasons discussed above, the proposal does not meet objective (h) in cl 4.3.
In Maygood, I found (at [56] to [61]) that the proposal did not meet the objectives of the height and FSR controls in WLEP 1995 for the following reasons:
56 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.
57 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.
58 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.
59 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 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.
60 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.
61 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.
In considering the evidence and the further submissions of the applicant, I find that there is no reason to change the conclusions I reached in Maygood, other than the application of cl 1.8A of WLEP 2012. In Maygood, I have already found that the proposal in its current form is not in harmony with the bulk and scale of surrounding buildings in the streetscape and does not respond to the desired future character given that the predominant character of the residential flat buildings is unlikely to change.
Increasing the setback of levels 9 and 10 from the southern boundary and cutting back the roof overhang (or introducing slots) would reduce the bulk of the building and its overshadowing impact. However, I do not accept the applicant's alternate submission that the development application should be approved subject to a deferred commencement condition, which would require these changes. There is a degree of uncertainty as to the final form and impacts of such an amended proposal and whether it would meet the objectives of the height and FSR controls. It is more appropriated that such changes be made through a new application, or s96 application, which would be assessed under the current planning controls.
For the reasons in Maygood, I found that the SEPP 1 objections to the height control in cl 24(1)(d) and the FSR control in cl 23(e) are not well founded. In reconsidering the SEPP 1 objections in light of the significant weight that must be applied to WLEP 2012, I find that the proposal is not consistent with the future planning objectives for the area in WLEP 2012 as expressed by the objectives for FSR in cl 4.4 and height in cl 4.3 of WLEP 2012. I therefore reach the same conclusion that the SEPP 1 objections are not well founded and that granting consent to the application would not be consistent with the aims of SEPP 1 as set out in clause 3. Furthermore, in considering cl 8(b) of SEPP 1, while there may be no public benefit in maintaining the height and FSR controls in WLEP 1995, there would be a public benefit in maintaining the FSR control in WLEP 2012, given that it has only recently commenced and achieves a proper planning purpose. For these reasons the application must fail.
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: 30 October 2013
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