WZSydney Pty Ltd v Ku-ring-gai Municipal Council

[2023] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation:

WZSydney Pty Ltd v Ku-ring-gai Municipal Council [2023] NSWLEC 1065

Hearing dates:

24, 25 October 2022

Date of orders:

14 February 2023

Decision date:

14 February 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed,

(2) Development Application DA/479/21 seeking consent for demolition of existing structures and construction of a residential flat building comprising 21 unit, basement carparking and associated landscaping at 1446 Pacific Highway, Turramurra (Lot 1 DP 259533) is determined by the refusal of consent,

(3) Exhibits are returned with the exception of Exhibits 1, A, B, F and G.

Catchwords:

DEVELOPMENT APPLICATION: proposed residential flat development – interpretation of ‘site area’ for the purpose of determining applicable development standards – whether the proposed variation to the height and floor space development standard should be granted – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4, 1.5, 4.14, 4.19, 8.7

Ku-ring-gai Local Environmental Plan 2015 cll 4.3, 4.4, 4.6, 6.6

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248

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

North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144

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

XLJ Investment Group Pty Ltd v Ku ring gai Council [2020] NSWLEC 1607

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

WZSydney Pty Ltd (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
G Farland (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/55828

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicant, WZSydney Pty Ltd, against the deemed refusal of their development application (DA/479/21) by Ku-ring-gai Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). As amended, the development application seeks consent for demolition of existing structures and construction of a residential flat building comprising 21 units, basement carparking and associated landscape works. These works are proposed on land described as 1446 Pacific Highway (Lot 1 DP 259533). The development application also seeks approval for the use of the existing communal open space on 1454 Pacific Highway (SP 89317). Under the development application works are also proposed at 1 Lamond Drive (SP 88529), namely removal of the majority of the existing concrete driveway, provision of landscaping, the construction of a new walkway and construction and use of part of the driveway to access the proposed residential development.

Issues in dispute

2. Despite the amendments to the development application and the provision of additional information, the Respondent maintains the development application warrants refusal.

3. The key issues in the proceedings are:

1. determination of the site area for the relevant height and floor space ratio (FSR) provisions of Ku-ring-gai Local Environmental Plan 2015 (LEP 2015)

2. dependant on (1) determine whether the proposed development breaches the building height, floor space ratio and minimum lot size standards provided at cll 4.3, 4.4 and 6.6 of the LEP 2015 respectively.

3. To the extent that the preceding standards are breached, whether the written requests seeking a variation to those standards satisfy the preconditions of cl 4.6 of LEP 2015.

The Site

4. The determination of site area is a matter of contention between the parties and the evidence, submissions and findings on this issue commence at [21]. However, for the purpose of providing context to the development application, and the works for which consent is sought, the following details the Applicant and Respondents broad positions.

5. The Statement of Environmental Effects (SEE), as amended, describes the site as follows (emphasis original):

“The proposed building is intended to become and integrated component of the recently completed development on the surrounding site known as 1444-1454 Pacific Highway Turramurra or Strata Plan 89317. That development is known as DA0605/11.

Strata Plan 89317 is burdened by a number of easements which benefit the allotment known as 1446 Pacific Highway to facilitate its integration as part of the broader development.

…

The proposed development involves some important structures within Strata Plan 89317 to facilitate pedestrian and vehicular egress from the proposed building to the Pacific Highway and also areas of common open space to the west.

The proposed development also includes works and use of parts of the common property of Strata Plan 88529 (1 Lamond Drive), this is confined to the areas where 1446 [Pacific Highway] benefits from various easements over Strata Plan 88529.

For the purposes of defining the site, the Dictionary of the LEP provides the following definition.

… area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

The proposed development occurs on three separate lots, and so those lots must be included, to some extent, when describe [sic] the site to which the application relates. However, it is appropriate within the context of this definition to determine whether all or part of those three lots should be included, as follows:

- Lot 1 [DP 259533] is the site of most of the proposed new five- storey building and all of this lot must be included for the purpose of the site area definition in the Dictionary to the LEP.

- Whilst the proposed development includes works and use of parts of the common property of Strata Plan 89317 (144-1454 Pacific Highway), this is confined to the areas where 1446 benefits from various easements over Strata Plan 89317. Notwithstanding this, one of the easements which benefits 1446 is only for ‘light and air’ which is not an area where the development will be “carried out” as this merely serves to provide a buffer and so should not be included in site area. Accordingly, only the areas of Strata Plan 89317 where the proposed development is to be “carried out” (which excludes the easement for light and air) should be included for the purpose of the site area definition in the Dictionary to the LEP.

- Whilst the proposed development includes works and use of parts of the common property of Strata Plan 88529 (1 Lamond Drive), this is confined to the areas where 1446 benefits from various easements over Strata Plan 88529, and so only this part of the common property of Strata Plan 88529 should be included for the purpose of the site area definition in the Dictionary to the LEP.”

(Exhibit E, Amended Statement of Environmental Effects, p 8.)

6. The Applicant therefore defines the site of the proposed development as follows:

(Figure 1: site plan A002 rev D)

7. In the alternative, the Respondent submits that the Applicants nominated site area does not comply with the definition in LEP 2015, and that by applying the wrong site area, the Applicant has wrongly identified the height standard that applies. In brief, the Respondent argues that for the purposes of determining the applicable height standard pursuant to cl 4.3 of LEP 2015, the site area of the development application is under 2400m² and therefore the maximum building height standard is 11.5m, rather than the 17.5m standard the Applicant asserts applies.

8. Further, the Respondent asserts that in relation to the variations sought to the development standards for floor space ratio (FSR), the Applicant has not applied to the provisions and exclusions at cl 4.5 of LEP 2015 correctly. In brief, the Respondent argues that for the purposes of determining the FSR standard pursuant to cl 4.4 of LEP 2015, the site area is 930.8m², meaning the quantum of variation to the standard sought by the Applicant is significantly more than that asserted in the Applicant’s written request.

Context

9. The site and the existing adjoining development are located on the southern side of the Pacific Highway and are part of a precinct nominated for high density residential development. Both 1444-1454 Pacific Highway and 1 Lamond Drive contain residential flat developments which are characteristic of the locality and the pattern of redevelopment in the locality from previous large residential dwellings to higher forms of residential development.

10. The context of the site is also characterised by remnant Blue Gum High Forest.

Public Submissions

11. The development application was notified by Ku-ring-gai Council between 1 November to 29 December 2021. Four submissions were received in response to notification and the issues raised in the submissions can be summarised as follows:

1. loss of daylight within the lower units of Building E, 1454 Pacific Hwy. The submissions note that these units currently receive solar access only in the morning.

2. overshadowing impacts to the existing units at 1 Lamond Drive.

3. privacy impacts to units in Building E, 1454 Pacific Hwy from overlooking arising from units proposed at the rear of the new residential building.

4. privacy impacts to units in 1 Lamond Drive from side facing windows and balconies in the new residential building.

5. construction noise and amenity impact on adjoining properties.

6. loss of outlook for existing units adjoining the site due to the proposed tree removal.

7. that the strata body 89317 (1444-1454 Pacific Highway) do not agree to their allotment being utilised to secure approval for the proposed development.

8. assertions that the developer/ building of the development at 1444-1454 Pacific Highway has not resolved defects nor installed a compliant fire safety system.

12. The amended development application was also notified by Ku-ring-gai Council from 12-26 August 2022. Four additional submissions were received which raise the following additional issues:

1. potential for traffic congestion in Lamond Drive from the proposed development.

2. traffic safety impacts to Pacific Highway.

3. a lack of certainty and transparency regarding the use of easements

4. potential for structural impacts to 1 Lamond Drive arising from the proposed development

5. objection to the construction of the driveway on 1 Lamond Drive.

6. that there are potential impacts to the fire safety of Building E as access for emergency services is blocked by the proposed use of Kirawa Close.

7. potential for impact to the stability of the existing trees in the Blue Gum High Forest arising from the construction process of the proposed development.

13. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

Expert Evidence

14. The Court was assisted in the proceedings by town planning and urban design experts, Aaron Sutherland and Alan Cadogan for the Applicant and Brodee Gregory and Kerry Hunt for the Respondent. The joint reports of these experts were tendered as Exhibit 3 in the proceedings. In addition to their joint report the experts were called for cross examination.

What is the development proposed in the development application?

15. The EPA Act defines development at s 1.5 as any of the following:

(a)  the use of land,

(b)  the subdivision of land,

(c)  the erection of a building,

(d)  the carrying out of a work,

(e)  the demolition of a building or work,

(f)  any other act, matter or thing that may be controlled by an environmental planning instrument.

Development proposed on 1446 Pacific Highway (Lot 1 DP 259533)

16. The following is proposed in the development application to occur on 1446 Pacific Highway:

• demolition of existing structures

• construction of a residential flat building comprising 21 units (being 3 one bedroom units, 11 two bedroom units and 7 three bedroom units),

• basement carparking (including a 3-level basement containing 26 car spaces, storage, air conditioning condensers, waste storage and a service/ wash bay),

• communal open space within the roof top terrace; and

• associated landscape works.

17. Pursuant to s 4.19 of the EPA Act consent which authorises erection of a building (in this case a residential flat building) is sufficient to authorise the use of the building.

Development proposed on 1 Lamond Drive (Lot 1 SP 88529)

18. The following is proposed in the development application to occur on 1 Lamond Drive:

• partial demolition of the existing driveway within the common property of 1 Lamond Drive.

• installation of landscaping in the area of driveway demolition.

• Construction and use of a suspended boardwalk connecting the proposed residential flat building to the existing path and stairs on 1 Lamond Drive and ultimately the Pacific Highway.

Development proposed on 1444-1454 Pacific Highway (SP 89317)

19. The following is proposed in the development application to occur on 1444-1454 Pacific Highway:

• construction and use of a suspended boardwalk connecting the new residential flat building to the existing path and stairs which exist within the common property of SP 89317.

• construction and use of a suspended boardwalk within the common property of SP 89317 connecting the proposed residential flat building to the new suspended boardwalk on the common property of 1 Lamond Drive to provide access to the Pacific Highway.

• construction and use of vehicular access connecting the proposed residential flat building, via the common property of SP 89317 and SP 88529, to the Pacific Highway.

• construction of stairs connecting levels of the proposed basement carparking and extending to ground level within the common property of SP 89317.

20. Applying the definition of development at s 1.5 of the EPA Act, I am satisfied that development is proposed on each of 1446 Pacific Highway (Lot 1 DP 259533), 1444-1454 Pacific Highway (SP 89317) and 1 Lamond Drive (SP 88529) under the development application.

What is the applicable height of building control?

Background

21. As noted in the preceding, a principal issue in dispute in the proceedings is how the definition of site area in LEP 2015 applies to two development standards, maximum building height (cl 4.3 of LEP 2015) and FSR (cl 4.4 of LEP 2015).

22. Site area is defined in LEP 2015 as follows:

site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

Note—

The effect of this definition is varied by clause 4.5 for the purpose of the determination of permitted floor space area for proposed development.

23. Relevant to the maximum height standard, each of the properties where development is proposed are located, are in Area 1 under LEP 2015. Clause 4.3 Height of Buildings in LEP 2015 is as follows:

4.3 Height of buildings

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

(a) to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b) to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c) to enable development with a built form that is compatible with the size of the land to be developed.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A) Despite subclause (2), the height of a building on land in Zone R4 High Density Residential where the site area is within a range specified in Column 1 of the table to this subclause must not exceed the height specified opposite in Column 2 of the table.

Column 1

1,800 square metres or less

More than 1,800 square metres but less than 2,400 square metres

Column 2

11.5 metres

14.5 metres

(2B) Despite subclause (2), the height of a building used for the purposes of commercial premises on land identified as “Area 1” on the Height of Buildings Map must not exceed 26.5 metres.

Applicant’s evidence and submissions

24. Applying this definition to the development for which consent is sought in the development application, the SEE asserts, and the Applicant submits, that the site area for the application is 6,410.0m² under the development application as development is proposed to occur on each of the three lots, see [15]-[19]. I note the reasoning for this calculation is extracted at paragraph [4].

25. Relevantly, as the Applicant’s calculation of site area exceeds 2,400m², the maximum height standard is not reduced pursuant to cl 4.3(2A) of LEP 2015. On this basis the Applicant applies a site area of 6410m² to cl 4.3 of LEP 2015 and determines that the applicable height standard is 17.5m. The development application seeks to vary this standard utilising the provisions of cl 4.6 of LEP 2015 and has submitted a written request seeking to justify the variation to the standard.

Respondent’s evidence and submissions

26. In the alternative, the Respondent argues that the Applicant relies too heavily on the definition of ‘site area’ in LEP 2015 to expand the meaning of ‘land’ in the operation of cl 4.3 Height of Buildings and the determination of the relevant height standard. The Respondent submits that the ‘site area’ applicable to cl 4.3 of LEP 2015 is not the site area of the development determined by the Applicant, but the site area of the land on which ‘building’ is to be situated. Applying this approach, the Respondent argues:

‘Here, the residential flat building is situated on the parcel of land that is 1446 Pacific Highway. It is not situated on 1454 Pacific Highway or 1 Lamond Drive. The site area of 1446 Pacific Highway is 930.8m², well below the threshold of 1800m². Accordingly, by cl 4.3(2A), the maximum building height is 11.5m.’

(Respondents written submissions 25 October 2022)

27. On this basis the Respondent applies a site area of 930.8m² to cl 4.3 of LEP 2015, restricting it to the area of 1446 Pacific Highway, being the land on which the residential flat building is proposed to be constructed. Applying this area, the Respondent asserts that the applicable height standard is 11.5m.

Evidence

28. The experts in the proceedings considered the Respondent’s contention that the Applicant’s nominated site area does not comply with LEP 2015. Their evidence in relation to the determination of the applicable height standard is summarised in the following.

29. Mr Sutherland’s evidence is that the relevant site area for the purposes of determining the applicable height standard is determined by applying the definition of ‘site area’ in LEP 2015. Importantly, he determines this area by firstly including all of the area of 1446 Pacific Highway and secondly, the areas of both 1444-1454 Pacific Highway and 1 Lamond Drive where development is proposed to be carried out and easements in favour of 1446 Pacific Highway are in place. He does not include all of the lot areas of 1444-1454 Pacific Highway and 1 Lamond Drive. Mr Sutherland’s calculations result in a site area of 6,410m². Applying the text of the provision of Mr Sutherland concludes that this site area exceeds the restriction cl 4.3(2A) and it therefore does not apply, leaving the applicable height standard that which is mapped, being 17.5m.

28. In contrast Ms Gregory's evidence is that a more appropriate and conservative approach to the interpretation of cl 4.3 of LEP 2015 would be to restrict the extent of site area to 930.8m², that being the area of the lot (1446 Pacific Highway) on which the residential flat building is to be erected. Accordingly, pursuant to subcl (2A), the maximum height standard that applies on Ms Gregory's evidence is 11.5m.

29. Alternatively, Ms Gregory considers it would be an acceptable approach to broaden the application of site area to include the area of land on which all physical building works are proposed in the development application. Applying this approach Ms Gregory determines the site area would be some 1221m². Accordingly, pursuant to subcl (2A), the maximum height standard that applies on Ms Gregory's evidence remains 11.5m.

Submissions

32. Mr Galasso, for the Applicant, submits that the enquiry required by subcl (2) of cl 4.3 is to reference the ‘Height of Buildings Map’, locate the parcel of land, and that the nominated height standard on the ‘Height of Buildings Map’ is the relevant maximum height for a building on that land. Applying this to the subject development application results in a maximum height standard of P (17.5m) in the portion of the site fronting Pacific Highway. This is the relevant maximum height standard.

33. Mr Galasso submits that it is then relevant to consider whether the exception at subcl (2A) to the height standard established by subcl (2) applies. He submits that applying the exception at subcl (2A) requires the determination of site area by application of the LEP definition. Mr Galasso argues that it is clear that on its terms cl 4.3 utilises the phrase ‘site area’ in subcl (2A) of the provision and that this is a defined term in the dictionary to LEP 2015. He submits that this definition must be applied. He notes that, importantly, this definition includes the area of any land on which development is carried out, including use pursuant to s 1.5 of the EPA Act, as part of site area. It is on this basis that Mr Galasso submits that the reasoning of Mr Sutherland, who incorporates those parts of 1444-1454 Pacific Highway and 1 Lamond Drive where development is proposed to the determination of site area, is correct. Applying Mr Sutherland’s site area of 6,410m² Mr Galasso concludes that the exception at subcl (2A) of cl 4.3 does not apply and the applicable maximum height standard is 17.5m.

34. As such in applying subcl (2A) Mr Galasso supports the approach taken by Mr Sutherland in the SEE and his evidence, namely that the Court would need to be satisfied that the site area of the proposal is either less than 1,800m² or within the range of 1,800m² - 2400m² in order for the maximum height shown for the land on the Height of Buildings Map of 17.5m to be adjusted down by the exception found at subcl (2A) of cl 4.3 in LEP 2015.

35. In the alternative, Mr Farland directs the Court to the HCA decision in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 (‘Ligon’) and its conclusion that a reference to land in planning instruments is a reference to the relevant parcel or allotment of land. Despite the fact the Applicant proposes development on, and defines that development application to include, the adjoining allotments of 1 Lamond Drive and 1444-1454 Pacific Highway, Mr Farland submits that is not the land to which the development relates for the purposes of subcl (2A). Rather, Mr Farland argues that the correct approach to cl 4.3 is to commence with determining what is meant by ‘building on land’, not by the determination of site area. He submits that the rule in cl 4.3(2) is that “the height of a building on any land is not to exceed the maximum height [shown] for the land [allotment/parcel] on the Height of Buildings Map” (emphasis added). (Transcript, 25 October 2022, p 28-29)

36. In his written submission Mr Farland states:

“63. The present case involves the following “buildings” situated on the following land to which the development applications “relate”:

a. a residential flat building on 1446 Pacific Highway;

b. suspended boardwalks on the common property of 1454 Pacific Highway;

c. a new elevated boardwalk on the common property of 1 Lamond Drive”.

(Respondent’s written submissions 25 October 2022)

37. I note that by reference to the architectural plans an elevated driveway and fire stairs from the basement carpark of the residential flat building are proposed to be constructed beyond the lot boundaries of 1446 Pacific Highway.

38. Having established the ‘buildings’ which form part of the development application by applying s 1.4(1) of the EPA Act, in his written submissions Mr Farland then restricts the words ‘the land’ in cl 4.3(2) to the land on which the residential flat building is proposed in the development application. He states:

“Of these [buildings] only the residential flat building raises concerns in the context of the building height standard. The words ‘the land’ in cl 4.3(2) refer to that “land” (as a physical entity) on which the residential flat building is situated: ie. 1446 Pacific Highway.”

(Respondent’s written submissions 25 October 2022)

39. Applying subcl (2A), on the basis that 1446 Pacific Highway has an area of 930.8m², Mr Farland calculates that the maximum height standard applicable is 11.5m as the relevant site area falls below 1,800m².

40. In response to Mr Galasso’s submissions, and the evidence of Mr Sutherland, Mr Farland argues the Applicant seeks to read the term site area into cl 4.3 as a means of expanding the ‘land’. He concludes:

“70. Clause 4.3 is the operative provision, and it refers to (in cl 4.3(2)) to the ‘height of a building’ on specific ‘land’ that is shown on the Height of Buildings Map. The carve out in cl 4.3(2A) similar(ly) refers to the ‘height of a building’ on ‘land’. The ‘site area’ is not the ‘site area’ of the development defined by the applicant but the ‘site area’ of the ‘land’ on which the building is situated.”

(Respondent’s written submissions 25 October 2022)

41. Finally, in response to the Respondent’s submissions in relation to Ligon Mr Galasso makes the following submissions:

“Ligon in fact has nothing to do with the concept of a parcel. Secondly, even if it did, Ligon does not substitute for the proper construction of the LEP. Thirdly, what's important to bear in mind is in North Sydney v Ligon the application in fact did not relate to use of the right of way, and that's to be contrasted with the circumstances in this case where the development application specifically includes the use of the right of way on 1454, specifically includes the use of 1 Lamond, specifically includes construction of built form on 1454, and 1 Lamond, specifically includes the use of 1454's common open space for passive recreation, both at the south and to the west of the subject site.

That is in contrast to the very last sentence of the extract in para 35 of these written submissions that says "When a development…be carried out." In the instance of this case we proposed to carry out the development on all of those areas, not only of the 1446 land, but also 1454, and also 1 Lamond. In many respects that's consistent to what the Court of Appeal did in Al Maha. You'll recall Al Maha fell over in terms of a s 34 because a plan said this is the future access across other land. The ratio in that case was that incorporated that other land, that is by reference - this is the last sentence of the extract from 35 - because there was an absence of landowner's consent the s 34 agreement promulgated through a consent, was in fact invalidated.

Here, in fact the rights of way simply give us a basis to assert in the application, or to include in the application, that the land to which the application relates is not limited to 1446, extends to certain parts of 1454 and 1 Lamond. I say certain parts because there's no part of the applicant's case that says this application relates to the balance of 1454 or the balance of 1 Lamond. We're not seeking authority to use that part of 1 Lamond Drive that is in Lamond. No part of any consent granted by this Court will involve an authority to use that part of 1 Lamond. It's only that limited strip. Otherwise, that's the position of the applicant.”

(Transcript, 25 October 2022, p 52-53)

Findings

42. Clause 4.3 Height of Buildings contains a development standard at subcl (2), as follows (emphasis added):

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings map.

43. There is no reference in cl 4.3(2) Height of Buildings, the operative provision, to the term ‘site area’.

44. Referencing the LEP Height of Buildings Map the portion of all the lots facing Pacific Highway fall within ‘Area 1’ and are nominated as ‘P’, corresponding to a maximum height of 17.5m, with the rear of the lots nominated as ‘L’, corresponding to a maximum height of 11.5m.

45. Subclause (2A) of cl 4.3 provides a limitation to the maximum height map, which introduces a reference to site area. That clause is as follows:

(2A) Despite subclause (2), the height of a building on land in Zone R4 High Density Residential where the site area is within a range specified in Column 1 of the table to this subclause must not exceed the height specified opposite in Column 2 of the table.

Column 1

1,800 square metres or less

More than 1,800 square metres but less than 2,400 square metres

Column 2

11.5 metres

14.5 metres

46. Site area is defined in the dictionary to LEP 2015 as that area land on which development is to be carried out, whether that includes the whole or part of one lot or more than one lot if they are contiguous.

47. I have read and considered the authorities referenced by the parties in their submissions. In addition, the decision Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 considered the clauses from the then applicable Environmental Planning and Assessment Regulation 2000 and stated:

“[26] Clause 49 employs the expression “land to which the development application relates” the meaning of which has been determined by the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 as “the topographical entity” or “the particular parcel of land” “on which it is proposed that the development, the subject of the development application, is to be carried out”.

…

[28] It is clear that those expressions are intended to convey what is conventionally known in a town planning context as the “development site”, meaning the parcel of land upon which the development is proposed to be carried out: Ligon. In a case (such as the present) where the proposed development is the erection of a building the development site is generally a wider concept than the other conventional planning concept of the proposed building’s “footprint on, or site occupation of” the development site. In other words, generally in such a case there will be parts of the development site that are not occupied by the building to be erected thereon, and which serve as its curtilage or grounds or gardens etc (This is not to deny the phenomenon of a building occupying the whole of the development site eg an office building in Sydney’s Central Business District).

[29] The simple, but important point, is that in its context, the expression “land to which a development application relates” embraces the conventional planning concept of “the development site”, and that concept is different from the conventional planning concept of “building footprint or site occupation” (although in the case of some development proposals, the two planning concepts can involve precisely the same area of land).”

48. Further, Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [89] included the following discussion on the land to which a development application relates:

“[89] … The development application seeks consent to carry out particular development on particular land. The development application must contain “a description of the development to be carried out” and “the address, and formal particulars of title, of the land on which the development is to be carried out” (cl 1(1)(b) and (c) of Sch 1 of the Regulation). Having identified the development and the land on which the development is to be carried out, the development application must contain “evidence that the owner of the land on which the development is to be carried out consents to the application” (cl 1(1)(i) of Sch 1 of the Regulation).”

49. As noted at [20] I am satisfied that under the development application development is proposed on each of 1446 Pacific Highway (Lot 1 DP 259533), 1444-1454 Pacific Highway (SP 89317) and 1 Lamond Drive (SP 88529).

50. I accept the submission of Mr Farland that applying cl 4.3(2) the height of any building must not exceed the height referrable on the Height of Buildings Map to that land, with the obvious exception being where the tests at cl 4.6 of the LEP 2015 are satisfied. However, I find that there are “buildings”, applying the definition at s 1.4(1) of the EPA Act, situated on the following land to which the development applications “relate”:

1. a residential flat building on 1446 Pacific Highway;

2. suspended boardwalks, an elevated driveway and fire stairs from the basement carpark are proposed to be constructed, on the common property of 1454 Pacific Highway;

3. a new elevated boardwalk on the common property of 1 Lamond Drive

51. On this basis I am not persuaded by Mr Farland’s submission that the ‘land’ in cl 4.3(2) is restricted to 1446 Pacific Highway, as the land on which the residential flat building is proposed in the development application is all three lots. Applying the definition of building in the EPA act:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

52. It follows that I am not persuaded that Mr Farland’s submission is correct, as factually that land is not limited to 1446 Pacific Highway given the building which constitutes the residential flat building extends into both 1444-1454 Pacific Highway and 1 Lamond.

53. Further, Mr Farland fails to explain why, in the context of cl 4.3(2) of LEP 2015, the term building is to be read narrowly to constitute only a residential flat building.

54. On this basis I am not persuaded by the reasoning which supports Mr Farland’s conclusion that that the relevant site area is 930.8m², or that applying subcl (2A) of cl 4.3 the maximum height standard applicable is 11.5m on the basis that the relevant site area falls below 1,800m².

55. I accept the submissions of Mr Galasso, summarised at [32]-[35], that the enquiry required at subcl (2) of cl 4.3 is to reference the Height of Buildings Maps, locate the parcel of land, and the nominated height standard on Height of Buildings Map is the relevant maximum height for a building on that land. I accept that subcl (2A) acts as an exception to the standard that would otherwise apply under subcl (2), where the criteria of the exception are met.

56. Referencing the LEP 2015 Height of Buildings Map, I find that the applicable height development standards that apply to the front portion of all the lots within the land are nominated as ‘P’, corresponding to a maximum height of 17.5m, with the rear of the land nominated as ‘L’, corresponding to a maximum height of 11.5m. No building works are proposed in the area of the site mapped as ‘L’ with a height limit of 11.5m.

57. Applying the preceding and the ordinary meaning of the words to the provision at cl 4.3(2) of LEP 2015, I am satisfied that the refence to ‘land’ is a reference to the land to which the development application relates, meaning the parcel of land upon which the development is proposed to be carried out. I accept and prefer Mr Galasso’s submissions on this basis.

58. Subclause (2A) of cl 4.3 operates to reduce the maximum height limit determined by subcl (2) where the site area falls within a nominated range. This subclause utilises the term site area, which I am satisfied is a reference to that term in the dictionary to LEP 2015. On that basis, I accept that the ‘land’ is that which is detailed by the Applicant, and summarised by the Applicant in their SEE as follows:

“- Lot 1 [DP 259533] is the site of most of the proposed new five- storey building and all of this lot must be included for the purpose of the site area definition in the Dictionary to the LEP.

- Whilst the proposed development includes works and use of parts of the common property of Strata Plan 89317 (144-1454 Pacific Highway), this is confined to the areas where 1446 benefits from various easements over Strata Plan 89317. Notwithstanding this, one of the easements which benefits 1446 is only for ‘light and air’ which is not an area where the development will be “carried out” as this merely serves to provide a buffer and so should not be included in site area. Accordingly, only the areas of Strata Plan 89317 where the proposed development is to be “carried out” (which excludes the easement for light and air) should be included for the purpose of the site area definition in the Dictionary to the LEP.

- Whilst the proposed development includes works and use of parts of the common property of Strata Plan 88529 (1 Lamond Drive), this is confined to the areas where 1446 benefits from various easements over Strata Plan 88529, and so only this part of the common property of Strata Plan 88529 should be included for the purpose of the site area definition in the Dictionary to the LEP.”

(Exhibit E, p 19.)

59. This approach results in a site area of 6410m² to be applied to subcl 2A. On this basis the restriction in height standards, related to the area of the site, at cl 4.3(2A) of LEP 2015 do not apply as the site area exceeds 2400m².

60. The development application proposes a maximum building height of RL 200.670, an exceedance of the applicable maximum height of 17.5m by some 2.62m. The development application includes a request pursuant to cl 4.6 of LEP 2015 to vary the height development standard.

61. Given the maximum height standard is breached, development consent cannot be granted except in accordance with cl 4.6(2) of the LEP 2015. Clause 4.6 provides, at (3) and (4):

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(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.

(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.

62. The consideration of the Applicant’s written request to vary the height standard is discussed in the following.

Should the variation to the maximum height standard be upheld?

63. The proposed residential flat building breaches the maximum height standard of 17.5m by some 2.62m. The height exceedance occurs in two areas, the first group of exceedances occur at the upper levels of units 301, 302 and 303 and from part of the lift overrun. The second area of exceedance is at the rear of the residential flat building in unit 203 on the second floor. This is shown visually in the following diagram.

64. The exceedances are described in the Applicant’s written request to vary the height standard as follows:

“Due to the steep fall of the site there are some very minor point encroachments as illustrated in the height plane diagram, with a maximum encroachment of 2.62 metres or 14.9% as illustrated in Figure 1 below.”

(Exhibit G)

65. It is well established that the state of satisfaction required by cl 4.6(4)(a) mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the cl 4.6 request. 

66. Clause 4.6(4)(a)(ii) requires consideration of the objectives of the zone and the objectives of the relevant development standards.

67. 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 for a variety of housing types within a high density residential environment.

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

- To provide for high density residential housing close to public transport, services and employment opportunities.

68. The objectives of the height standard at cl 4.3 of LEP 2015 are:

(a)  to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b)  to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

Compliance with the height standard is unreasonable or unnecessary

69. In seeking to establish that compliance with the height standard is unreasonable or unnecessary, the written request firstly relies on the first of the tests described in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”), that the objectives of the standard are met notwithstanding the contravention. The reasoning detailed in the written request can be summarised as follows:

- To ensure that the height of the development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres

• Notwithstanding the variation requested the proposed development is consistent with the DCP intent of five storeys on the subject site, a height which is reflective of the hierarchy of the centre.

• the variation to height is reflective of the site topography, in particular the steepness, and the need to achieve a sensible floorplate at each level.

• the front façade of the building, fronting the Pacific Highway, is below the height control

• The proposed development reflects the anticipated scale of the development of the site expressed in the planning controls.

- To establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity.

• The design of the development reflects this objective by reducing height as distance from the centre increases.

• The site is not located at the boundary of a height change, or an area of lower density development. The proximate properties are also subject to a 17.5m height limit.

• the proposed exceedances do not prevent the overarching transition in height within the centre.

- To enable development with a built form that is compatible with the size of the land to be developed.

• The size of the land to be developed in the subject development application is considerable.

• The development complements and integrates with the existing adjoining developments.

• The proposed development, and its scale, reflect the scale of development recently approved and constructed within proximity of the site. It is reflective of the desired future character.

70. The written request also provides the following further reasons to establish why strict compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case:

• that the exceedances are point encroachments which are balanced by areas of the building which sit under the height control.

• the proposal presents as a five storey scale to the adjacent Pacific Highway in a manner anticipated by DCP 2015, achieving contextual fit.

• the areas of non compliance are particularly minor along the edges of the building, with the greatest non compliance located centrally. This approach reduces the visual impact of the non compliance.

• The non compliance does not result in any meaningful additional overshadowing to adjacent properties.

• there are no adverse impacts in terms of privacy impacts to adjacent sites which arise from the exceedance. In particular the separation distances are generally consistent with, or exceed, those suggested by the Apartment Design Guide (ADG), or the design incorporates solutions such as the use of highlight glazing.

• The proposed variation allows for the most efficient and economic use of the land, which is located close to transport and services.

• Strict compliance with the development standard would result in an inflexible application of the control and would not deliver any additional benefits to the owners or occupants of the surrounding properties.

• Applying the principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (“Project Venture”) at [22]-[31] observers would not find the proposed development offensive, jarring or unsympathetic to its location and the development is compatible with its context.

Findings

71. I accept the arguments advanced in the written request establish that the objectives of the height standard are met, notwithstanding the variation to the standard, and that therefore compliance with the height standard is unnecessary in the circumstances of the development. The height of the proposed development is appropriate to the scale of the centre and is concordant with the height of the adjoining development. I accept and adopt the reasoning of the written request, summarised at [69] in this regard. Further, I accept that variation in height inherent in the proposed development does not prevent the achievement of the overall objective of the height control to establish a transition between the centres and any adjoining lower density or open space zones. Broadly, I accept that the built form of the proposed development is compatible with the size of the land to be developed and accept the reasons advanced in the written request.

72. I find I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of LEP 2015.

The environmental planning grounds are insufficient to justify the contravention.

73. The written request seeks to justify the contravention of the height development standard on grounds that it describes as environmental planning grounds. Those grounds can be summarised as follows. Note I have grouped these grounds to assist in legibility of the judgment:

Topography:

• the primary basis for the variation to the height control is as a result of responding to the particularly steep fall of the land.

• due to the particular site circumstances and the design of the proposal, eliminating those areas which breach the control would not result in a better planning outcome.

No adverse impact:

• the areas of breach will not be readily apparent in the public domain.

• the areas of breach do not result in any meaningful adverse impact to the adjoining properties.

Appropriate contextual fit:

• the proposal still presents as a five storey scale to the Pacific Highway and achieves an appropriate contextual fit with the adjoining development.

• Applying Project Venture, observers would not find the proposed development offensive, jarring or unsympathetic to its location and the development is compatible with its context.

Efficient use of the land:

• The proposed variation to the height control allows for the most efficient and effective use of the land to achieve a sensible response to the steep fall of the land and a practical internal floor layout.

• The variation allows for the provision of additional housing (when compared to a compliant development) in a suitable, well serviced, location with no additional adverse impact.

• the variation allows for the provision of a broader housing mix with the development providing a mix of 1, 2, and 3 bedroom apartments. Such diversity would not be possible in a compliant development.

• provision of additional housing in proximity to the centre and public transport promotes cycling and walking and a reduction in car use.

Findings

74. I am not satisfied that the written request demonstrates sufficient environmental grounds to justify the contravention of the height standard.

75. In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24], Preston CJ stated, that the “focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds”. Further he stated, “the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]”.

76. On this basis the elements for consideration in determining whether I am satisfied that there are sufficient environmental planning grounds are:

• firstly, whether the grounds advanced are environmental planning grounds,

• secondly, whether the environmental planning grounds advanced in the written request focus on the aspect or element of the development that contravenes the standard, or in the alternative promote the benefits that will be realised by the development as a whole,

• thirdly, I must be satisfied that the environmental planning grounds are “sufficient” to justify, or inform, the aspect or element that contravenes the development standard.

77. Firstly, I am not persuaded that the grounds advanced are, in all cases, environmental planning grounds as they are assertions that are not established by the facts of the application before the Court. For example, in the circumstances of this case it is not, in my view, correct to say that the height exceedance arises from the steepness of the land. It is true the site is steeply sloping, however a close review of the architectural plans demonstrates that the breaches arising in the majority from units 301, 302 and 303, and occurs from the desire for these units to have a second level comprising additional bedrooms and bathrooms, not from the steepness of the land. In my assessment, the building would more effectively respond to the topography (ie follow the fall of the land) without the additional floor area sought. In other words, these units, if smaller, could be better contained within the height standard. I accept that some of the height breach arises from the slope of the site, but it is not, in my view, a ground that supports the extent of breach sought. Further support for this conclusion is found in relation to the breach contained at the rear of the residential flat building in unit 203 on the second floor. Again, in my assessment, this breach occurs from a desire for increased floor space for this unit, not directly from the steepness of the land. For these reasons, I find that the steepness of the land/ topography ground is inadequate to justify the contravention of the height development standard.

78. The avoidance of impacts is an environmental planning ground, as it promotes “good design and amenity of the built environment”, one of the objectives of the EPA Act. However, in this case I am not persuaded that this is an environmental planning ground that is either quantitatively and/or qualitatively sufficient to justify the variation. In my view the written request does not establish that the lack of impacts arises from the breach of the height development standard so as to justify the breach. Further, even if there was such a link, I do not accept that a lack of impact is sufficient to justify the extent of the breach of the standard proposed in this development application. The lateral extent of the breach in the vicinity of units 301, 302 and 303 are in parts a whole floor and represents a material quantum of additional floor space. The same can be said for the additional extent of Unit 203. In my assessment, a lack of external impacts is not sufficient in this case to justify such a departure from the standard. For these reasons, the absence of impacts ground is inadequate to justify the contravention of the height development standard.

79. Broadly, the written request argues that the variation is consistent with the character envisaged by the planning controls and supports the contextual fit of the proposed building. I accept that achieving consistency in the streetscape and fit with character is an environmental planning ground: SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90]. However, in my view the reasoning advanced in this ground is inconsistent. The written request argues that the variation will not be perceived from the public domain, but then seeks to tether the portion of the proposed building which breaches the height to an argument of streetscape compatibility. In my assessment, the components of the proposed building which breach the height limit will not, given their location behind the facade leading edge, be visible in the public domain. In my assessment, this development application is not a circumstance where a height breach is responsive to character or the planning controls. In contrast, the written request acknowledges that the five storey character of the precinct is represented in the compliant height of the front façade and is therefore not tied to the portion of the building in breach of the height standard. In the alternative, to the extent that the written request relies on the fact that the height exceedance is not visible, I do not accept that the lack of visibility of the additional height is sufficient to justify what is a material breach of the height standard. For these reasons, the ground of appropriate contextual fit is inadequate to justify the contravention of the height development standard.

80. Finally, the written request advanced grounds which I have grouped broadly as directed to the efficient use of the land. The first part of that ground, the sensible response to the steep site and an efficient floor plate, fails for the reasons that the first ground fails. Namely, the design for two level apartments appears driven from a desire to achieve additional units or gross floor area (GFA) on the site, not from a sudden change in topography or to follow the existing slope of the land by stepping the building with it. It is evident that the upper levels of Units 303 and 302 are outside the maximum height plane and that exceedance is not tethered to the topography of the site. In my view, it is plain that Unit 303 and 302 could be smaller units on a single level, which is only relevant to the extent that, in my view, the written request fails to justify why the height standard should be varied to respond to the steep site when such a clear alternative exists.

81. In relation to the second part of this ground, that the exceedance promotes additional, or more diverse, housing in proximity to transport and services, I accept this is an environmental planning ground. However, this ground fails for two reasons. Firstly, there needs to be environmental planning grounds specific to the proposed development in its context that justify the breach of the height development standard. The breach is not tethered to a type of residential unit that is not otherwise provided for in the development. Secondly, to the extent that the proposed development results in the provision of well-located housing in a broad unit mix, that is a benefit arising from the development as a whole, not from the height breach. For these reasons, the ground of efficient use of the land is inadequate to justify the contravention of the height development standard.

82. Further, when looked at collectively I find I am not satisfied that the environmental planning grounds advanced in the written request are sufficient grounds to justify the contravention of the development standard.

83. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) of LEP 2015 and consequently there is no power to grant consent to the development application which does not comply with the maximum height control in cl 4.3 of the LEP 2015 and the application must fail.

What is the applicable FSR control?

Background

84. Clause 4.4 of LEP 2015 states:

4.4 Floor space ratio

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

(a)  to enable development 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,

(c)  to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai,

(d)  to ensure that development density provides a balanced mix of uses in buildings in the business zones.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

….

(2C)  Despite subclause (2), the floor space ratio for a building on land in Zone R4 High 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 1,800 square metres but not more than 2,400 square metres	1.0:1
1,800 square metres or less	0.8:1

….

85. Relevantly Mulpha Norwest Pty Ltd v The Hills Shire Council (No. 2) [2020] NSWLEC 74 (“Mulpha Norwest”) held that the applicable floor space ratio (FSR) control is calculated for the land on which the development is located (as set out in the relevant FSR map), rather than for the site area of the development. Applying subcl (2) of cl 4.4 the maximum FSR is that mapped under LEP 2015. Concordant with the maximum height standard, the FSR standard map provides a split in controls between the area fronting the Pacific Highway and at the rear of the sites. The northern part of the site has a mapped FSR standard of 1.3:1, the southern portion has a mapped FSR standard of 0.85:1.

86. Clause 4.4(2C) of LEP 2015 acts as an exception which applies where building on land in the R4 High Density Residential land falls within the nominated site area criteria. The exception provides that, despite subcl (2) which provided a mapped standard of 1.3:1 or 0.85:1, the FSR for a building on land in the R4 zone is reduced to 1.0:1 where the site area is between 1,800- 2,400 m² and 0.8:1 where the site area is less than 1,800m².

87. As detailed in [22] for the purposes of cl 4.4(2C) of LEP 2015, the LEP definition of ‘site area’ is modified by cl 4.5 of LEP 2015. That provision states:

4.5   Calculation of floor space ratio and site area

(1) Objectives The objectives of this clause are as follows—

(a)  to define floor space ratio,

(b)  to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to—

(i)  prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii)  prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii)  require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—

(a)  if the proposed development is to be carried out on only one lot, the area of that lot, or

(b)  if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area The following land must be excluded from the site area—

(a)  land on which the proposed development is prohibited, whether under this Plan or any other law,

(b)  community land or a public place (except as provided by subclause (7)).

(5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.

(6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

(7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out.

(8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings.

(9) Covenants to prevent “double dipping” When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.

(10) Covenants affect consolidated sites If—

(a)  a covenant of the kind referred to in subclause (9) applies to any land (affected land), and

(b)  proposed development relates to the affected land and other land that together comprise the site of the proposed development,

the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land.

(11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.

88. In Mulpha Norwest the Court held that the purpose of cl 4.5 of LEP 2015 is as an aid to construing the LEP, and in adopting the submissions of the Respondent, stated that:

“[44] There is an ascending hierarchy revealed by the composite definition and operative provision, being that the Site is determined by the whole of the lots that make up the site area. But when the site area is used to calculate the FSR, the site area must be adjusted so as to comprise only so much of the Site as is contained within the land to which the FSR applies or for any other reason under cl 4.5(4) or (6). The land to which the FSR applies is fixed and determined by the FSR Map, which is thus the controlling provision and the site area must yield to the controlling map.

[45] It follows that where the Site extends beyond land the subject of one FSR control into another, in order not to infringe the operative provision in the FSR control for the land, being the FSR Map, it is necessary to carry out separate FSR calculations for each part of the Site. Otherwise, a breach of the operative provision will occur if the GFA on that land shown in the FSR Map exceeds the permitted amount.

[46] Where the site area falls partly on land to which one FSR applies and partly on land to which another FSR applies, it is necessary to read the word “site” to mean “part of the site” and to read “building” to mean, consistently with the EPA Act definition, part of a building. Accordingly, that part of the building that sits on one part of the Site being the land to which one standard on the FSR Map applies must be calculated separately to the part of the building on land to which a different FSR applies.

[47] This is not to say that cl 4.5(3) should be ignored, as the Applicant says above at [22] is the Council’s position, but rather the words must be read in context having regard to this unusual situation in which the Site extends beyond the land shown in the FSR Map. It can be seen that the FSR Map respects cadastral boundaries at the time the map was prepared (agreed bundle at Tab 6, above at [6]). From this it might be inferred that the drafter probably did not anticipate that a site would not respect cadastral lots and that a site made up of registered lots would be affected by more than one FSR control. Indeed, the use of the words “lot” and “site” together in the definitional cl 4.5 is a clear indicator of this. Accordingly, some flexibility has to be applied to the word “site” in order to make sense of the provision: Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379 (Tovir) at [54]-[55].

The Applicant’s case

89. The Applicant, in their amended SEE, argues that the wording of the cl 4.5 of LEP 2015 supports the calculation of site area of the proposed development, for the determination of FSR, as being the sum of each of the lots on which significant development is proposed to be carried out. In this case, the Applicant argues, that would result in a total area of 14,779.20m², comprised of:

• 1446 Pacific Highway, Lot 1 DP 259533: 930.8m²

• 1444-1454 Pacific Highway, SP 89317: 9608.4m²

• 1 Lamond Drive, SP 88529: 4240m²

90. For the purposes of cl 4.5(3)(b) of LEP 2015 the Applicant has determined the total area of both 1444-1454 Pacific Highway and 1 Lamond Drive are areas of a lot on which the development is proposed to be carried out. I note that the relevant plan in the architectural set, drawing A301: FSR Site Plan, extracted at paragraph [92], nominates this area as “common property”. For example ‘Common property of 144-1454 Pacific Highway’. This term is repeated in the cl 4.6 written request to vary the FSR standard. But when read with the following extract of the cl 4.6 written request to vary the FSR standard, it is clear that the nominated numeric area is the area of the whole of each lot (emphasis added):

“Drawing A301 (which forms part of this request) shows the relative ‘site area’ break up for the common property of SP89317 (1444-1454 Pacific Highway), the common property of SP88529 (1 Lamond Drive), and all of Lot 1 DP 259533 (146 Pacific Highway), is:

- 10,907.8 square metres (northern part, subject to a maximum FSR of 1.3:1); and

- 3,871.4 square metres (southern part, subject to a maximum FSR of 0.85:1)

This is illustrated in Figure 2 below.

(Note: In a practical sense, the area of the common property of each strata plan ultimately equates to the same as the overall area of the strata plan because the areas of common property, beneath, above and around the buildings overlap and the combination ultimately equals the same areas as the site area, clause 4.5(5) of the KLEP applies here and ensures that no land area may be double counted.)”

(Exhibit F, p 8)

91. The fact that Mr Sutherland has included the totality of the area of 1444-1454 Pacific Highway and 1 Lamond Drive as site area for the purposes of cl 4.5(3) of LEP 2012 and the consideration of the exception at cl 4.4(2C) is clear from the surveyor’s report, Exhibit J, which indicates:

• Firstly, the area of the common property of any strata scheme is the two-dimensional land area of the originating parcel (Lot 1 DP 1247699), and secondly, that the area of Lot 1 DP 1247699 is 9608.4m².

92. The Applicant’s determination of site area for the purposes of cl 4.4 is demonstrated graphically below and is, 14779.2m² with 3,871.4m² of that area falling within the area mapped with a 0.85:1 FSR control and the remaining 10,907.8m² mapped with a 1.3:1 FSR control. (Exhibit F)

93. The Applicant then argues that from the site area determined to be applicable pursuant to subcl (3), cl 4.5 of LEP 2015 requires the exclusion of portions of that site area. The relevant subsections of cl 4.5 in dispute between the parties are subcl (6), regarding the term ‘significant development’, and subcl (8) which requires the exclusion of existing buildings. The remaining subclauses are not applicable in these proceedings. No exclusions from the site area result from applying subcll (4) and (5) as the proposed development is neither prohibited on the land nor is a strata lot.

94. The application of subcl (6) in these proceedings focuses in particular on, whether development on 1444-1454 Pacific Highway (SP 89317) and 1 Lamond Drive (SP 88529) each individually include “significant development”.

95. The Applicants amended SEE, and cl 4.6 written request to vary the FSR standard, argues that the proposed development on each of the three lots meets the definition of ‘significant development’, meaning the areas of these lots are not excluded by sub cl (6) of cl 4.5. The Applicant argues

Lot

Significant development

Lot 1 DP 259533

Lot 1 is the site of most of the proposed new five storey building. This is self evidently significant development.

The common property of Strata Plan 89317, commonly known as 1444-1454 Pacific Highway

The proposal includes the construction and use of a driveway for the sole vehicular access to the new building on the common property of Strata Plan 89317.

A previous development application DA/495/18 for a residential flat building on the site was the subject of NSW Land and Environment Court proceedings 2018/383752 XLJ Investment Group Pty Ltd v Ku ring gai Council. The Court held that the construction and use of a driveway for the sole vehicular access to the new building over Strata Plan 89317 constituted significant development.

This is also consistent with TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 where the Land and Environment Court said that excavation, the construction of a masonry stairway, the creation of new pathways and ramps; and the construction of a new sewer main and new drainage infrastructure, was sufficient to constitute significant development, and therefore required the inclusion of the lot in site are (at [96]).

The common property of Strata Plan 88529, commonly known as 1 Lamond Drive, Turramurra

The proposal also includes significant development on 1 Lamond Drive, that is the common property of Strata Plan 88529 as follows:

- removal of the entire(ty) of the existing expansive concrete driveway with the exception of a small element at the northern end near the front boundary;

- the comprehensive landscaping of the area where the concrete has been removed including compensatory Blue Gum High Forest plantings;

- Construction of a new elevated walkway which is also required for fire egress purposes from the proposed new building;

- the use of the new elevated walkway for occupants to access the Pacific Highway; and

- the construction and use of a part of the driveway which is necessary to facilitate the sole vehicular access to the new building.

A previous development application DA/495/18 for a residential flat building on the site was the subject of NSW Land and Environment Court proceedings 2018/383752 XLJ Investment Group Pty Ltd v Ku ring gai Council. The Court held that the construction and use of a driveway for the sole vehicular access to the new building over Strata Plan 89317 constituted significant development.

This is also consistent with TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 where the Land and Environment Court said that excavation, the construction of a masonry stairway, the creation of new pathways and ramps; and the construction of a new sewer main and new drainage infrastructure, was sufficient to constitute significant development, and therefore required the inclusion of the lot in site are (at [96]).

(Exhibit F, p 6-7)

96. Recognising that the mapped FSR standard varies over these lots, and applying the decision in Mulpha Norwest the cl 4.6 written request to vary the FSR standard determines the site area applicable to each of the FSR standards as follows:

FSR zone	Site Area
Northern zone	1.3:1	10,907.8m²
Southern zone	0.85:1	3871.4m²
Total	14779.2m²

(Exhibit F, p 11)

97. The Applicant then applies subcl (8) which requires the GFA of any existing or proposed buildings within the vertical projection of the boundaries of a site to be determined. The joint report of the planning experts includes the Applicant’s calculation of the existing GFA as follows:

1. 1444-1454 Pacific Highway:

• existing GFA of 8118.96m² in the area mapped with an FSR standard of 1.3:1

• existing GFA of 896.39m² in the area mapped with and FSR standard of 0.85:1

2. 1 Lamond Avenue:

• existing GFA of 5,639.2m² in the area mapped with an FSR standard of 1.3:1

(Exhibit 3)

98. The proposed development has a GFA of 2,181.45m². (Exhibit F, p 11)

99. Based on a site area of 10,907.8m², for the portion of the site that the 1.3:1 standard applies, the Applicant’s assessment is that the development application has: firstly, a total proposed and existing GFA (required to be considered by subcl (8) of cl 4.5) of 15,939.61m² (FSR of 1.46:1) in the area mapped with a FSR control of 1.3:1 and secondly, represents a variation of 1,759.47m² or 12.4%.Furthermore, the Applicant determines that the development application proposes no variation to the FSR standard of 0.85:1 applicable to the rear of the sites.

100. In the joint report the experts considered the contention in relation to the calculation of the FSR exceedance proposed by the development application. Mr Cadogan’s evidence supports the calculation of site area and the determination of FSR detailed in the SEE and the cl 4.6 written request to vary the FSR standard. Mr Cadogan disagrees with the evidence of Ms Hunter that the works on 1444-1454 Pacific Highway and 1 Lamond are not significant development for the purposes of cl 4.5(6) of LEP 2015. He argues that these components of the development application are essential, stating:

“55.1 The egress stairs located beneath the driveway is essential to the fire safety of the proposed basements, which would not comply with the BCA if it were not provided.

55.2 The driveway construction is essential to the development, which would not comply with the Kur-ring-gai [sic]planning controls for carparking if it were not provided.

55.3 Ms Hunter uses a calculation of proportion of site area to support an argument of significance. In my view the proportion of site area occupied is a limited value to the characterisation of whether something is significant. By way of simple illustration, the front entry door of an ADG compliant 3 bedroom apartment occupies only a small proportion of the area of the apartment (around 0.8m² including its swing), less than 1% of the apartments 90m² - but without it, the apartment [is] unusable – thus proportion of area does not indicate significance. The parts of the development that are located over the boundary of 1446 Pacific Highway that I have noted above are essential elements of the design. Without vehicular access or fire egress the development would not meet regulatory requirements and could not proceed- accordingly it would be unreasonable to characterise them as not significant.”

(Exhibit 3, p 20)

101. In response to the Respondent’s contentions, Mr Cadogan asserts that the characterisation of a particular element as minor is not of consequence to the consideration of whether it is significant. On the reasoning outlined in the preceding he argues that the development, as a whole, cannot function without the proposed fire egress, vehicular access etc.

102. Further, Mr Cadogan argues the Court should follow the reasoning of Walsh C in XLJ Investment Group Pty Ltd v Ku ring gai Council [2020] NSWLEC 1607 (“XLJ Investment”) which held the following constituted significant development for the purposes of subcl (6) of cl 4.5 of LEP 2015:

“[44] I now turn to the interpretation of “significant development” for the purposes of the interpretation of site area under cl 4.5 of KLEP. The authorities provided to the Court included reference to the downside of a move to “closely define” the term “significantly” in the phrase “significantly affect the environment” now at s 5.7 of the EPA Act (see Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155; [1989] NSWLEC 19 [163]). The need, in that instance, to assess the facts constituting the environment and the activity and its likely effect on that environment in the circumstances is emphasised. Nonetheless, for me, some guidance is provided in Oshlack v Richmond River (1993) 82 LGERA 222, p19 (‘Oshlak’), where it is indicated “significantly” has been held to mean “important”, “notable”, “weighty” or “more than ordinary”.

[45] I do not see the proposed large areas of communal space within SP 89317, which would be available for passive recreation by occupants of the proposed RFB, could be characterised as being important or weighty aspects of the proposal and, for me, significant development. That is to say, these passive recreation areas, which make up a very significant proportion of the supplementary land, would not of themselves qualify as site area under cl 4.5. But this is not fatal to the Applicant’s argument. The proposed sole vehicular access to the RFB, also located substantially on SP 89317, is significant development. Because of the construction of the clause (cl 4.5(3)(b)) “the area of the (whole of SP 89317)” comes into the calculation of site area.

[46] The proposed development’s use of land within SP 88529 also includes significant development. The most obvious reason is because an important part of the sole access driveway for the RFB is located on this land. The proposed elevated boardwalk on 1 Lamond Drive is also significant development as it is necessary for fire egress (Ex LL). In my view the somewhat narrow area of BGHF planting on SP 88529 would not be significant development, of itself, but this is not relevant to the finding in regard to SP 88529 as site area.

[47] With these findings, which essentially align with the opinion of Mr Sutherland, the approach to the calculation of site area for the purposes of FSR assessment is available. See below [113] for the consideration of FSR issue more particularly, including in regard to the contravention of the FSR development standard at cl 4.4 of KLEP.”

103. Mr Sutherland, in the joint report, exhibit 3, relies heavily on the amended SEE and the cl 4.6 written request to vary the FSR standard. However, he makes the following additional arguement:

• that whether the use of the communal open space contained in the southern portion of 1444-1454 Pacific Highway is necessary to meet the development standard for communal open space is irrelevant.

• that the determination of ‘significant development’ for the purposes of subcl (6) of cl 4.5 does not rely on the inclusion of the communal open space on 1444-1454 Pacific Highway. Rather, he argues that the construction and use of the driveway within 1444-1454 Pacific Highway for the sole vehicular access to the proposed residential flat building is significant development and is sufficient that the entirety of the lot is included.

The Respondent’s case

104. In the alternative, the Respondent argues that the development application does not correctly calculate the FSR of the development as required by cll 4.4 and 4.5 of LEP 2015 on three grounds: the interpretation of ‘significant development’ at subcl (6) of cl 4.5; the meaning of the term ‘land’ in the exception at cl 4.4(2C); and finally the correctness of the nominated variation sought in the Applicant’s cl 4.6 written request to vary the FSR standard.

105. The Respondent argues firstly that the development does not contain significant development on either of 1 Lamond Avenue nor 1454 Pacific Highway and that neither the area of these lots, nor the area of these lots where development is proposed, should be included as part of the site area for the purposes of calculation of FSR, cl 4.5(6) of LEP 2015.

106. Secondly, the Respondent argues cl 4.4(2C) of LEP 2015 operates by reference to the legal criterion of ‘land’ and it specifies a maximum FSR for a building on land where the site area of that land is within a specified range. The only ‘building’, which is relevant for the purposes of determining FSR, is the residential flat building to be constructed on 1446 Pacific Highway. It is the site area of that land, and not the adjoining land where other development is proposed to be carried out, that must be calculated.

107. Thirdly, the Respondent argues that if the site area is calculated with the inclusion of just 1446 Pacific Highway (930.8m²), the development application proposes significant, and unprecedented, variation to the FSR control of 1.3:1. (I note, that applying the GFA to the site area of 930.8m² results in an FSR of 17.12:1 vs a control of 1.3:1).

108. In the joint report Ms Gregory notes that LEP 2015 contains no definition of ‘significant development’ and therefore such assessment is on merit. In her assessment, she argues that the Applicant’s determination of site area is inconsistent and that only those parts of the common property of 1444-1454 Pacific Highway and 1 Lamond Drive where development is proposed to be carried out should be included. Specifically, she argues that development is not proposed to be carried out on the areas of passive recreation in 1444-1454 Pacific Highway and that this area should be excluded.

109. More broadly, Ms Gregory’s evidence is that an assessment what constitutes significant development should be undertake both quantitatively and qualitatively as well as giving consideration to the significance of the proposed works in the context of the adjoining properties upon which they are located. Ms Gregory argues that taking this approach supports a conclusion that the works proposed, in the development application on 1444-1454 Pacific Highway and 1 Lamond Drive, are not significant and should not be included in site area for the purposes of cl 4.4 of LEP 2015.

110. Further, Ms Gregory argues that the calculations advanced by the Applicant in the cl 4.6 written request to vary the FSR standard are inconsistent with the nomenclature of ‘common property’ and are incorrect. Her evidence is that:

• the works in the development application that are proposed beyond the boundaries of 1446 Pacific Highway across both 1444-1454 Pacific Highway and 1 Lamond Drive affect approximately 201.8m² of the Applicant’s proposed site area of 14,779m².

• the physical works are contained within a localised small area of existing access easements.

• some of the physical works proposed seem unnecessary.

111. Ms Hunter concludes that in her view the proposed works on 1444-1454 Pacific Highway and 1 Lamond Drive are not significant in the context of the wider site. (Exhibit 3)

Submissions

112. Mr Farland’s submissions in relation to the determination of the correct FSR standard are broadly consistent with his submissions in relation to the determination of the applicable maximum height standard. They can be summarised as follows:

• that cl 4.4(2) of LEP 2015 is the operative provision and prescribes a maximum FSR for a specific building on particular land.

• in these proceedings, the relevant building is the residential flat building proposed to be constructed on 1446 Pacific Highway and therefore, the relevant land is 1446 Pacific Highway. It is the site area of this land, not the adjoining land where other development is proposed to be carried out that must be calculated.

• the rule in cl 4.4(2C) operats by reference to ‘land’ and it specifies a maximum FSR for a building on land where the site area of that land falls within a specified range. In the current proceedings, 1446 Pacific Highway is the relevant land, and it has an area of 930.80m².

• clause 4.5, as the definitional provision, must be read in the context of cl 4.4 of LEP 2015. So, whilst cl 4.5(3) contains a special definition of site area, that definition does not override the operative provision at cl 4.4(2). Further, the words ‘proposed development’ in cl 4.5 also do not override the word ‘land’ in the operative provision cl 4.4(2C). On this reasoning, cl 4.5(3)(b) has no application to the development application.

• there is no proposed development (in the sense of not already existing) about the use of any of the existing easements and the new driveway and walkway replace an existing driveway.

• that none of the work proposed outside of the lot boundaries of 1446 Pacific Highway would constitute floor space, which reinforces the conclusion that such development should not be included in the site area utilised for the purpose of calculating FSR.

(Respondents written submissions, 25 October 2022)

113. Mr Farland concludes that the site area of the land on which the building is situated is 930.8m². On this basis cl 4.4(2C) applies to reduce the FSR from that determined by the application of cl 4.4(2) of LEP 2015. Accordingly, pursuant to cl 4.4 of LEP 2015 the Respondent submits that the applicable FSR is 0.8:1.

114. In the alternative, Mr Galasso’s submissions are predominately consistent with the evidence of Mr Sutherland and the reasoning contained within the cl 4.6 written request to vary the FSR standard. Mr Galasso agrees that cl 4.5 is a definitional provision and that cl 4.4 is the operative provision. In relation to the approach to cl 4.4, Mr Galasso’s submissions mirror his submissions in relation to those on the application of the height, that is:

• That cl 4.4(2) directs to the FSR Map where the relevant parcel of land is identified, and the standard determined by reading of the nominated FSR on the map. In this case the standard is an FSR of 1.3:1 for the portion of the lots fronting Pacific Highway and 1 Lamond Drive, and 0.85:1 for the rear portion of these lots.

• Subclause (2C) of cl 4.4 operates to reduce the mapped standards where the nominated criteria are met, ie if the site area is 1800m² or less the FSR standard derived from subcl (2) is reduced to 0.8:1. If the site area is between 1800-2400m² the FSR standard derived from subcl (2) is reduced to 1.0:1. If the site area is larger than 2,400m² the provision does not apply.

• That the principle in Mulpha Norwest means that the FSR is applied to the land as it is mapped, not aggregated. He notes that the evidence of Mr Sutherland and the reasoning contained within the cl 4.6 written request to vary the FSR standard follow this principle.

• That, in contrast to the submissions of Mr Farland, he submits that cl 4.5(3)(b) ‘site area’ is directed to lots where development is proposed to be carried out and that the term development in this provision is that which is defined broadly at s 1.5 of the EPA Act. This provision is not directed solely to the erection of a building (nor constrained to a residential flat building).

• That in relation to subcl (6) of cl 4.5, development is again a reference to development as defined in s 1.5 of the EPA Act and relevantly includes use. There is no reasoning put forward by the Respondent to support the restricted view, advanced by Mr Farland, that it is limited to the erection of a building or the carrying out of works.

• Further, that significant development is not a defined term, and the reasoning and evidence of Mr Sutherland should be accepted by the Court to establish that significant development is proposed under the development application on both 1444-1454 Pacific Highway and 1 Lamond Drive.

115. However, in my reading of his oral submissions, Mr Galasso appears to depart from the approach of Mr Sutherland and the reasoning contained within the cl 4.6 written request to vary the FSR standard in relation to the quantum of the site area of both 1444-1454 Pacific Highway and 1 Lamond Drive which fall within the site area determined by cl 4.5(3) of LEP 2015. The relevant extract of his closing submissions follows:

“COMMISSIONER: … effectively I think what you're saying is if I'm satisfied a part of 1454 has significant development the whole lot goes in?

GALASSO: Yes. The answer to your question is yes in the affirmative but there's two aspects to it. Firstly in [subcl] (6) it's talking about not including a lot additional to a lot, so that's the answer to your question. Once you've got significant development the lot is in. The qualification to that is you go back to 4.5(3). In (3B) "If the proposed…be carried out". So you wouldn't include all of 1454 unless development was being carried out. But that's not significant development.

COMMISSIONER: And you've got the second test.

GALASSO: Yes, you've got the second test. I express it another way, you won't include 1454 to the extent that there is development to be carried out as to which see the easements plan, but that lot only qualifies if you've got significant development being undertaken. So one is a key that unlocks the door, that is the 4.5(6) is the key that unlocks the door, but once the door is open, it only remains ajar sufficient to incorporate the actual development in 4.5(3). So 4.5(3) is not qualified by significant development.”

(Transcript 25 October 2022, p 18)

116. In my view the approach Mr Galasso is outlining is that the site area determined by applying cl 4.5(3)(b) of LEP 2015, and in particular the words ‘the area of any lot on which the development is proposed to be carried out’, is that area of the lot where development (as defined by s 1.5 of the EPA Act) is proposed to be carried out by the development application, not the whole area of the lot. This distinction is given support, in my view, by the use of the different wording in subcl (a) and (b) as emphasised below and the objectives of the clause itself.

(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—

(a)  if the proposed development is to be carried out on only one lot, the area of that lot, or

(b)  if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

117. Applying the preceding approach would thereby not incorporate the totality of the site areas of both 1444-1454 Pacific Highway and 1 Lamond Drive in the manner adopted by Mr Sutherland (see [88]-[89]) but would restrict the area of these lots for the purposes of cl 4.5(3)(b), and ultimately the application of the exception at cl 4.4(2C), to the areas of the site where development is proposed under the development application. In other words, Mr Galasso’s oral submissions appear to contradict the evidence of Mr Sutherland, and the reasoning of the cl 4.6 written request to vary the FSR standard, that if a lot of the type described at cl 4.5(3)(b) contains significant development then the whole of that adjoining lot forms part of the site area. Accordingly, the approach outlined in Mr Galasso’s submission would result in a reduced quantum of site area determined by cl 4.5 and relevant to the determination of the applicability of the exception at cl 4.4(2C) of LEP 2015.

118. In relation to sub cl (6) and the question of significant development, Mr Galasso’s submission simply put is that if the consent authority determines the development on the additional lot is significant (in the terms of the provision), the exception does not apply, and the site area determined by applying subcl (3) stands.

Findings

119. Applying subcl (2) of cl 4.4 Floor Space Ratio, the relevant mapped standards on the Floor Space Ratio Map are an FSR of 1.3:1 for the portion of the lots fronting Pacific Highway and 1 Lamond Drive, and 0.85:1 for the rear portion of these lots. I accept the submission of Mr Galasso and the evidence of Mr Sutherland that the principle in Mulpha Norwest means that the FSR is applied to the land as it is mapped, not aggregated. I note that the reasoning contained within the cl 4.6 written request to vary the FSR standard follows this principle.

120. I accept that subcl (2C) of cl 4.4 acts as an exception to the maximum FSR derived from the Floor Space Ratio Map where the relevant conditions are met. Those conditions are firstly, that the land is zone R4 High Density Residential Development, which it is and secondly, that the site area falls within the nominated ranges. To determine whether the exception applies it is necessary, given the wording of the clause, to determine the ‘site area’.

121. I accept the submission of Mr Galasso that site area for the purposes of subcl (2C) of cl 4.4 is determined by applying the relevant definition in LEP 2015. I am not persuaded by Mr Farland’s reasoning that the clause is operated by a reference to ‘land’ or that applying the definition of ‘building’, the relevant land is 1446 Pacific Highway. My reasoning is:

1. In my view the term land is utilised in the clause at subcl (2) as a reference to parcels identified on the Floor Space Ratio Map and is distinguished from the term site area which is separately defined in the instrument: Mulpha Norwest at [64].

2. If Mr Farland’s approach is to be preferred, the correct application of the term ‘building’ as defined in the EPA Act is required, thereby including parts of a building, and any structure or part of a structure. As such, in the present case ‘building’ would include works proposed to occur on 1444-1454 Pacific Highway and 1 Lamond Drive, beyond the bounds of 1446 Pacific Highway. As noted at [50], it is unclear why Mr Farland has limited the terms application to the proposed residential flat building, and not the driveway, fire stairs or the like.

3. The objectives of the clause are directed to controlling development density which when read in the context of the provision, is a measure of the amount of building (broadly defined) to site area.

122. The definition of ‘site area’ (extracted at [22]) is varied by clause 4.5 which acts as a definitional provision for the purpose of the determination whether the exception at subcl (2C) of cl 4.4 applies: Mulpha Norwest at [57]. In other words, to determine whether the relevant site area falls within the band of 1800m² or less, or more than 1,800 m² but not more than 2,400m², and thereby whether the reduced FSR standard applies.

123. On the following reasoning I find that the site area is 14,779.2m², which for the purposes of cl 4.3 is well in excess of 2400m², and accordingly the exception at cl 4.4(2) does not apply.

1. Applying cl 4.5(3)(b) to the current proceeding, development is proposed to be carried out on more than one lot (see findings at [20]). Those lots have at least one common boundary with another lot on which the development is being carried out.

2. On the facts of this case, cl 4.5(4) does not apply to exclude any area as the proposed development is not prohibited on any of the relevant land and none is community or public land.

3. It is agreed that cl 4.5(5) does not apply.

4. Subclause (6) requires that the area of additional lots determined at cl 4.5(3)(b) are excluded unless they contain significant development. Therefore, it is necessary to determine whether development proposed on 1444-1454 Pacific Highway and 1 Lamond Drive each individually are “significant development”. I agree with Ms Gregory’s observation that there is no definition of the term significant development in LEP 2015 and therefore subject to merit assessment. The Respondent’s experts excluded from their considerations that the term ‘development’ as defined in the EPA Act (see [15]) includes ‘use’. Instead in their evidence they focus on built elements, undermining their conclusions about the significance of development. I accept and prefer the evidence of Mr Sutherland, summarised at [93], and contained in the cl 4.6 written request to vary the FSR standard that the proposed development on each of the three lots meets the definition of ‘significant development’.

Further, on my own assessment of the architectural plans and the SEE, I am satisfied that when the definition of development in the EPA Act is applied, on both a quantitative and qualitative assessment, the development proposed on 1444-1454 Pacific Highway and 1 Lamond Drive as part of the development application is significant. Therefore, the areas of these lots are not excluded by subcl (6) of cl 4.5. In my view this finding is consistent with TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 (“TK Commercial”) where Robson J found that certain physical works involving “substantial excavation, the construction of a masonry stairway, the creation of new pathways and ramps, and the construction of a new sewer main and new drainage infrastructure” constituted “significant development” for the purposes of a similar clause.

However, I do accept that if it was proposed on its own as the sole development proposed on 1444-1454 Pacific Highway, the proposed use of the communal open space could not be characterised as significant for the purposes of subcl (6).

5. Clause 4.5(7) does not apply on the facts of the development.

6. Subclause (8) applies to require the inclusion of any existing buildings on the site in the calculation of the total floor space for the purposes of applying a FSR, whether or not the proposed development relates to all of the buildings. I am satisfied that this subcl has been correctly applied by the Applicant in the cl 4.6 written request to vary the standard.

7. Finally, subcl (9) and (10) do not apply because no consent for the relevant land includes a condition of consent which required a covenant to be registered in the form envisaged by the provision. I note this finding accords with that held at [43] in XLJ Investment.

124. I note the submissions of Mr Galasso at [115]-[116] which appears to direct the Court to adopt a construction of cl 4.5(3)(b) where the area of the additional lots relevant to site area be limited to that area of the lots where development is proposed to be carried out by the development application. This approach has some appeal. As detailed at [59], the Applicant asserts the areas of both 1444-1454 Pacific Highway, 1446 Pacific Highway and 1 Lamond Drive where development is proposed to be carried out area is 6410m², a material quantum less than 14,779.2m². However, even if I adopt was to adopt the narrower approach to cl 4.5(3)(b), and applied the remaining subclauses, the effect remains that the site area determined for the purposes of cl 4.3 is in excess of 2400m², and accordingly the exception at cl 4.4(2) would not apply.

124. The following FSR standards apply:

• an FSR of 1.3:1 for the portion of the lots fronting Pacific Highway and 1 Lamond Drive, and

• 0.85:1 for the rear portion of these lots

126. I accept the evidence of Mr Sutherland, and the survey data on which he relies, that the GFA (existing and proposed) is 15,939.61m². I note that an additional 896.39m² existing GFA occurs in the area of the site mapped with an FSR of 0.85:1 (Exhibit 3)

127. For the purposes of assessing the written request I adopt the following, the development application has:

• Firstly, in the area mapped with a FSR control of 1.3:1, a total proposed and existing GFA 15,939.61m² and a site area of 10,907.8m² resulting in an FSR of 1.46:1, representing a variation of 1,759.47m² or 12.4%.

• Secondly, the development application proposes no variation to the FSR standard of 0.85:1 applicable to the rear of the sites, the residual of the 3,871.4m² of the site area.

Should the variation to the maximum FSR standard be upheld?

The environmental planning grounds are insufficient to justify the contravention.

128. The written request seeking to justify the variation to the FSR standard quantifies the variation as follows:

“The variation to the development standard in this instance is for FSR and unlike a variation to a height control for example, where there is a specific area of encroachment, there is not necessarily one specific area responsible to the FSR control [breach]. Notwithstanding, the proposed variation to the FSR control of 1,759.47sqm could correlate with the GFA on the top four levels of the building.”

(Exhibit F, p 17)

129. The written request seeks to justify the contravention of the height development standard on grounds that it describes as environmental planning grounds that can be summarised as follows. Note I have grouped these grounds to assist in legibility of the judgment:

Contextual fit

• That the removal of floor space by taking four floors from the top of the building to simply achieve numerical compliance with the FSR standard would result in an anomalous outcome that would be inconsistent with the emerging pattern and scale of surrounding development.

Overall density not exceeded

• That the overall density of the proposed development does not exceed the total density that could be achieved across the sites and is in fact under 634m² when considered in this way.

• That the distribution of density to the northern end of the site is consistent with the objective of moving density away from the Blue Gum Forest that is reflected in the varied FSR mapping.

The need for winter gardens.

• That a proportion of the additional FSR is reflected in the need for winter gardens (enclosed balconies/ private open space) to ameliorate the noise environment of the site.

No adverse impact:

• That the proposed variation results in no unreasonable impacts and delivers additional housing in a well located and serviced site.

Findings

130. I am not satisfied that the written request seeking a variation to the FSR development standard demonstrates that there are sufficient environmental planning grounds to justify the requested contravention of the development standard.

131. Applying the same process and reasoning as that detailed at [76] I find as follows:

Contextual fit

• The environmental planning ground that I have summarised as ‘contextual fit’ does not, in my view, wholly relate to the exceedance and instead focusses on the development as a whole. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. It is correct to say that the proposed design provides a height and street presentation to the Pacific Highway that is compatible with the desired future character of the locality and the existing built environment. The environmental planning ground does not arise from the FSR variation. Further, a similar contextual fit could be achieved by a development with a compliant FSR which, for example, had a reduced footprint.

• The variation sought is a material quantum of floor space. I am not satisfied that the written request demonstrates that the environmental planning ground advanced as ‘contextual fit’ is sufficient to justify the proposed contravention of the development standard or to enable the me to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter.

• For these reasons the contextual fit ground is inadequate to justify the contravention of the FSR standard.

Overall density not exceeded

• This environmental planning ground is again a fact directed at the development as a whole, rather than a ground directed at seeking to justify the variation itself. Further, if it was accepted as an environmental planning ground which is directed at the variation (identified in the written request as the upper four floors of the building) it is, in my view, quantitatively and qualitatively insufficient to justify the extent of the variation sought by the development application.

• For these reasons, the overall density ground is inadequate to justify the contravention of the FSR standard.

Need for winter gardens

• This ground is a design response chosen to respond to a specific constrain arising from the site’s location adjacent to the Pacific Highway. I accept that the acoustic environment is a constraint that is particular to the site. However, I am not persuaded that the ground advanced is either a ground directed at seeking to justify the variation itself, nor sufficient to justify the quantum of additional floor space sought by the development application. This conclusion is reinforced when the unit sizes proposed are compared with the minimum internal unit sizes provided in Part 4 of the Apartment Design Guide. The proposed development well exceeds these minimums, providing generous internal unit areas before the area provided in the winter gardens is considered. The written request itself identifies that the area of the winter gardens represents less than 10% of the exceedance sought.

• For these reasons, the environmental planning ground directed at the need for winter gardens in the development is inadequate and insufficient to justify the contravention of the FSR development standard.

Adverse impacts.

• For the same reasons detailed at [78], I accept that the avoidance of impacts is an environmental planning ground as it promotes one of the objects of the EPA Act. However, I am not persuaded that, given the extent of variation sought, that it is either quantitatively or qualitatively sufficient in this case to justify the variation sought.

• Firstly, the written request fails to establish that the lack of adverse impacts arises from the quantum of additional floor space, rather than a benefit of the development as a whole. The written request fails to establish that there are a lack of impacts arising from the breach of the height development standard (the upper floor) so as to justify the breach

• Secondly, lack of impact is, in my assessment, insufficient to justify such a significant quantum of variation, detailed in the written request as representing the top four floors of the development.

132. Further, when the environmental planning grounds advanced are looked at collectively, I find I am not able to be satisfied that they are sufficient grounds to justify the contravention of the FSR standard.

133. For the purposes of completeness, I note that if I was to adopt the approach advanced by Mr Galasso at [115]-[116] the quantum of variation sought to the FSR standard may be greater but, in my assessnment, would result in the same findings of lack of satisfaction of cl 4.6(4)(a)(i) of LEP 2015 as the Court, as consent authority, has failed to be satisfied that there are sufficient environmental planning grounds to justify contravening the FSR standard.

Conclusion

134. Clause 4.6(4) of LEP 2015 provides that development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied of the matters in cl 4.6(4)(a), which includes, at (i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). As set out above, the proposed development contravenes both the height and FSR development standards. Clause 4.6(3) requires the written request to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. For the reasons expressed above, the Court, in exercising the functions of the consent authority, is not satisfied that the applicant’s written request has adequately addressed these matters. Clause 4.6(4) therefore prevents the grant of development consent, and the development application must be refused.

Orders

135. The Court orders that:

1. The appeal is dismissed,

2. Development Application DA/479/21 seeking consent for demolition of existing structures and construction of a residential flat building comprising 21 unit, basement carparking and associated landscaping at 1446 Pacific Highway, Turramurra (Lot 1 DP 259533) is determined by the refusal of consent,

3. Exhibits are returned with the exception of Exhibits 1, A, B, F and G.

D Dickson

Commissioner of the Court

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Decision last updated: 13 November 2024