Williams v Ku-ring-gai Municipal Council

[2017] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:	Williams v Ku-ring-gai Municipal Council [2017] NSWLEC 1098
Hearing dates:	15 February 2017
Date of orders:	01 March 2017
Decision date:	01 March 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are:  1) The objection pursuant to cl 4.6 of the Ku ring gai Local Environmental Plan 2015 is not sustained; 2) The appeal is dismissed; 3) Development application DA/0309/16 for the enclosure of a laundry/ patio landing to create a ground floor study and the addition of a ground floor sun room off the existing meals room at 2 Carina Road, Turramurra is refused; 4) The exhibits are returned with the exception of exhibit 1, and the Class 1 application bundle filed on 28 October 2016.
Catchwords:	DEVELOPMENT APPEAL: under s97(1) against refusal of alterations and additions – acceptability of clause 4.6 variation request – variation request contains error – compatibility of development with character – consideration of impact of development.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 53: Metropolitan Residential Development
Cases Cited:	Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21 Wehbe v Pittwater Council [2007] NSWLEC 827 Moskovic v Waverley Council [2016] NSWLEC 1015
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Elizabeth Williams (Applicant) Ku ring gai Municipal Council (Respondent)
Representation:	Solicitors: M. Arch, Concordia Pacific (Applicant) A. Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/ 0322485
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged against the refusal by Ku ring gai Council of development application DA/0309/16. The application sought approval for the enclosure of a laundry/ patio landing to create a ground floor study and the addition of a ground floor sun room off the existing meals room at 2 Carina Road, Turramurra (the Site).

2. The appeal was subject to mandatory conciliation on 15 February 2016 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).

3. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the documents that support the development application.

4. The issues for the Court to determine are:

1. Whether the request to vary the floor space ration control is well founded and worthy of support (cl 4.6 request)

In seeking the Courts refusal of the application no other issues are pressed by the Council.

The site and its context

5. The subject site has an area of 412.6 m² and adjoins 67 Mimosa Road, which has a site area of 580.2 m². The subject site, and the land to the north and east of the site, is zoned R2 low density residential. The lots surrounding the site generally exceed the current minimum lot size of 930 m² that applies to the zone. To the south of the site the adjoining properties are larger lots in the E4 Environmental Living zone. The subject site contains an existing brick and tile residential dwelling.

6. The character of housing stock in the local area is of single and two storey form with varied architectural styles. The streetscape of the local area is dominated by landscape elements and wide treed verges. Overall the reduced built upon area in the vicinity provides a vegetated backdrop for the neighbourhood.

Background:

7. The original development of the site was the result of the utilisation of the (now repealed) State Environmental Policy 53 - Metropolitan Residential Development (SEPP 53)

Planning Controls:

8. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

9. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.

10. Ku ring gai Local Environmental Plan 2015 (LEP 2015) applies to the site. Pursuant to LEP 2015 the site is zoned R2 Low Density Residential. The objectives of the R2 zone are as follows:

• to provide for the housing needs of the community within a low density residential environment;

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

• to provide for housing that is compatible with the existing environmental and built character of Ku ring gai.

Council contends that the proposed development is inconsistent with the zone objectives.

11. Pursuant to cl 4.4 Floor Space Ratio (FSR) designates the maximum FSR for buildings on the site which is 0.4:1. The proposal has a maximum FSR of 0.47:1, which results in an exceedance of 23 sqm. (Exhibit 1)

12. The objectives of cl 4.4 Floor Space Ratio are:

(a)  to enable with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship;

(b) to provide for floor space ratios compatible with a range of uses.

Council argues that the development is inconsistent with objective (a).

13. LEP 2015, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

14. However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

(a) 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.

Relevantly cl 4.6(4) states:

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

15. Whether the Court accepts the applicant’s clause 4.6 variation requests, in relation to the variation of the maximum FSR and height of the development, is a jurisdictional precondition to consent.

16. Ku ring gai Development Control Plan 2015 (DCP 2015) applies. The relevant clauses for the proceedings are:

­ Clause 4 A.1 Local character and streetscape

Objectives

1 To ensure the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.

2 To ensure the development conserves and enhances the visual character of the street with particular reference to integration of:

i) architectural themes;

ii) building scale and setbacks;

iii) landscape themes; and

iv) fencing styles.

Controls:

Visual Character

1 Design components of new development are to be based on the existing predominant and high quality visual character of the local neighbourhood.

2 The appearance of the dwelling is to maintain the local visual character by considering the following elements:

i) visibility of on-site development when viewed from the street, public reserves and adjacent properties; and

ii) relationship to the scale, layout and character of the tree dominated streetscape of Ku-ring-gai.

3 The prominent and high quality characteristics of the neighbourhood are to be identified and considered as part of the site analysis.

­ Clause 4 A.2 Building setbacks

Objectives

1 To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

2 To ensure development is appropriately located on site and

i) maintains streetscape character;

ii) ensures the amenity of neighbouring properties is maintained or enhanced; iii) allows for the provision of landscaping and provide room for additional tree plantings to grow to maturity;

iv) facilitates solar access, daylight access and ventilation;

v) protects significant vegetation;

vi) facilitates efficient use of the site; and

vii) minimises bush fire hazard by preserving a “fuel free” zone (where development is adjacent to high bush fire hazard areas).

3 To enable landscaping to be provided between neighbouring buildings, particularly where there are two storey structures

4 To provide privacy and soften the visual appearance when viewed from the street and from the neighbouring property.

5 To maintain visual amenity and solar access of private open space.

6 To ensure that side setbacks provide adequate solar access and day light access.

7 To ensure dwellings on battle-axe lots are sited to have minimum impact on the amenity of private open spaces and living areas on neighbouring properties.

8 To ensure adequate privacy and amenity for each dual occupancy dwelling

Controls:

9. Where sites have a depth of less than 48m, a minimum rear setback of 25% of the average site depth is to be provided.

­ Clause 4 C.4 Private Open Space

Objectives

To ensure landscape development proposals provide useable outdoor recreation spaces as part of the overall design.

Controls:

1. At least one area of useable private open space which has a minimum depth of 5m and a minimum area of 50m2 is to be provided on each site. On steep sites Council may consider a reduction in the minimum depth requirement.

2 On constrained sites (biodiversity, riparian, steep topography) Council may consider decks as open space.

3 Landscape areas are to provide functional outdoor areas that:

i) are useable and relate well to indoor living areas;

ii) have a character that is consistent with or enhances the landscape character of the area;

iii) are located in consideration of noise, temperature, shade and screening; iv) are not dominated by adjoining development (in terms of overshadowing and overlooking);

4 Private open space is to constitute at least one north facing area providing adequate solar access. Refer to 4C.5 of this Part.

Public submissions

17. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the DCP 2015. No submissions were received.

Expert Evidence

18. The Court heard expert planning evidence from Mr Eugene Sarich, for the applicant, and Ms Janice Buteux-Wheeler for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 2.

Assessment of Clause 4.6 Variation request:

19. It is clear from a reading of cl 4.6 of LEP 2015 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the FSR standard by demonstrating that the breaches of the development standard are justified.

20. As part of the joint conferencing process Mr Sarich provided an updated written request under cl 4.6(3) which seeks to justify the contravention of the FSR standard (FSR request) (Exhibit 1). It is this FSR request that is relied on by the applicant.

21. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners on appeal exercising the functions of the consent authority have power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they:

1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)).

2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)).

4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

I have applied these tests to the current application in the following.

Consistency with the zone objectives:

22. In considering the question of consistency in relation to the zone objectives, I have utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] as follows:

the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible.

23. On the basis of the joint expert report, the oral evidence planning experts, and the FSR request (Exhibit 1), I accept that it can be reasonably argued that the proposed works are consistent with the objectives of the zone as they will: provide housing in a low density environment. Given the principle in Schaffer Corporation v Hawkesbury City Council I am not convinced that the development proposed is antipathetic to the provision of housing that is compatible with the existing environmental and built character.

24. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

Consistency with the objectives of the standard in question:

25. The objectives of the floor space ratio control at cl 4.4 (1) are:

(a)  to enable with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship;

(b) to provide for floor space ratios compatible with a range of uses.

In the circumstances of the case objective (a) is the most relevant.

26. Cl 4.4(2A) applies to land in the R2 Low Density residential zone and relevantly states:

Despite subclause (2), the floor space ratio for a building on land in Zone R2 Low Density Residential where the site area is within a specified range in Column 1 of the table to this subclause must not exceed the ratio specified opposite in Column 2 of the table.

Column 1	Column 2
More than 1,700 square metres	0.3:1
More than 1,000 square metres but not more than 1,700 square metres	((170 + (0.2 × site area)) / site area):1
More than 800 square metres but not more than 1,000 square metres	((120 + (0.25 × site area)) / site area):1
800 square metres or less	0.4:1

In relation to the subject site this clause alters the FSR nominated on the LEP maps of 0.3:1 to an FSR of 0.4:1.

It was Councils evidence that Councils intent in the drafting of this clause was to allow for the fact that some lots in the local government area had less land area, and therefore an increase in FSR was provided to these sites to allow them be developed with a dwelling that was consistent with the expectations of the community.

27. As part of the oral evidence the planning experts agreed the following interpretation of objective (a):

1. Firstly it seeks to ensure that the built form is compatible with the size of the land;

2. Secondly it seeks to ensure that the built form takes into account the environmental constraints of the land; and

3. Finally seeks to ensure that the built form is compatible with, and relates to, the context.

Given the above, it is clear that the test of consistency with the objectives (a) of the FSR standard is of a different nature to that of consistency with the zone objectives. Consistency with the objective (a) requires consideration of the compatibility of the development with land size, environmental constraints and context.

28. In summary the FSR request outlines the following to demonstrate the proposal is consistent with objective (a):

• The sunroom extension is considered minor in relation to the dwelling and the site utilisation.

• The deck area at the rear of the dwelling to be enclosed is within the extremities of the existing footprint.

• The resulting alterations and additions are considered to be compatible in bulk and scale with the site development.

• The proposal is considered compatible with the character of the locality, when the principles in the appropriate case law are applied.

• The visual catchment which incorporates the subject site is characterised by low density sign and two storey houses with a variety of forms, heights and site densities.

• The zoning of the precinct indicates a continuation of a low density residential environment

• The floor space ratio of a development is not readily translated into visual bulk and scale and the design of the proposed alterations are not perceived as incompatible because:      

­They are obscured from public view or appropriately screened by vegetation;

­They are located some 14m from the front boundary of the property

• The dwelling is otherwise compliant with side setbacks, height, landscaped area and other DCP controls with the exception of the rear setback. The rear setback of the extension will be a logical prolongation of the existing approved setback and is acceptable on its merits.

• The residential amenity that will result from the development represents a better planning outcome because it allows for the better utilisation of the land and buildings.

29. Preston CJ observed in his judgement in Randwick City Council v Micaul Holdings Pty Ltd at [39] that clause 4.6(4) does not require the consent authority to be satisfied directly that compliance with each development standard is unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the applicant’s written request has adequately addressed those matters. In this matter the FSR request, in contemplating the developments consistency with the objectives of the standard erroneously articulates the objectives of the development standard. It appears, as submitted by Mr. Arch, that this is a typographic error. As the objectives of the control are central to the variation request, I have given this weight in considering whether the request is well founded and adequately addresses the matters required by cl 4.6.

30. The issue of compatibility of a proposal within an existing context has been considered by the Court on many occasions. Roseth SC in Project Venture Developments v Pittwater Council[2005] NSWLEC 191 provided guidance in the assessment of whether a development would be compatible. It was his conclusion that for a development to be compatible, it must to be capable of existing together in harmony, and that the test different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve. He suggests there are two tests, one is whether a proposal’s physical impacts on the surrounding area are acceptable and the second is if it is in harmony with the buildings around it and the character of the street. He states:

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural styleexpressed through roof form, fenestration and materials

I have utilised the above framework to resolve whether the proposal meets the interpretation of objective (a) given at [27].

31. It was agreed between the experts that the relevant character is (Exhibit 2):

One and two storey dwellings of varying sizes

Generally, lots surrounding the site (from aerial photography) appear to have more landscape area that built upon area, and dwellings have a garden stetting with generous front and rear setbacks depending on whether they are single dwellings or dual occupancies. The size of allotments and extent of site coverage is also zone dependant. For example the allotments in the nearby E4 some are larger and have a higher proportion of landscape to built upon area

There are no other lots in the order of 412.6m². 67 Minmosa which directly adjoins the site has an area of 580.2m².

The lots surrounding the site generally exceed the 930m² minimum lot size that applies to R2 zoned land in the vicinity. The minimum lot size in the E4 zone is 1500m².

32. No issues are pressed by the Council that are relevant to test 1, namely that the development has unacceptable physical impacts, such as noise, overlooking, overshadowing and constraining development potential.

33. Ms Buteux-Wheeler confirmed that the Councils primary concern was the compliance of the development with the objectives of the FSR control, in particular the compatibility of the development proposed with the context. Her evidence was that achieving compatibility was difficult as the lot originated from a planning scheme that was delivered on a state wide basis and that sought to increase dwelling supply. In having this approach SEPP 53 provided for a greater density and build form than was allowed by the local controls. It was her oral evidence that the subject site currently sits in contrast the local area, and the visual catchment of the site and that this contrast will be emphasised by the proposed development.

34. Ms Buteux-Wheeler concluded that the current dwelling is not contributing to the landscaped backdrop of the local area, or allowing it to be achieved on the subject site by provision of adequate open space and setbacks. It was her evidence that the proposal, in particular the sun room extension, if supported by the Court would erode further the ability of the site to have contextual fit and contribute to the character of the local area.

35. In relation to the study component of the proposed works Ms Buteux-Wheeler concluded that, with the support of a well-founded FSR request the works would not be objected to by Council. These works are, in her view, distinguished from the sunroom as they are not visually prominent, fall within the existing roof of the dwelling and are small enough to take on the character of the existing house. Therefore these works would have a neutral impact on character.

36. In her oral evidence Ms Buteux-Wheeler agreed with Mr Arch that there are other developments within the visual catchment of the proposed works that are more visually prominent than the proposed sunroom extension, including on the adjacent property. It was her view that, similar to the current dwelling, these are anomalies and do not form the dominant character.

37. In relation to compatibility of the sunroom Ms Buteux-Wheeler was clear that she has no dispute with the visual impact of the structure. The argument from her perspective is that the dwelling relies on the adjoining properties to provide separation and a landscape setting for the dwelling amongst the existing built form. Her evidence was that the setback to 67 Mimosa is particularly sensitive in this regard. The character of the local area is strongly defined by the separation between built form and the provision of space for landscaping. This separation between built forms is key to the character of the area and is negatively impacted by the proposal, as outlined in the following:

(Ms Buteux-Wheeler) is of the opinion that due to the combination of the existing non-compliant FSR on the site and the siting of the existing built form with setbacks that are not consistent with the local controls or the existing surrounding character, the setbacks of the existing dwelling are of particular significance in maintaining a built form to space ratio to ameliorate a 172.244m² (plus garage) four bedroom dwelling on a lot that is less than half (43%) of the size of surrounding lots in the near vicinity. The addition of further floor space reduces the ability of setbacks to ameliorate the impacts of a development that is already in a negative position in relation to compliance and an anomaly in the area. (Exhibit 2)

38. In contrast it was the evidence of Mr Sarich that the proposal is a single storey addition, which is the predominant character. The works are minor and consistent with the setbacks established by the existing dwelling. The rear setback is consistent with the side setback of 67 Mimosa Road adding to the contextual fit of the proposal. The development is compliant with Councils controls in relation to open space and site coverage – both of which allow for landscaping which is identified as being an important element.

39. Mr Sarich argues that the sunroom does not offend the objectives of the control, but will improve the amenity of the residents. Approximately half of the additional floor space of the proposed sunroom would be contained within the current extent of the dwelling when viewed from the street. The remainder of the sunroom would be obscured from view on Carina Road by the existing fencing and landscape.

40. In contrast Ms Buteux-Wheeler argues that the extension of the sunroom and the enclosure of the laundry deck increases the proportion of the common boundary which is adjacent a building with a non-compliant setback. She concludes that the additional floor space will reduce the function of the rear setback in terms of: the relationship of space to built form; availability of opportunities for landscaping; and reducing the available private open space of the dwelling. In assessing the compatibility of the proposal utilising Project Venture Developments v Pittwater Council she concludes:

that an analysis of compatibility is not limited to the built form but also requires an assessment of the space surrounding built form, the size and configuration and relationship of lots, as the objectives of the standard require development to be in compatibility with the size of the land, and its context. This analysis is beyond bulk and scale when viewed from the street. (Exhibit 2)

41. In submissions Mr Arch emphasised that it is agreed between the experts that the development proposed has no adverse visual impact, and is not inconsistent with the architectural character of the surrounding development. It is his submission that therefore the extension cannot be objectionable. In utilising Project Venture Developments v Pittwater Council his submission is that the visual catchment is heterogeneous and includes two storey built forms with significant paved areas that are more visually obtrusive than the proposed works. He concludes that the test is that the development is ‘capable of existing in harmony’ and that this is achieved by the proposal.

42. Mr Arch concludes that the development has no impact that is worthy of refusal, and that Councils approach to the strict application of the control is a situation where a variation has no planning consequence should not be followed by the Court as it is contrary to the role of clause 4.6 which is to allow variation where it is appropriate.

43. In contrast Mr Hudson submits that the Councils evidence has confirmed that the key characteristic of the area, as defined by the planners at [31], is the space provided around the built form to reduce its scale and allow for landscaping. Council says this is not achieved by the proposal, as outlined by the evidence of Ms Buteux-Wheeler, and that in this case the applicant has not established that the proposal meets the requirement for a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship.

Findings

44. I accept the uncontested submission of Council that cl 4.4(2A) of LEP 2015 aims to address the disparity that would result for smaller lots by the application of a zone wide FSR. In the case of the subject site this clause operates to increase the floor space provision.

45. As detailed in Project Venture Developments v Pittwater Council the most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. Relevantly this relationship is articulated in the specific objective of the floor space control in contention. Objective (a) requires the built form to be compatible with the land size, environmental constraints and the context.

46. I accept the planners agreed description of the existing character at [31]. I accept the submission of the Council that the key characteristic of the area, is the space provided around the built form to reduce its scale and allow for landscaping.

47. In my assessment I have applied the agreed interpretation of objective (a) at [27]. With the benefit of a site inspection, a review of the FSR request, and the evidence of the experts, I accept the evidence of Ms Buteux-Wheeler that the breach of the FSR standard in the current development proposed does not meet the objective (a) of the standard. I have formed this view for the following reasons:

1. I concur with Ms Buteux - Wheelers that an analysis of compatibility is not limited to analysis of the built form, but also requires an assessment of the space surrounding built form, the size and configuration and relationship of lots. The proposal has the effect of reducing the separation between the built form of the current dwelling, and the adjacent houses. This impact is a result of the non-compliance with the development standard.

The dominant characteristic of the streetscape of the local area is the space provided around the built form to reduce its scale and allow for landscaping and wide treed verges. The reduced built upon area that is characteristic in the vicinity is a result of large lot sizes with reduced building footprints.

The objective of the standard requires development be compatible with the size of the land, and its context. The reduction in separation does not achieve this objective.

2. The FSR request references the incorrect control and objective. Whilst this may be a clerical error, it results in the FSR request not addressing the compliance with the objectives directly and goes to whether the request can be seen as well founded.

The applicant has not demonstrated that the breaches of the development standard are justified.

48. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is not consistent with objective (a) of the FSR standard and, given the above reasons, the variation is not in the public interest. In forming this conclusion I note that a consideration of consistency with the objectives of the standard, as required under cl 4.6(4)(a)(ii), and a determination that the noncompliance with the standard would be in the public interest, is different to the consideration of achievement of the objectives of the standard under cl 4.6.(3)(a) where the applicant is required to demonstrate the objectives are achieved, despite noncompliance (see Moskovich v Waverley Council [2016] NSWLEC 1015 at [54]). I have concluded that the objectives are not achieved by the proposal.

Is it established that compliance is unreasonable or unnecessary?

49. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.

50. In this appeal the applicant has sought to utilise the Wehbe test 1, that the objectives of the standard are achieved notwithstanding non‐compliance with the standard.

51. In summary, as detailed in the FSR request, the applicant relies on the following to establish that strict compliance with the standard is unreasonable or unnecessary:

• It is unnecessary to require strict compliance with the development standard as it is demonstrated that the development meets the qualitative objectives of the numerical standard.

• The site is of a sufficient size and shape to accommodate the development without detrimental impacts

• The development may be carried out with compatibility with the character of the visual catchment

• It is unreasonable that a minor variation cannot be accommodated under the circumstances to permit an otherwise meritorious application

52. Mr Hudson’s submission is that the applicant’s reliance on Wehbe test 1 requires a finding that the development meets the objectives of the floor space control, which Council submits the development does not.

Findings

53. Given the evidence, and the findings at [48] that the development is not consistent with objective (a) of the FSR standard, I find that I cannot be satisfied that the applicant’s written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP.

Are there sufficient environmental planning grounds to justify the variation?

54. In summary the FSR request relies on the following justification to establish there are sufficient environmental planning grounds to justify variation of the standard:

• There is demonstrated capacity on the site to the support the alterations and additions, notwithstanding the variation to FSR

• Under the State Complying Development provisions, the FSR could be achieved, but with a rear setback of 3m.

• The building separation between the subject dwelling and the neighbouring dwellings is substantial. There are no issues of privacy arising from the development due to the separation and existing screen planting and fencing.

• The resulting building will be complementary to the scale and built form of neighbouring development through good design.

• The development produces a better planning outcome because it allows for the better and more efficient use of land and buildings for the improvement of residential amenity.

55. Mr Sarich’s oral evidence was that the proposal is also supported by the following environmental grounds:

1. The current design of the sunroom provides a better planning outcome than an extension that provided a compliant rear setback as it allows the retention of a contiguous open space area to the side of the home. A compliant scheme, as it would be located mid-way along the side elevation, would divide the open space making it less useable;

2. The sunroom will improve the amenity of the existing residents than the current underutilised open space areas; and

3. The extension will improve access of the dwelling to winter sun.

56. In the alternative Ms Buteux-Wheeler argues that the objectives of cl 4.6 are to seek a better outcome than would be achieved by a development compliant with cl 4.4 Floor space. It is her conclusion that the current proposal provides an option that may achieve some outcomes that are better for the owners, but does not sufficiently demonstrate that varying the standard will provide a better outcome from the development.

Findings

57. Having reviewed the evidence, I accept the evidence of Ms Buteux-Wheeler that the current proposal is not a better outcome than would be achieved by a development compliant with cl 4.4 Floor space. I am not satisfied that the applicant has demonstrated that there are sufficient environmental planning grounds to justify the exceedance of the FSR standard. As a result I find that the test in clause 4.6(3)(b) of the LEP is not met.

Conclusion

58. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the preceding reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application, and the application must fail.

59. As a result of the failure to meet the precondition, I am not required to assess the remaining merit issues in the proceedings.

Orders:

60. The orders of the Court are:

1. The objection pursuant to cl 4.6 of the Ku ring gai Local Environmental Plan 2015 is not sustained;

2. The appeal is dismissed;

3. Development application DA/0309/16 for the enclosure of a laundry/ patio landing to create a ground floor study and the addition of a ground floor sun room off the existing meals room at 2 Carina Road, Turramurra is refused;

4. The exhibits are returned with the exception of exhibit 1, and the Class 1 application bundle filed on 28 October 2016.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 01 March 2017