Tasktea Pty Ltd v North Sydney Council

[2020] NSWLEC 1366

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tasktea Pty Ltd v North Sydney Council [2020] NSWLEC 1366

Hearing dates:

Conciliation conference held on 20 July 2020

Date of orders:

17 August 2020

Decision date:

17 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on the amended plans listed in Condition A1 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. 32/19 for alterations and additions to an existing commercial building resulting in an 11 level shop top housing development plus roof level communal facilities and parking at basement, ground, and first floor levels at 55-61 Chandos Street, St Leonards, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – shop top housing development – exceedance of the height of buildings development standard

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

North Sydney Local Environmental Plan 2013

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

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

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

Category:

Principal judgment

Parties:

Tasktea Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
A Pickles (Respondent)

Solicitors:
King Wood & Mallesons (Australia) (Applicant)
Maddocks (Respondent)

File Number(s):

2019/100913

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 32/19 for alterations and additions to an existing commercial building for a mixed-use development of 11 levels over basement parking (the proposal) at 55-61 Chandos Street, St Leonards (the site) by North Sydney Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 July 2020. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6(2) of the North Sydney Local Environmental Plan 2013 (LEP 2013).

Planning framework

6. The site is zoned B4 Mixed Use pursuant to LEP 2013 (Land Zoning Map - Sheet). The objectives of the zone, to which regard must be had, are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To create interesting and vibrant mixed use centres with safe, high quality urban environments with residential amenity.

• To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.

7. The height of buildings development standard for the site is 33m (cl 4.3(2) and Height of Buildings Map - Sheet HOB_001 of LEP 2013). The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2013, are:

(a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b) to promote the retention and, if appropriate, sharing of existing views,

(c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e) to ensure compatibility between development, particularly at zone boundaries,

(f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area.

8. There is no floor space ratio development standard for the site.

Contravention of the height of buildings development standard

9. The proposal has a maximum height above existing ground level to the top of the proposed lift shaft of 39.21m.

10. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Boston Blyth Fleming Pty Limited and dated 10 July 2020.

11. Clause 4.6(4) of LEP 2013 establishes preconditions that must be satisfied before a consent authority or the Court, exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), 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), and

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

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

12. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

13. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of LEP 2013 is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action at [15]), as follows:

(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.

14. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

15. 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; [2007] NSWLEC 827 [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

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

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

4. the development standard has been abandoned by the Council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note, this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

16. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

17. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary for the following reasons:

• The site falls approximately 3m from Atchison Lane frontage to Chandos Street frontage and the shallow depth of the site does not warrant a stepped building form;

• The proposal is consistent with the height of recently approved adjoining development;

• The adjoining development is not stepped to respond to the topography of the land;

• The portion of the building envelope above the 33m height development standard will not result in any unreasonable impact on views available from buildings to the south of the site;

• The level 5 balcony and living room window of the development to the south of the site, which is affected by the portion of the building envelope above the 33m height development standard, will continue to receive at least 2 hours of direct solar access during the winter solstice;

• Solar access to the public domain is not affected by the portion of the building envelope above the 33m height development standard;

• The inclusion of roof-top communal space is consistent with the roof-top amenities of adjoining developments.

18. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

19. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard as a justified response to the scale and form of recent development in the context of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

20. The second opinion of satisfaction in cl 4.6(4)(a)(ii) of LEP 2013 is that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

21. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.

Orders

22. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the amended plans listed in Condition A1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 32/19 for alterations and additions to an existing commercial building resulting in an 11 level shop top housing development plus roof level communal facilities and parking at basement, ground and first floor levels at 55-61 Chandos Street, St Leonards, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (545383, pdf)

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Decision last updated: 17 August 2020