TWT Development Pty Ltd v North Sydney Council

[2020] NSWLEC 1353

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

TWT Development Pty Ltd v North Sydney Council [2020] NSWLEC 1353

Hearing dates:

Conciliation conference on 21 July 2020

Date of orders:

11 August 2020

Decision date:

11 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(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. 30/19 relating to the demolition of an existing building and construction of a mixed use development containing 18 units, ground floor and basement level non-residential floor space and basement parking for 7 cars on land at 67-69 Chandos St, St Leonards, is approved, subject to the conditions of consent at Annexure A.

(4) The Applicant is granted leave to rely on the updated clause 4.6 written request prepared by BBF Planners dated 21 July 2020.

(5) In relation to the amendment for which leave is granted by Order (1) and (4) above, the Applicant shall pay the Respondent’s costs as agreed or assessed pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979 (NSW).

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

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

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

TWT Development Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

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

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

File Number(s):

2019/125653

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 refusal of Development Application No. 30/19 relating to the demolition of an existing building and construction of a mixed use development containing 18 units, ground floor and basement level non-residential floor space and basement parking for 7 cars (the proposal) at 67-69 Chandos St, 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 has been held on 21 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 and the proposal is permissible with consent. 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, pursuant to cl 4.3(2) 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.

Contravention of the height of buildings development standard

8. The proposal has a maximum height of 35.23m to the lift overrun, above ground level taken to be a sectional line between Chandos Street and Atchison Lane at the site boundaries.

9. 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 21 July 2020.

10. 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 development 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:

4.6 Exceptions to 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.

11. 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) 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

12. The first opinion of satisfaction required by cl 4.6(4)(a)(i) 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) (see Initial Action at [15]), as follows:

4.6 Exceptions to development standard

…

(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

13. 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]).

14. 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).

15. 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]).

16. 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 height of the proposal is consistent with the height of adjoining and nearby recently approved development fronting Chandos Street. The form, massing and scale of the proposed building envelope is consistent with the desired built form outcome for development in the St Leonard’s town centre under North Sydney Development Control Plan 2013 (DCP).

• The proposed building envelope is a better outcome for the site in terms of its detrimental affect on district views from surrounding residential development when compared to a complying building envelope on the site consistent with the height of buildings development standard of 33m and setbacks in the DCP, because the proposed building envelope provides slot views along the western boundary to achieve a view sharing outcome.

• The proposed building envelope results in a superior outcome for solar access to surrounding residential development when compared to a compliant building envelope. The proposed building envelope does not create additional overshadowing of 32-38 Atchison Street between 9am and 3pm on the winter solstice.

17. 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]).

18. 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 unique opportunities and constraints of the site, including the surrounding development. 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

19. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development 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]).

20. 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

21. 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. 30/19 relating to the demolition of an existing building and construction of a mixed use development containing 18 units, ground floor and basement level non-residential floor space and basement parking for 7 cars on land at 67-69 Chandos St, St Leonards, is approved, subject to the conditions of consent at Annexure A.

4. The Applicant is granted leave to rely on the updated clause 4.6 written request prepared by BBF Planners dated 21 July 2020.

5. In relation to the amendment for which leave is granted by Order (1) and (4) above, the Applicant shall pay the Respondent’s costs as agreed or assessed pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979 (NSW).

_____________________

Susan O’Neill

Commissioner of the Court

Annexure A (645647, pdf)

**********

Amendments

25 August 2020 - Pursuant to UCPR Rule 36.17 of the Uniform Civil Procedure Rules 2005, by the request of the parties and the Court’s own motion, include the following orders made on 21 August 2020:

“(4) The Applicant is granted leave to rely on the updated clause 4.6 written request prepared by BBF Planners dated 21 July 2020.

(5) In relation to the amendment for which leave is granted by Order (1) and (4) above, the Applicant shall pay the Respondent’s costs as agreed or assessed pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979 (NSW).”

Decision last updated: 25 August 2020