Rzepecki v Central Coast Council

[2020] NSWLEC 1421

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rzepecki v Central Coast Council [2020] NSWLEC 1421

Hearing dates:

18 August and 2 September 2020

Date of orders:

10 September 2020

Decision date:

10 September 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are as follows:

(1) The Court grants leave to rely on amended acid sulfate investigation, dated 25 August 2020; and an amended cl 4.6 written request, dated 19 August 2020.

(2) The appeal is dismissed.

(3) Development Application DA/658/2018 which as amended, seeks Torrens title subdivision of one lot into two lots, and construction of dual occupancy dwellings on Lot 128 in DP 18958, also known as 53 Manly Parade, The Entrance North is refused.

(4) The exhibits are returned, except A, B, C, E and 7, which are retained.

Catchwords:

DEVELOPMENT APPLICATION –subdivision – dual occupancy dwellings – compatibility with character and streetscape – non-compliance with FSR seeking variation to development standard – acid sulfate soil investigation

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures) Act 2020

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Wyong Local Environmental Plan 2013

Cases Cited:

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

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020)

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Joseph Rzepecki (First Applicant)
Leokadia Rzepecki (Second Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
A Gough (Applicants)
S Simington (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/389791

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA/658/2018 (DA) by the Central Coast Council (hereafter the Council) which as amended, seeks subdivision of one lot into two lots, and construction of dual occupancy dwellings on Lot 128 in DP 18958, also known as 53 Manly Parade, The Entrance North (hereafter the site).

Background

2. The DA was lodged with Council on 19 June 2018, and after notification, no submissions in objection were received.

3. On 25 July 2019, the Council refused the DA on the grounds of unsatisfactory exceedance in height and floor space ratio (FSR) development standards, incompatibility with character and streetscape, potential acid sulfate soil impact, increased risk to life from flooding, and as a result the proposed development not in the public interest.

4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. In response, the Land and Environment Court (the Court) ordered a conciliation that commenced onsite between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). Conciliation was subsequently terminated as an agreement could not be reached based on expert discussions on the contentions raised. The hearing was held forthwith.

6. The parties agreed for the hearing to proceed remotely by Microsoft Teams. This approach to the hearing procedure is consistent with the Court’s COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and the Court’s COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020.

7. Prior to the conciliation of the appeal, the applicant sought amendments to the plans and documents that support the DA, for which the Court (Registrar) granted leave to rely on, and which the respondent did not oppose. These plan amendments thereby amended the DA, which is now before the Court in the hearing of this appeal.

8. Further to the plan amendments, revised documentation, together with the draft conditions and evidence of the experts, the Council states that the contentions as specified in the Amended Statement of Facts and Contentions (SoFC tendered as Exhibit 1) that remain in hearing of the appeal include:

1. non-compliance with FSR development standard,

2. incompatibility with desired, future character and local area streetscape,

3. insufficient information to assess and manage potential acid sulfate soil (ASS) impact due to extent of basement excavation, and

4. consequently, the proposed development is not in the public interest.

9. As a result of consultation between the experts prior to and during the conciliation, the contentions relating to non-compliance with the height development standard, sufficiency of landscaping, flooding, essential services and coastal hazards were resolved and not pressed in the hearing.

10. At the resumption of the hearing after an adjournment, the applicant tendered an ASS investigation report, dated 25 August 2020, which was agreed by the parties as required to address the ASS related contention. The Court grants leave to rely on the ASS investigation report, unopposed by the respondent, which appends to the amended DA. This report, together with conditions of consent resolves the relevant contention to the satisfaction of the parties.

11. The parties filed with the Court on 2 September 2020, amended draft conditions of consent, identified as Exhibit 8, which are considered in the assessment of the proposed development.

The Site

12. Currently, the site is vacant, cleared of all structures and vegetation. The site, a regular, rectangular shape, that fronts 15.24 m to Manly Parade and has an area of 575.4 m².

13. The site is generally flat, bounded to the east and west by existing residential dwellings, and is in close proximity to a foreshore reserve and coastal dunes, to the east.

Relevant Planning Controls

14. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration, which must be satisfied for the grant of the DA under appeal.

15. The site is located within the R1 General Residential zone, as described in the Wyong Local Environmental Plan 2013 (WLEP). Pursuant to cl 2.3 of the WLEP, the proposed development is permissible with consent, and the objectives of the zone are relevant for consideration of this appeal:

Zone R1 General Residential

Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

• To promote “walkable” neighbourhoods.

• To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.

16. The aims of the WLEP, as established in cl 1.2, are also relevant for consideration, and described below are those that specifically relate to the proposed development, as argued by the parties:

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in that part of the Central Coast local government area to which this Plan applies (in this Plan referred to as Wyong) in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

(2) The particular aims of this Plan are as follows—

(a) to foster economic, environmental and social well being so that Wyong continues to develop as a sustainable and prosperous place to live, work and visit,

(b) to encourage a range of housing, employment, recreation, human services and appropriately located tourism-related development in Wyong to meet the existing and future needs of residents and visitors,

..

(h) to maintain and enhance the existing character, amenity and environmental quality of Wyong,

(i) to minimise risk to the community in areas subject to environmental hazards, including flooding, climate change and bush fires,

(j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas,

...

17. The parties agree that the proposed development complies with the relevant numeric development standards of the WLEP, except for FSR, as described in cl 4.4. Variation of a development standard may be considered by the Court, pursuant to cl 4.6, where a proposed development does not comply with a standard.

18. In addition, satisfaction of cl 7.1 of the WLEP is required, which relates to ASS, as the site is mapped as ‘Class 4’ (acid sulfate soil) land, pursuant to cl 7.1(2). Upon review of the amended ASS investigation report, dated 25 August 2020, the Council agrees that an ASS Management Plan is not required, pursuant to cl 7.1(4).

19. The parties agree that cl 7.2 of the WLEP, which relates to flood hazard, is resolved by the amended plans and documents that support the amended DA under appeal.

20. The Wyong Development Control Plan 2013 (WDCP) is relevant for the Courts consideration of this appeal, and the parties draw the Court’s attention specifically to the following chapters: 2.3 (dual occupancy development); 3.3 (flood management); 3.5 (coastal hazards); and 5.3 (The Entrance Peninsula).

Evidence

21. The Court was provided written and oral evidence from the respondent’s and applicant’s planning experts, Mr Shannon Butler and Ms Lorelle Fitzpatrick, respectively.

Does the request for variation of the FSR development standard satisfy the jurisdictional requirements to grant consent?

22. The planning experts agree that the primary issue that requires consideration of the Court under this appeal relates to the non-compliance with the FSR and assessment of compatibility with streetscape and desired, future character.

23. Clause 4.4 of the WLEP establishes a maximum FSR of 0.5:1 for the site. The experts agree that the proposed FSR for the development exceeds the development standard, however, disagree on the proportion of the variation sought. It is agreed that the gross floor area for both proposed dwellings are considered together to attain an FSR for the proposed development. The applicant states that the proposed development seeks an FSR of 0.605:1, based on a gross floor area of 351m², which is equivalent to a 61m² or 21% departure from the standard. The respondent however, calculates the exceedance in FSR as greater, because of inclusion of the upper level, and therefore contends the FSR proposed is 0.669:1, based on a gross floor area of 388.2m², equivalent to a 97.5m² or 33% departure from the standard.

24. As agreed in the hearing, the applicant amended the cl 4.6 written request to vary the FSR to consider both the applicants’ and respondents’ approaches to the determination of FSR, although it is recognised it relies on the same assessment statements irrespective of the proportional variation sought.

25. The experts disagree as to whether the development standard should be varied for the proposed development based on their assessment of compliance with the jurisdictional requirements of cl 4.6 of the WLEP. The Court is required to make its own assessment of the request to vary the development standard, and must be satisfied of the jurisdictional requirements to grant consent to the DA.

26. The experts and the Court agree that the FSR as proposed in this development, is calculated, pursuant to cl 4.5 of the WLEP below:

4.5 Calculation of floor space ratio and site area

(1) Objectives

The objectives of this clause are as follows—

(a) to define floor space ratio,

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

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

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

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

(2) Definition of “floor space ratio”

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area

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

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

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

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

(4) Exclusions from site area

The following land must be excluded from the site area—

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

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

…

27. Gross Floor Area (GFA) as defined in the WLEP is:

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

(a) the area of a mezzanine, and

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

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

but excludes—

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

(e) any basement—

(i) storage, and

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

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

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

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

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

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

28. An area in dispute between the experts in the calculation of the FSR for the proposed development relates to the enclosed space on the upper level of the building, which accommodates the lift, stairs and a landing. Ms Fitzpatrick agrees it is appropriate to include the landing area on the upper most level in the GFA, however disputes the inclusion of the lift and stair well areas on this level, which she considers as ‘common vertical circulation’, and therefore excluded in the GFA based on the definition.

29. Mr Butler however, considers the enclosed area on the uppermost level of the building, as a third storey, and therefore should include the entire enclosed area that adjoins the terrace.

30. I accept the approach adopted by the applicant in the calculation of FSR. I agree that the enclosed area on the upper level, which includes the lift and stairs, should not be included in the GFA, as they are expressively excluded in (d) of the definition in the WLEP. The area of the lift shaft and stairs are already calculated once on the ground floor and therefore do not need to be counted again based on my interpretation of the definition of GFA in the WLEP.

31. I agree with the experts that the enclosed landing area adjoining the terrace should be included in the calculation of GFA. Therefore, I accept the proportion of variation as sought by the applicant. This assessment however is somewhat irrelevant for the Courts consideration in determining whether to vary the development standard, as this is not the test for satisfaction of cl 4.6 of the WLEP. I do not agree, as posed by the respondent in submission that the proportion of variation of a development standard is an appropriate weight in in this circumstance when addressing the requirements of cl 4.6.

32. It is accepted by the experts and the Court that the FSR as proposed, exceeds the maximum FSR provided in cl 4.4 of the WLEP. Compliance with the requirements of cl 4.6 of the WLEP when seeking a variation in a development standard is a principal jurisdictional prerequisite that the Court must be satisfied before granting consent to a proposed development.

33. The DA relies on a cl 4.6 written request provided in Exhibit E, which seeks a variation of (exception to) the FSR development standard, and which the Court must consider pursuant to the requirements as set out in cl 4.6 of the WLEP below:

4.6 Exceptions to development standards

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

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

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

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

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

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

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

(b) the concurrence of the Secretary has been obtained.

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

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

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

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

34. When assessing a request for variation of a development standard, the steps of assessment are often referred to as the ‘Wehbe tests’, which are helpfully explained by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. A cl 4.6 written request seeking a variation in a development standard must establish reasonableness/necessity for the variation, which may address, among others the following:

1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved,

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

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

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

5. compliance with the development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the site/land. That is, the site should not have been included in the zone.

35. A recent decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) clarifies the correct approach to assessing the jurisdictional requirements to vary a development standard. Preston CJ explored in detail the ‘preconditions’ that must be satisfied, as established in cl 4.6 of the WLEP, that provide the consent authority (in this appeal, the Court) power to grant a development consent.

35. The first precondition, as established in cl 4.6(4)(a) of the WLEP, requires the Court to form two positive opinions of satisfaction, that is: as set out in cl 4.6(4)(a)(i), the cl 4.6 written request has adequately addressed the requirements relating to reasonableness/necessity for compliance to the standard (cl 4.6(3)(a)), and that there are sufficient environmental planning grounds (cl 4.6(3)(b)) to justify a departure from (variation of) the standard; and additionally, that variation of the standard is in the public interest because it is consistent with the relevant zone and development standard objectives (cl 4.6(4)(a)(ii)).

36. The second precondition to be satisfied, is that the Court has the relevant power to grant development consent, as set out in cl 4.6(4)(b) of the WLEP, and has considered the requirements for concurrence of the Secretary, as described in cl 4.6(5).

Satisfaction of Precondition one, cl 4.6(4)(a) of the WLEP

38. To address precondition one, an assessment of cl 4.6(4)(a) of the WLEP is required, as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3),

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

39. In addressing subcll 4.6(3)(a) and (b) of the WLEP, the applicant has provided a cl 4.6 written request, which concludes that a variation of the FSR development standard should be supported, as strict compliance to the numeric development standard in cl 4.4(2) of the WLEP is both unnecessary and unreasonable, and there are sufficient environmental planning grounds, for the following reasons:

1. the proposed development satisfies the objectives of the FSR standard in cl 4.4(1) of the WLEP. The relevant objectives generally relate to bulk and scale, facilitate development and the relationship to the streetscape;

2. the proposed density and bulk/scale is appropriate for the site and complies with other relevant standards of the WLEP, and controls in the WDCP. The proposed materials mitigate any perceived bulk and scale issues;

3. the existing streetscape is characterised by a mixture of single and two storey cottage style residential dwellings, together with medium density residential land use, many of which were developed under earlier planning controls;

4. the proposed development is harmonious in the streetscape, adopts significant front setbacks, and the upper level (third storey) is recessed, which results in a reduced visual presence. The proposed development integrates with the streetscape and appears as a consistent building with the desired, future character;

5. the variation sought is commensurate with other residential developments in The Entrance North locality, which has large houses with generous sized footprints to accommodate larger family units. In comparison, the proposed dual occupancies are not excessively large, yet provide sufficient space;

6. the variation permits a density that is appropriate for the zone, which includes a variety of low and medium density housing types;

7. the building scale of the proposed dwellings is consistent with the controls set out in the WDCP, in presentation to the street and has a positive relationship to the streetscape;

8. the relevant controls in the WDCP envisage a greater scale and density of development that is not currently observed in the area. The proposed development provides improved housing stock in the area and is consistent with the transition towards larger scale developments;

9. the additional FSR sought does not cause adverse impact, and does not impede provision of generous landscaping and deep soil areas to facilitate significant vegetation as envisaged in the WDCP;

10. the proposed FSR variation facilitates good design with habitable windows facing the public domain and significant articulation in the built form. A smaller dwelling would have less articulation, be less habitable rooms, result in poorer amenity and present poorly to the streetscape;

11. a compliant development would have an inferior streetscape presentation if parking was at ground level rather than as proposed in the basement; and

12. the variation sought allows the provision of a lift to all levels including the roof top terrace which contributes to the ‘social welfare’ of the future residents.

40. I find that the cl 4.6 written request for a variation in the FSR development standard that seeks to address the requirements of cl 4.6(4)(a)(i) of the WLEP, is not satisfied for the following reasons:

1. There are no relevant environmental reasons, such as sloped topography or limitation in lot size, that would require the dwellings to rely on a basement carpark, and therefore it is unreasonable to utilise the ground floor space as bedrooms, which thereby increases the FSR.

2. The proposed development is not consistent with the streetscape, as I observed of existing dual occupancies located in the street. No other development in the streetscape has adopted a design that relies on a basement garage. It is unnecessary to propose this design, particularly as the size of the lots are ‘generous’ and could adequately support a four bedroom dwelling with garaging, as expressly desired by the applicant.

3. The design of the basement carpark appears to be driven by the applicant’s aspiration for a large fourth bedroom on the ground floor, which is where an at grade garage would have been located. The addition of the fourth bedroom occupying what would have been garage space, as envisaged in the WDCP, is unreasonable, particularly as it results in additional FSR. The cl 4.6 written request acknowledges that the proposed variation in FSR is equivalent to the area of a double garage for each dwelling. Therefore, at grade parking would likely result in a potentially compliant or at minimum reduced FSR.

4. Further to this, the roof top terrace, as shown in the plan, has a blade wall that separates the open space into two private areas. This adds to bulk and scale. Also, at the third level, is an enclosed structure for the lift, stairs and a landing, which I find would appear in the streetscape as a third storey. The cl 4.6 written request does not adequately address this structure, nor the necessity for this area to be enclosed, particularly as it further adds to GFA and FSR. This enclosed structure on the third storey adds to the bulk and scale of the proposed development, and results in an incompatibility with the streetscape.

5. The proposed dwellings, as designed are large, unnecessarily reliant on basement garaging and have a third storey structure that together results in an increase in internal floor space within the building footprint. I accept that larger dwellings are envisaged in the local area, however what is proposed on the site is not reasonable. This design adds unnecessary bulk and scale to the dwellings, which is not compatible with the streetscape.

6. I consider that accessibility is not a sufficient environmental planning ground, as posed by the applicant, nor one that requires a large ground floor (fourth) bedroom in each dwelling, as lift access is provided to all levels, and therefore are accessible. Whist I accept that the applicant seeks a dwelling that provides ease of access to all areas, I find that the lift, together with the stairs provides sufficient access for the required purpose, and that provision of accessibility to a bedroom on the ground floor is not a reasonable environmental planning ground to justify a variation in the development standard.

7. The proposed development has utilised the opportunity to orient the (2) dwellings to the street, which is consistent with the controls in the WDCP. However, the reliance on basement carparking and third storey terracing further adds to the bulk and scale of the dwellings as perceived in the streetscape.

8. The shape of the site and its topography does not constrain future development in its presentation to the streetscape. I accept that the proposed dwellings comply with setbacks and landscape requirements in the WDCP. However, the presentation of the proposed dwellings to the streetscape with basement garaging, almost full height privacy screens on the front façade and an enclosed third storey with roof top terrace, including a separating blade wall, together will dominate the streetscape and is therefore not compatible.

9. I also recognise that existing residential dwellings in the streetscape do not currently present as a design that makes best use of the primary frontage, and that the area is under transition. I accept that the proposed development would improve the streetscape presentation of the site, which is currently a vacant lot. However, I find that the proposed design is not consistent with the future, desired character of the R1 zone.

10. The design of the proposed dwellings with the same orientation and design, minimal articulation and basement garaging does not break up the bulk and scale in the streetscape. I find that the dual occupancies will present as mirror images, contrary to the WDCP.

11. The proposed development does not achieve a design that is characteristic of The Entrance Peninsula or the more localised area around the site, due to the mirror imaging of the dual occupancy dwellings.

12. The proposed dwellings when viewed from the streetscape, will dominate the site and in the local area, which I find is inconsistent with the desired, future character of the local area.

13. The cl 4.6 written request has not addressed to my satisfaction that there are sufficient environmental planning grounds to vary the FSR development standard, as the proposed development will be perceived adversely from the public domain.

41. For the reasons provided above, I am not satisfied that a variation in FSR, as established in cl 4.4 of the WLEP, is reasonable nor necessary, and that there are not sufficient environmental planning grounds provided in the written request to justify a variation of the standard.

42. The objectives that relate to the R1 General Residential zone in the WLEP that are of particular relevance to the proposed development, and as explained in the cl 4.6 written request, are provided below:

Objectives of (R1) zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• ….

• To promote “walkable” neighbourhoods.

• To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.

43. The relevant FSR development standard objectives that must be considered for this DA under appeal as set out in cl 4.4(1) of the WLEP are as follows:

4.4 Floor space ratio

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

(a) to ensure that the density, bulk and scale of development is appropriate for a site,

(b) to ensure that the density, bulk and scale of development integrates with the streetscape and character of the area in which the development is located,

(c) to facilitate development in certain areas that contributes to economic growth.

(ca) ….

44. With regards to the requirements to vary the FSR standard, as set out in cl 4.6(4)(a)(ii) of the WLEP, the applicant explains that a variation in the development standard is in the public interest because:

1. the relevant zone objectives are achieved by:

1. the provision of two dwellings on the site provides for housing in the community, including those that seek to provide for their extended families;

2. the proposed dual occupancy is consistent with single dwelling houses in the area, and will introduce a variety of housing type with a different density;

3. the site is walking distance to facilities and recreation areas;

4. the proposed development is compatible in scale and character with local area;

5. the proposed development has a harmonious relationship to existing adjoining development, with third storey element centrally located and set back from street; and

6. the proposed development is compatible with desired, future character of locality.

2. the development standard objectives for FSR are achieved because the proposed development:

1. complies with the lot size requirement and fits well within the dimensions of the lot in a manner that achieves consistency with relevant planning controls and objectives for dual occupancies;

2. design integrates with streetscape and achieves a harmonious transition with adjoining residences; and

3. provides an investment in housing stock in The Entrance North locality.

3. As the proposed development achieves the relevant objectives of both the zone and development standard, it is therefore in the public interest.

45. My assessment is based on the cl 4.6 written request, expert evidence, as it relates to the objectives for the zone and development standard, and my site observations to assess the public interest benefit. I am therefore satisfied that I have sufficient detail to assess the requirements of cl 4.6(4)(a) of the WLEP.

46. With regards to the relevant zone objectives, I agree that the proposed development will provide housing opportunity in the local area, is consistent with the low density residential character of the zone and is designed having regard to the local amenity of the area. However, for reasons expressed previously, I am not satisfied that the zone objectives are achieved because the proposed development is not compatible with the scale and character of the local area, and does not complement the existing streetscape. The objectives of the R1 zone, as established in cl 2.3 of the WLEP are not achieved by the proposed development.

47. As explored previously, I consider that the proposed development does not present with a bulk and scale appropriate for the site, or which integrates with streetscape and character of the area. Therefore, I find that the relevant FSR objectives established in cl 4.4(1) of the WLEP are not achieved by the proposed development.

48. I therefore find that, pursuant to cl 4.6(4)(a)(ii), the proposed development is not in the public interest. There is public benefit in maintaining the FSR development standard on this site.

49. For the proposed development, the requirements of cl 4.6(4)(a) of the WLEP have not been satisfied and a variation of the FSR development standard is not justified.

50. I form the opinion and am satisfied that because the requested variation of FSR established in cl 4.4(2) of the WLEP is unreasonable and unnecessary, there are insufficient environmental planning grounds established and the proposed development is in not the public interest, precondition one is not satisfied.

51. The proposed development does not comply with the relevant clauses of the WLEP, specifically cl 4.4, and a variation of the development standard, is not agreed. The Court is satisfied that s 4.15(1)(a)(i) of the EPA Act is not achieved by the proposed development.

Satisfaction of Precondition Two, cl 4.6(4)(b) of the BLEP

52. Satisfaction of this precondition (two) relates to concurrence of the Secretary, pursuant to cl 4.6(4)(b) of the WLEP. To satisfy cl 4.6(4)(b), the requirements of cl 4.6(5) below, should be considered:

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

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

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

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

53. As per the decision of Preston CJ in Initial Action, the Court is not required to obtain or assume the concurrence of the Secretary, although as expressed at [29] it should address cl 4.6(5) of the WLEP:

“[29] On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41].”

54. I find that the requirements of cl 4.6(4)(b) of the WLEP are not satisfied because, as explained previously, there is no public benefit to a variation of the FSR development standard as proposed for this development. The proposed development does not satisfy the relevant R1 zone objectives or FSR development standard objectives.

55. I therefore consider that precondition two has not been satisfied and as a result the proposed development does not satisfy cl 4.6(4)(b) of the WLEP.

Is proposed development in the public interest?

56. The Council contends that due to the exceedance in FSR, particularly as it relates to the third story elements, there is an incompatibility with streetscape and desired, future character of the local area. Therefore, the proposed development is not in the public interest.

57. I agree with Council and find that, consistent with the determination made above, the proposed development is not in the public interest. The submissions made in objection by the residents following notification of the DA, as tendered in evidence are considered in my assessment of the evidence before me.

58. Therefore, the proposed development does not satisfy s 4.15(1)(e) of the EPA Act.

Conclusion

59. The proposed development has been assessed by the Court, based on the evidence provided, including the DA’s (amended) supporting plans, documents, expert report, observations made at the site visit and site photographs in the hearing of the appeal.

60. I have considered the relevant sections of the EPA Act in my assessment of this appeal. I find that the proposed development does not satisfy the relevant provisions of the EPA Act to grant consent to the DA under appeal, and specifically subss 4.15(1)(a)(i) and (1)(e), which are in dispute between the parties.

61. The appeal that relates to DA/658/2018, is refused, pursuant to subs 4.16(1)(b) of the EPA Act. The proposed development, as it is intended to be carried out, will result in a contravention of the EPA Act, particularly as the proposed development results in an unacceptable variation of the FSR development standard.

Orders

62. Consequently, the orders of the Court are as follows:

1. The Court grants leave to rely on amended acid sulfate investigation, dated 25 August 2020; and an amended cl 4.6 written request, dated 19 August 2020.

2. The appeal is dismissed.

3. Development Application DA/658/2018 which as amended, seeks subdivision of one lot into two lots, and construction of dual occupancy dwellings on Lot 128 in DP 18958, also known as 53 Manly Parade, The Entrance North is refused.

4. The exhibits are returned, except A, B, C, E and 7, which are retained.

…………………….

Sarah Bish

Commissioner of the Court

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Decision last updated: 10 September 2020