SH7 Best Rd Pty Ltd v Blacktown City Council

[2018] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:	SH7 Best Rd Pty Ltd v Blacktown City Council [2018] NSWLEC 1640
Hearing dates:	8 – 9 November 2018
Date of orders:	13 December 2018
Decision date:	13 December 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The request to vary the height of buildings standard, at cl. 4.3 of Blacktown Local Environmental Plan 2015 is not sustained. (2) The appeal is dismissed. (3) Development Application DA-18-00360 for alterations and additions to an approved, but unconstructed, six storey residential building at 124-132 Best Road Seven Hills is refused. (4) The exhibits are returned with the exception of Exhibit 1, 2 and A.
Catchwords:	DEVELOPMENT APPLICATION: application for additional height to an approved residential flat building – additional height sought to accommodate an additional storey and six apartments – variation to maximum height standard requested – variation not upheld – insufficient justification for the breach – appeal dismissed
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979
Cases Cited:	Abrams v Pittwater Council (2007) 156 LGERA 446 [2018] NSWLEC 85 Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Broadview Group Pty Ltd v Cumberland Council [2017] NSWLEC 1467 Gejo Pty Limited v Canterbury – Bankstown Council [2017] NSWLEC 1712 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Kolpos Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC 1572 Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	SH7 Best Road Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: P Tomasetti, SC (Applicant) P McEwan, SC (Respondent)   Solicitors: Paramonte Legal (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	2018/00142813
Publication restriction:	No

Judgment

Nature of Appeal and Outcome

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act (the Act) against the deemed refusal by Blacktown City Council of development application DA-18-00360. In this appeal the applicant seeks approval for additional development to the top of an approved, but unconstructed, six storey residential building. If approved the application would increase the height of the approved development by 2.9 metres and allow for six additional units (Exhibit A). The subject site is at 124 -132 Best Road Seven Hills.

2. The Council maintains the application should be refused on the basis that: it exceeds the height development standard under the Blacktown Local Environmental Plan 2015 (“LEP 2015”); that the proposed breach is not consistent with the objectives of the standard; and that the request to vary the standard does not adequately address the matters required by cl 4.6 of the LEP 2015.

3. The primary matter for the Courts determination is whether the power, pursuant to cl 4.6 of the LEP 2015, ought to be exercised in order to grant development consent notwithstanding the non-compliance with the height standard.

4. For the reasons set out below at paragraph [91 - 93], I am unable form the requisite opinion of satisfaction under cl 4.6(4)(a)(i) that the written request adequately demonstrates that compliance with the building height standard is unreasonable or unnecessary.

5. Given I am not satisfied by this threshold issue, no power is available to grant consent to the development application. As a result the appeal is dismissed and the application refused.

Relevant Background

6. On 1 June 2017 the Department of Planning and Environment (DPE) announced new “Planned Precincts”. One of the Planned Precincts announced by DPE is Seven Hills. The parties accept that the precinct encompasses the subject site. It is accepted by both parties that there is currently no draft precinct plan or documents that have arisen from this planning process. ( The parties agree that any new master plan for Seven Hills is neither imminent nor certain.

7. The subject site has an existing consent (DA/16/0449) for a residential flat development which is currently under construction. That development consent authorises works described as: ‘Demolition of existing structures and the construction of a six storey residential flat building containing 35 units. The units consist of 3 x 1 bedroom units, 24 x 2 bedroom units and 8 x 3 bedroom units with two levels of basement car parking for 44 resident spaces and 8 visitor spaces.’ (Exhibit 4)

8. The existing consent relied on a cl 4.6 variation request to the height standard, under cl 4.6, which was upheld by the Council. The planning assessment report for the existing approval states (in part):

“Clause 4.6 variation to building height- The proposal satisfies the height limit with the exception of the encroachments of the lift and stair access to the roof top communal open space and the roof top shade structure. The projecting lift and stair access increases the building height at the centre of the building by 2.25m, which equates to an 11.25% variation. The proposed encroachment of access stairs and lift overrun ensure that the rooftop communal open space is accessible and usable. These structures do not result in further overshadowing, nor adverse privacy (or) amenity impacts on the neighbouring sites. Furthermore, these structures will have minor visibility from the public domain, if any, and will not distract from the desired future character.”

…

(Exhibit 4)

9. Blacktown City Council, at its meeting on 19 July 2017 adopted a policy titled: ‘Waste collection strategies for residential flat buildings on small development sites’ (Penetration Policy). By reference to that document the intent of the policy is:

“.. to widen staff delegation in consideration of Clause 4.6 variations for the interpretation of height controls in the R4 High Density Residential zone. Dispensatory height plane penetration is proposed under strict circumstances where 2 individual lots have been amalgamated and waste collection vehicle movements reduce the developable ground floor area.”

(Exhibit 4)

10. The planning experts agree in the joint report that the above policy does not directly apply to the subject site. However the applicant argues that the policy is relevant to the Court’s consideration of whether the Council has abandoned the 20m maximum height standard.

11. No submissions were made to the Court by resident objectors concerning the application.

The Site and its Context

12. The site is rectangular is shape with a total area of 1,435 square metres. Adjoining the site to the west is a small area of public open space (‘pocket park’) and the rear of the site has frontage to Clancy Lane.

13. The land falls from Clancy Lane towards Best Street with a difference in level of approximately 3m.

14. The subject site is located within approximately 400m of the Seven Hills railway station and the commercial strip surrounding the station is within the visual catchment of the site.

15. In relation to the immediate context of the site the planning experts agree in their joint report that:

“The R4 zone land south and east of the Seven Hills shopping centre is undergoing a substantial transformation from the single storey detached house character with two sites at 1-11 Olive Street and 2-10 George Street under construction for 6 and 7 storey residential flat buildings respectively with four more sites, including 11-17 George Street immediately to the south of the site, currently before Council seeking consent for residential flat buildings.”

(Exhibit 5)

Experts

16. Mr Nash (for the Applicant) and Mr Apps (for the Respondent) prepared a joint report and gave expert town planning evidence with respect to the breach of the height development standard and the written cl 4.6 request.

17. The written variation request was prepared by The Planning Group NSW (Exhibit 2).

Relevant Planning Instruments and Policies:

18. The land is zoned R4- High Density Residential under LEP 2015. Residential flat buildings are permissible with consent in the zone. The objectives of the R4- High Density Residential zone are:

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

•  To provide a variety of housing types within a high density residential environment.

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

•  To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

•  To permit residential flat buildings in locations close to public transport hubs and centres.

19. It is accepted by the Council that the requested variation to the maximum height standard is consistent with these zone objectives.

20. Clause 4.3(2) of LEP 2015 establishes the maximum height applicable to the site as 20m. The objectives of cl 4.3 are:

4.3   Height of buildings

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

(a)  to minimise the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain from buildings,

(b)  to ensure that buildings are compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown,

(c)  to define focal points for denser development in locations that are well serviced by public transport, retail and commercial activities,

(d)  to ensure that sufficient space is available for development for retail, commercial and residential uses,

(e)  to establish an appropriate interface between centres, adjoining lower density residential zones and public spaces.

21. ‘Building Height’ is defined in LEP 2015 as:

building height (or height of building) means:

(a)  in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b)  in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

22. In seeking a height greater than the maximum height standard in LEP 2015, the onus is on the Applicant to meet the tests of cl 4.6: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (“Initial Action”). The Applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

“- that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

- that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b))."

23. The Court, on appeal, must form a “positive opinion of satisfaction” that the Applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

24. Further, in order for there to be power to grant development consent for a development that contravenes development standards in LEP 2015, I must be satisfied that the proposal is in the public interest because it is consistent with the objectives of the development standards and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2015);

The Variation Request

25. The written request identifies that, if approved the development would have a maximum height of 25.15m, or 5.15m greater than the maximum permissible height pursuant to cl 4.3 of LEP 2015. The point of the breach is nominated as the lift over run. The request states:

“It is recognised that a significant portion of the exceedence is attributed to the lift overrun and roof top pergola. If the development did not provide roof access and these additional amenities the maximum height of the development when measured to the top of the parapet would be 22.41m (ie. measured from an existing ground level of 43.69 to RL 66.1). This would equate to a maximum exceedence of 2.41m or a 12.05% variation at its highest point. Given that the roof top structures and lift overrun will not be visible from street level, the overall bulk and scale of the building is considered to be consistent with a compliant development.”

(Exhibit 2)

Does the written request adequately justify that compliance with the development standard is unreasonable or unnecessary?

26. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (“Wehbe”).

27. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the standard has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that compliance with the development standard is also unreasonable or unnecessary (Wehbe test 5).

28. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).

29. In this appeal, the written request examines each of the preceding Wehbe tests, whilst acknowledging that at least one must be demonstrated to meet the test in cl. 4.6(3)(a) (Exhibit 2).

30. The proceedings centred on whether the Applicant has demonstrated compliance with the development standard was unreasonable or unnecessary through either Wehbe test 1 or 4.

Are the objectives of the standard achieved notwithstanding the non-compliance?

31. The objectives of the Height standard are detailed at paragraph [19].

32. When taken as a whole the written request seeks to establish the objectives of the standard are achieved notwithstanding the height exceedence (Wehbe Test 1). The written request details the following reasoning, as summarised from the document, to establish this justification:

1. the Seven Hills Precinct has been nominated as a ‘Planned Precinct’ and is likely to see increased heights and densities in the near future.

2. that the potential visual, privacy and solar access impacts of the development (and the variation in height) will be no greater than a compliant development, and those impacts are satisfactory.

3. that the most dominant view of the proposed development will be from the Best Road/ George Street intersection where the development proposed presents essentially a complying height to the public domain.

4. that the development has no visual impact or overshadowing impact on the adjoining pocket park located to the west of the subject site.

5. the height of the proposal is compatible with the height proposed by the desired future character of the Seven Hills Precinct, the development either approved by Council or under construction, and within the adjoining commercial zone.

6. the proposal provides additional units in proximity to the station, the commercial centre and encompassed in the Seven Hills Planned Precinct, which support the revitalisation of the area.

33. Further the written request seeks to argue that compliance with the standard is unnecessary as the site is within the Seven Hills Planned Precinct. The written request argues that the precinct planning undertaken by DPE is likely to result in increases to height and a change to the future character. The written request argues that compatibility with this increased height is relevant to the consideration of objective (a) and (b) of the height standard.

34. The Applicant in their Statement of Facts and Contentions in reply argues that: ‘the most dominant view of the proposed development, in both the short and long term, will be from the Best Road/ George Street intersection. At this location the west elevation (adjoining the park) essentially presents as a complying development and has no impact on the adjoining RE1 Public Recreation land. Only minor elements of the upper level and the roof top elements exceed the 20 m height limit when viewed from this location. The overall height of the building when viewed from the adjoining intersection or park will be no greater than a compliant development.’ (Exhibit 5)

35. Mr Apps argues that in his assessment the written request fails to establish that the development is consistent with the objectives of the height standard. In particular he argues that the development is inconsistent with the with the objective (a) of the height control, namely: to minimise the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain from buildings.

36. In relation to the development’s compliance with objective (a) of the height standard Mr Apps argues:

“• The test is that impacts must be minimised.

• Regarding visual impact, GA does not suggest that the building lacks architectural merit, only that there is a greater visual impact of the additional height created by the extra storey when viewed from Best Road. This is exacerbated by the situation of the land (being) at the crest of the hill.

• While the additional length of shadows does not result in non-compliance with the ADG or BDCP benchmarks for solar access, it remains that the impact of shadowing is not minimised by the addition of height to the approved building.

…”

(Exhibit 5)

37. In the alternative Mr Nash argues the proposed non-compliance with building height does not have any adverse visual impacts and thus objective (a) of the height standard is satisfied. His reasoning is as follows:

“… in respect to visual impact the proposed development, being seven (7) storeys in height, will be consistent with the height (in number of storeys) as the mixed use buildings at 101-103 and 140 Best Road immediately to the north west of the subject site and visually prominent when viewed from Best Road, looking north-west from Third Avenue intersection. The maximum extent of non-compliance of the building form (that is the top of the parapet) is 2.41m on the south-east corner facing Best Road. KN considers the extent of the non-compliance of the building form would not be perceptible when viewed from the public domain although it is acknowledged that the lift overrun and rooftop structures would be visible from a distance (say from Third Avenue intersection).

However such visibility of structures and the like would be consistent with the built form approved by the Council in the immediate vicinity, that is lift structures dominant on the top of buildings ameliorated by rooftop structures associated with communal open space which is the circumstances with the subject property.”

(Exhibit 5)

38. In relation to the marginal impact of the proposed development on solar access to surrounding properties the applicant’s Statement of Environmental Impact (Exhibit 3) states:

“The proposed development does not result in a significant increase in terms of overshadowing of surrounding development when compared with the approved residential flat building.

…

At 9am the proposed development does result in the partial overshadowing of 11George Street, which was not previously overshadowed by the residential flat building originally approved under DA-16-04449. However, by 12pm the proposed development is not overshadowing any part of this property to its south.

At 12pm there is additional overshadowing to the rear yards of 120 and 122 Best Road and 17 George Street, noting that at 9am the two former properties are completely unaffected by overshadowing.

By 3pm any additional overshadowing impacts resulting from the proposed development occur wholly on the property at the corner of Best Road, William Street and Clancy Lane containing a KFC Store. Food and Drink premises are not as sensitive use as a residential development in terms of overlooking impacts.”

(Exhibit 3)

39. In the Joint Report the experts note their agreement to the following:

“The additional height causes an increase in the length of shadows. The increase in length of shadows does not cause any unreasonable impact on any surrounding property and does not result in a non-compliance with the ADG or Blacktown DCP 2015.”

(Exhibit 5)

Submissions:

40. In regards to objective (a) of the height standard Mr Tomasetti submits that Council has approved a number of structures within the vicinity of the subject site that have a built form that exceeds the maximum building height. In support of his submission he refers to Exhibit 1 which documents nine properties with current or pending approvals. Those properties are:

• The existing consent for the subject site (approved)

• 9-11 Third Avenue Seven Hills (application under assessment)

• 8-10 Second Avenue Seven Hills (application under assessment)

• 13-15 Second Avenue Seven Hills (application under assessment)

• 103 Best Road Seven Hills (approved)

• 140-148 Best Road Seven Hills (approved)

• 11-17 George Street Seven Hills (application under assessment)

• 2-10 George Street Seven Hills (approved)

• 1-11 Olive Street Seven Hills (approved)

41. Mr Tomasetti argues these properties are relevant to the Courts consideration of the compatibility of the proposed development with objective (a) of the height standard. He emphasises that this objective seeks to minimise the visual impact of a development not its height, and that this impact needs to be considered in the built form context surrounding the site.

42. To have a visual impact Mr Tomasetti submits that the observer of the building needs to see something that is out of conformity or that is distinguishable or jarring. He submits that the proposed exceedence of height will be unremarkable and indistinct from the existing, approved and likely buildings in the visual catchment.

43. Mr Tomasetti argues that the height of the proposed development, with a maximum height of 22.41 m to the building parapet and 25.15 m to the top of the lift overrun, is not inconsistent with the nearby developments proposed under Council’s penetration policy, or with the already constructed 6 and 7-storey developments at 101-103 Best Road and 140 Best Road, Seven Hills or the heights envisaged for the Seven Hills Town Centre.

44. Mr Tomasetti concludes that the proposed variation does not result in a visual impact as it is compatible with the height, bulk and scale of the development occurring in proximity to the site, and with the likely future character of that area. Therefore the variation is consistent with objective (a) of the height standard.

45. Mr Tomasetti submits that, on the evidence of Mr Nash, the development meets the remaining objectives of the height standard. Given the objectives of the height standard are achieved notwithstanding the proposed non‐compliance he argues it is demonstrated that compliance would be unreasonable or unnecessary in this instance.

46. In the alternative Mr McEwan accepts that no amenity impacts arise from the requested height breach. However he submits that there is a discernible visual impact that will arise from the breach when viewed from the public domain. He argues that the development plainly reads as a seven storey building and does not achieve the objective of ‘minimising visual impact’ as required by objective (a) of the standard.

47. Mr McEwan distinguishes the development detailed in Exhibit 1 from the current proposal on the basis that the listed approvals do not authorise an exceedence of the maximum height control to allow for additional habitable space. Rather he argues the exceedences approved by Council to date in the vicinity of the subject site have been to facilitate lift overruns, roof structures and the like.

48. In considering the compatibility of the development with objective (a) of the height standard Mr McEwan relies on the following dictionary definitions of minimise:

“minimise: ‘to reduce to the smallest possible amount, extent or degree.”

(Oxford English Dictionary extract – Exhibit 7)

“minimise: ‘to reduce to the smallest possible amount, or degree”

(Macquarie Dictionary extract – Exhibit 7)

49. Applying these definitions Mr McEwan submits that the additional floor space sought by the application is not compatible with an objective that seeks to reduce to the smallest possible amount the visual impact of the development.

50. Further Mr McEwan argues that the non-compliance is generated by the design choice of the applicant to seek additional residential floor area above the height limit, and approach that he submits lacks substantiation or justification in the written request.

Consideration and Findings

51. To uphold the height variation I must be satisfied that the applicant’s written request adequately addresses both: (Initial Action at [25])

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

2. that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

52. I must be satisfied by the arguments and justification in the written request in order to form the requisite opinion of satisfaction. This is clear from the wording of cl 4.6(3), and the decision of the Court in Initial Action at [15].

53. The description of the variation at paragraph [25] is founded on the logic that it is the additional facilities and structures provided on the roof top of the residential flat building that generate the variation to the height standard. This is not the case: each of these building components are capable of being contained within the maximum building height, subject to the design of the residential flat building itself. The existing approval for the site itself relied on a more modest variation to height, reflective in part of the sites slope. In contrast, in this development application, the variation arises from the insertion of an additional floor of units and the provision of access to the roof, which places the highest point of the building above the maximum height plane.

54. The development application, for which the variation is sought, is an additional level (or 6 apartments) at the top of an approved residential flat building. The analysis and consideration of the variation is confined to that scope of works, not the context of the remaining residential flat building proposed on the subject site, which is authorised by the existing consent.

55. That said it is not the quantum of variation but whether it is adequately justified in the circumstances that is relevant.

56. In determining whether the objectives of the standard achieved notwithstanding the non-compliance, and therefore compliance with the height standard is unreasonable or unnecessary, I am satisfied that consistency means: ‘agreeing or concordant’, ‘compatible’, ‘not self-imposed or self-contradictory’ (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).

57. With the benefit of the site view I do not accept the assertion in the written request that the most ‘dominant view’ of the proposed development is from the corner of Best Road and George Street, noting that the proposed development is an additional storey in this application.

58. Rather I adopt the oral evidence of the planners that the most visually prominent view of the variation (the application) is in proximity of the Best Road and Third Avenue intersection.

59. The Applicant seeks for the Court to place weight in its consideration of the developments compatibility with objective (a) of the height standard on the list of surrounding development detailed in Exhibit 1 (refer paragraph [40]). I accept the following evidence of Mr Apps (which was not contradicted by Mr Nash) that summarises the characteristics of those properties:

“Examples of 10 DAs with variations are provided in the Applicant’s Statement of Facts and Contentions in Reply filed 4 September 2018.

Of those 10:

- 1 is the previous development consent for the land;

- 2, 3, 4 and 7 have not been determined and cannot be relied upon to suggest that the standard has been abandoned;

- 5 and 6 are for approvals granted prior to the BLEP 2015 an therefore prior to the introduction of an LEP development standard for building heights;

- 8 and 9 involved height variations of 3.17 and 2.5m respectively, where the panel was convinced by satisfactory Clause 4.6 requests. It is unclear whether the circumstances of those matters are similar to the subject application; and

- 10 is a planning proposal for a 100m tall building on Seven Hills Plaza. The planning proposal has been deferred.”

(Exhibit 5)

60. Of the variations referenced by the Applicant, to support the submission that the development is compatible with the approved and pending character of the precinct, none of the residential developments are within the visual catchment of the site. I am satisfied that objective (b) of the height standard and the modulation in height limits demonstrated by the height maps mean that compatibility is more directed to like development types, over those in adjacent differing zones.

61. I accept the submission of Mr Tomasetti that objective (a) of the height standard seeks to address visual impact, which is not equivalent to visibility.

62. However I am not persuaded by the submission of Mr Tomasetti that in the circumstances of this case the proposed height of this building will be unremarkable and indistinct from the existing, approved and likely buildings in the visual catchment, as this is not borne out in the evidence. I am not satisfied that the residential applications on which he relies will be seen in the same view cone as the subject site when viewed from either the surrounding properties or the public domain.

63. Similarly I am not persuaded by the evidence of Mr Nash that the ‘visual impact of the proposed development, being seven (7) storeys in height, will be consistent in height (in number of storeys) as the mixed use buildings at 101-103 and 140 Best Road immediately to the north west of the subject site and visually prominent when viewed from Best Road, looking north-west from Third Avenue intersection’ (Exhibit 5). I am satisfied that the Height of Building Map which forms part of LEP 2015 seeks to distinguish the height of these commercially zoned properties from the residentially zoned properties surrounding the centre. Compatibility with these developments is less relevant as they are in a different zone and of a different build form character. I am not satisfied that this argument is sufficient to demonstrate an absence of visual impact from the height variation sought.

64. To an extent that the variation request seeks to compare any impact from the proposed development under this application with a compliant development. This is not the approach required to determine if an application of the height standard is unreasonable or unnecessary in the circumstances of the case: Initial at paragraph [87].

65. On the basis of the current planning controls I am satisfied that the height exceedence proposed by this application will be prominent, both in itself and given the location of the subject site at the top of a rise. I am satisfied that the variation sought (a total of 5.15m above the maximum height standard) will be perceptible in the streetscape/ public domain and from surrounding development. Further I am satisfied that the variation will have an impact that has not be demonstrated to be minimised.

66. On the basis of the evidence and the site view I am satisfied that the variation sought will result in an obstruction of the view to the urban centre of Seven Hills and a reduction in its prominence as a destination when viewed from the public domain. I am satisfied that this is a visual impact, and that it arises from the variation sought. On the basis of my observation on the site view the development will be detrimental to the visual accessibility of the Seven Hills Town Centre when being approached from Best Road.

67. Further I am satisfied that the increased height will also be detrimental and overbearing to the scale of the small adjoining pocket park to the west. Being a park of small dimensions the increase in height above the maximum height will affect the proportion and scale of the park in the public domain and impact its role in providing visual relief and open space amenity to the surrounding neighbourhood.

68. The written request provides no justification as to how the additional overshadowing of the residential properties to the south of the site (refer paragraph [39] and [40]) is consistent with the height of buildings development standard objective to minimise loss of solar access in circumstances where the impact arises from an exceedance of the standard.

69. I note that no architectural devices such as increasing the front setback of the additional floor, modulation or materiality of building form, or other means, have been utilised or demonstrated by the applicant to minimise this impact.

70. In these bases I am not satisfied that the Applicant’s written variation request has adequately justified that compliance with the standard is unreasonable or unnecessary through Wehbe test 1.

71. However I accept that the applicant requires only one means of demonstrating that compliance with the standard is unreasonable or unnecessary (Initial at [25]).

72. In the proceedings Mr Tomasetti also advances that compliance with the height control is unreasonable or unnecessary on the basis that the standard has virtually been abandoned or destroyed by Councils own actions in departing from the standard.

Has the height control been abandoned by the Council?

73. The written request also seeks to establish that the standard has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe Test 4). In support of that argument the written request states:

“Council consistently departs from the development standard and grants variations including some above 10%. This is given the Council has an appreciation of the need to achieve better development outcomes consistent with the zone objectives. Given the extent of variations, it is considered the maximum building height has been varied to a degree whereby strict compliance with the 20m height standard is no longer enforceable.”

(Exhibit 2).

74. In the planning joint report the experts agree that:

“Blacktown City Council has consistently demonstrated a willingness to depart from the strict adherence to the maximum building height standard within the R4 zone in respect to lift overruns and roof top structures, as evident in the consent granted to DA-16-04449 on the subject site which included a non-compliance of 2.25m for the lift overrun. The roof top structures associated with the communal open space on the proposed development do not contribute to any adverse visual impacts when viewed from the public domain.”

(Exhibit 5)

75. In the joint report Mr Nash argues that Council has abandoned the height standard. He reaches this conclusion by relying on the following:

1. the properties and the variations to the maximum height standard detailed in Exhibit 1;

2. the adoption by Council in July 2017 of the policy titled: Waste collection strategies for residential flat buildings on small development sites’ (Penetration Policy) (refer paragraph [9]).

3. He notes that ‘The Penetration policy recognises that a variation to the maximum building height is reasonable in some circumstances, in particular where there are no other amenity impacts. This demonstrates Council’s willingness to depart from the strict adherence to the height restrictions’ (Exhibit 5);

4. Further Mr Nash argues that the circumstances are similar to those considered by Gray C in Gejo Pty Limited v Canterbury – Bankstown Council [2017] NSWLEC 1712 (‘Gejo’) on the basis of (1) and (2) above. In particular he relies on the following paragraph from the decision:

“44 …I accept that, by demonstrating that the Council has abandoned the 18m height control on adjoining developments and has considered that 6 storey developments (with or without roof terraces) are appropriate on Weyland Street, the cl 4.6 request establishes that compliance with the control is unnecessary and unreasonable in the present circumstances.

…

The fourth of those approaches, often referred to as “Wehbe test 4”, is that the development standard has virtually been abandoned by the Council’s own actions in departing from the standard. I accept that the request demonstrates that this is what has occurred west of the site along Weyland Street, and on the site to the north east where the Council not only approved a 6-storey development that breached the height control but also required a communal open roof space to be constructed on part of the otherwise non-trafficable roof as a condition of development consent. In circumstances where the Council has not applied the standard to adjacent sites, and has twice varied the standard to allow additional height to accommodate a 6th storey and a roof terrace, and there has been no change to the controls or the standard, it would be unreasonable to require compliance with the standard on this site.”

76. Mr Apps disagrees with Mr Nash that the properties in Exhibit 1 establish that the development standard has been abandoned by the Council. His evidence on these properties is summarised at paragraph [59].

77. In the alternative Mr Apps argues that the properties in Exhibit 1 demonstrate Council’s appropriate use of the flexibility afforded by cl.4.6 of LEP 2015. He argues this flexible approach to the application of the height standard is demonstrated by the following extract of the Penetration Policy:

“3. The use of Clause 4.6

…

b. We do not indiscriminately use Clause 4.6 and have consistently applied the height restrictions in the LEP. Where we have made recommendations to the Sydney Planning Panel or Council to utilise Clause 4.6, these have been based on consistent design considerations that are applied to all applicants.

…

c. The variations that we have to date agreed fall into three categories:

i. Plant and equipment incursions into the height plane (for lift overruns and air conditioning units)

ii. Roof parapets

iii. On sloping sites where an encroachment into the height plane is offset by an equivalent under achievement on another part of the building

…”

(Exhibit 4)

78. Applying the above approach Mr Apps concludes that the approvals on which the applicant relies are more concordant with the approach applied by the Council in the existing consent for the site, which approved an exceedence for lift overrun, parapet and as a result of the sites slope. Mr Apps distinguishes those variations from the exceedence being sought under this application on the basis that the exceedence sought is for additional habitable floor space.

Submissions

79. Mr Tomasetti submits that the Penetration Policy adopted by the Council is the antithesis of assessing an application on the particularities of the site and the merits of the request which he argues is the proper approach to cl. 4.6. He reasons that the Penetration policy, in combination with the approvals given in proximity to the site that exceed the height limit (Exhibit 1), and the existing approval demonstrate that Council has undermined the height standard. Importantly he notes that all approvals given by the Council in the R4 High Density Residential zone in Seven Hills since the commencement of the 2015 LEP breach the maximum height standard.

80. Further Mr Tomasetti argues that it is important that the planning regime be predictably and consistently applied. He relies on the following extract from Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 (‘Warringah v Sedevcic’), which he submits is a statement of general principle that is applicable to the current case:

“… Because s123 of the Act permits any person (and not just the Attorney – General or a person with sufficient interest), to bring proceedings in the court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy.”

81. In conclusion Mr Tomasetti submits that compliance with the height standard is unreasonable and unnecessary in circumstances where the Council has abandoned the consistent application of the control and is the case for the height standard in LEP 2015.

82. In the alternative Mr McEwan submits that the Courts satisfaction with the matters listed at cl. 4.6(3) of LEP 2015 must be founded on the written request. He argues that the submissions and evidence of the experts in the proceedings can seek to explain, but not add to that justification.

83. Mr McEwan rebuts the submission of Mr Tomasetti in relation to the recent approvals of Council as follows:

1. variations consented to have not been to authorise additional habitable floor space as is the case in these proceedings.

2. the variations were assessed and granted on the basis of rationale specific to those developments, and the consent authority formed a view that the objectives of the controls were achieved notwithstanding the variations sought. Mr McEwan argues that such an application of cl. 4.6 satisfies the intent of the clause and is not evidence of abandonment.

3. the Penetration Policy was drafted only to provide a rationale, or guidelines, in which Council staff should consider written requests under cl. 4.6 of LEP 2015.

84. Finally in relation to the applicants reliance on the Courts decision in Gejo Mr McEwan argues that the reasoning in that decision is commensurate with the existing consent granted for the site. He submits that the existing consent accepted a variation in height consistent with the approvals in Exhibit 1, and the examples provided in the Penetration Policy. He submits these variations were granted in response to the slope of the site and to authorise the lift over run and the building parapet. Mr McEwan submits that the existing consent is consistent with the principle in Warringah v Sedevcic, but that the approval now sought is not as it seeks to breach the height limit to increase the number of units able to be accommodated on the site.

Findings

85. In Wehbe [47], Preston CJ, noted that ‘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).’

86. At [47] of Wehbe he discusses the circumstances where compliance could be established as unreasonable on the grounds Council had not applied the standard consistently:

“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: [cited cases omitted]”

87. However at [51] in Wehbe Preston CJ notes that the power to vary a development standard ‘is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act).” [cited cases omitted]

88. The Court has considered the question of abandonment of development standards in a number of recent cases. Importantly in Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85:

“44. This principle in Wehbe must be read in conjunction with the comments of Tobias JA, with whom Beazley JA (as her Honour then was) and Basten JA agreed, in Segal. That case concerned whether a Commissioner was obliged to follow the decision of another Commissioner or to give reasons for not so following. At [95]-[96], his Honour said:

[95] Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is

more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties.

[96] My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed.

45. The principle of abandonment in Wehbe when understood in conjunction with the decision in Segal makes it clear that what is required for a finding of abandonment is more than the decision of a previous administrative decision- maker. A pattern of abandonment such that the development standard can no longer be said to represent the existing and/or desired character of the locality would mean that the development standard had been “virtually abandoned or destroyed” in the sense considered by Wehbe, but not all non- applications will meet this description. It will be a matter of fact and degree in the circumstances of each case.”

89. Further in Broadview Group Pty Ltd v Cumberland Council [2017] NSWLEC 1467 at [33] O’Neill C accepted the agreement of the parties that that the Council has abandoned the height standard. But she noted that abandonment was demonstrated ‘not simply in approving a development on this site that significantly exceeded the height of buildings development standard of 36m, but by the Council’s own consistent acknowledgment that the 5:1 FSR is unable to be realised with an acceptable urban design outcome within a maximum height of 36m in the B4 Mixed Use zone and Council’s strategy to rectify this inconsistency by commissioning a number of reports, particularly the JBA report, with a view to amending LEP 2010 accordingly’.

90. In the decision of Kolpos Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC 1572 (‘Kolpos’) the Court noted that whilst a number of recent approvals in the vicinity of the site exceeded the height of buildings development standard that the provisions of cl. 4.6 should not be utilised to circumvent the proper mechanism of a planning proposal as follows:

“40 ...If it is Council’s intention to increase the height and development potential of buildings along the Canterbury Road corridor, then the proper mechanism for doing so is a planning proposal. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441:

The Court must assume a development standard in a planning instrument has a purpose: [cited cases omitted] Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act.”

91. Finally the applicant relies on the decision in Gejo as a comparative case where the Court determined that it was unreasonable or unnecessary for the height standard to be complied with as Council had not applied the standard to adjacent sites, in directly comparable circumstances.

92. Following a review of the evidence submitted by the Applicant in these proceedings, and the written request I am unable to reach the conclusion that Council has abandoned the height control. My reasoning is as follows:

1. I accept the submission of Mr McEwan that the Courts satisfaction with the matters listed at cl. 4.6(3) of LEP 2015 must be founded on the written request. The discussion, analysis and reasoning in the written request seeking to justify the variation on the basis of abandonment of the control is perfunctory;

2. When reviewed in detail I am not persuaded that the approvals granted by the Council detailed in Exhibit 1 are other than the application of appropriate flexibility of the height control by the Council. The reasoning of the application of that flexibility is enunciated appropriately in the assessment reports for the relevant sites;

3. I accept the evidence of Mr Apps that the current application is distinguished from these approvals, as the substantive exceedence is for additional habitable floor space;

4. I accept the submission of Mr McEwan that Council has applied a similar application of appropriate flexibility to the height control in the existing consent for the site.

5. Unlike Kolpos there is no acceptance by the Council, or DPE, that the height control is unable to work sensibly with the remaining controls in the LEP or produce an acceptable urban design outcome. Nor any evidence that a change is envisaged in the near future.

6. I accept the evidence of Mr McEwan that the Penetration Policy was drafted only to provide a rationale, or guidelines, in which Council staff should consider written requests under cl. 4.6 of LEP 2015, rather than as a ‘fait accompli’ that the height standard will be varied in the listed circumstances.

93. I am satisfied that the consents relied on by the Applicant demonstrate the appropriate and considered use of the flexibility afforded by cl. 4.6 to the application of the height standard in LEP 2015.

94. As such I am unable to form the requisite opinion of satisfaction that the applicant has demonstrated compliance with the maximum height standard is unreasonable or unnecessary. Consequent to these findings there is no power to grant consent to the development application and the appeal must fail.

95. I note that in the Joint Planning report, at paragraph 3.1.2 (i), the experts detail the areas of their disagreement as being whether the written request addresses adequately Wehbe Test 1 and 4. Mr Apps in his evidence argues that the remaining Wehbe tests have not been demonstrated by the applicant. Equally I am satisfied that the written request fails to establish other grounds that would justify the height variation sought.

Orders

96. The Court orders that:

1. The request to vary the height of buildings standard, at cl. 4.3 of Blacktown Local Environmental Plan 2015 is not sustained.

2. The appeal is dismissed.

3. Development Application DA-18-00360 for alterations and additions to an approved, but unconstructed, six storey residential building at 124-132 Best Road Seven Hills is refused.

4. The exhibits are returned with the exception of Exhibit 1, 2 and A.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 13 December 2018