Winphil Pty. Limited v Central Coast Council

[2019] NSWLEC 1240

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Winphil Pty. Limited v Central Coast Council [2019] NSWLEC 1240
Hearing dates:	Conciliation conference on 1 May 2019
Date of orders:	04 June 2019
Decision date:	04 June 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See orders at [23] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Winphil Pty. Limited (Applicant) Central Coast Council (Respondent
Representation:	Counsel: J Lazarus (Applicant) S Nash (Respondent) Solicitors: K Rodgers, Brock Partners Lawyers (Applicant) M Domingo, Central Coast Council (Respondent)
File Number(s):	2018/87605
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 Act1979 (EPA Act) against the refusal of Development Application No. 51209/2016 for a three storey mixed use development including a kiosk, café, basement parking and six residential apartments (the proposal) at 77 Marine Parade, MacMasters Beach (the site) by Central Coast 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 1 May 2019. 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 Gosford Local Environmental Plan 2014 (LEP 2014).

Contravention of the height of buildings development standard

6. The proposal has a maximum height of 10m and the height of building development standard for the site is 8.5m (cl 4.3 of LEP 2014).

7. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard.

8. Clause 4.6(4) of LEP 2014 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] 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) 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.

9. 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(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2014 (Initial Action at [29]).

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

10. 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:

(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

11. 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]).

12. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (“Wehbe”) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

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. 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).

13. 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]).

14. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the contravention of the height of buildings development standard for the site is a result of previous excavation of the site which has lowered the existing ground level and the proposal would have a height consistent with 8.5m if it was measured above the natural ground level prior to the excavation of the site. Furthermore, the proposal will not result in adverse amenity impacts on surrounding development as a result of the contravention of the development standard.

15. 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]).

16. The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action at [25]).

17. 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 response to the excavation of the site because the proposal is consistent with a height of 8.5m above the former natural ground level prior to the excavation carried out on the site. I am satisfied that justifying the aspect of the development that contravenes the development standard on this basis 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

18. 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]).

19. The objectives of the height of buildings development standard at cl 4.3(1) of LEP 2014 are as follows:

(a) to establish maximum height limits for buildings,

(b) to permit building heights that encourage high quality urban form,

(c) to ensure that buildings and public areas continue to receive satisfactory exposure to sky and sunlight,

(d) to nominate heights that will provide an appropriate transition in built form and land use intensity,

(e) to ensure that taller buildings are located appropriately in relation to view corridors and view impacts and in a manner that is complementary to the natural topography of the area,

(f) to protect public open space from excessive overshadowing and to allow views to identify natural topographical features.

20. I am satisfied that the proposal is consistent with these objectives because the proposal is consistent with a height of 8.5m above ground level relative to the topography that forms the context of the site.

21. The site is zoned B1 Neighbourhood Centre under LEP 2014. The zone objectives are as follows:

• To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

• To allow for an increased residential population in neighbourhood centres where land is not required to serve local needs.

• To ensure that development is compatible with the desired future character of the zone.

• To promote ecologically, socially and economically sustainable development.

• To ensure that local nodes and neighbourhood centres are recognised as small-scale centres that provide a range of services and facilities commensurate with their local population catchments and that development is of a scale that is appropriate to meet local needs.

• To encourage residential development as either stand alone development or as part of mixed use development in local nodes and neighbourhood centres, while retaining opportunities for retail and service activities to serve the population in the immediate locality.

22. I am satisfied that the proposal is consistent with the zone objectives because it provides small scale retail uses combined with residential development.

Orders

23. The Court orders:

1. The applicant is granted leave to amend Development Application No. 51209/2016 to rely upon the following amended plans and documents:

Document	Prepared by	Dated
Plans – AP02 Issue J	Mosca Pserras Architects	as at April 2019
Elevations/Sections – AP03 Issue I	Mosca Pserras Architects	as at April 2019
Erosion and Sedimentation Control Plan – 21718_DA03	SRB Consulting Civil Engineers	as at April 2019
Letter, together with the following plans: a) MPA Plans AP02; b) B85 Vehicle Space 15 Exit Swept Turning Path; c) B85 Vehicle Space 16 Exit Swept Turning Path; and d) B85 Vehicle Turning Around Swept Turning Path	Varga Traffic Planning	16 April 2019

2. The appeal is upheld.

3. Development Application No. 51209/2016 for a Mixed Use Development comprising a kiosk, café, basement parking and residential apartments at 77 Marine Parade, MacMasters Beach NSW is approved subject to the conditions of consent at Annexure A.

……………………….

Commissioner O’Neill

Annexure A 

Plans

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Amendments

05 June 2019 - Representation amended to include Counsels