Land and Environment Court New South Wales Medium Neutral Citation: Assurance Holdings No. 3 Pty Ltd v Wollongong City Council [2020] NSWLEC 1329 Hearing dates: Conciliation conference held on 2 June 2020 Date of orders: 28 July 2020 Decision date: 28 July 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The applicant is granted leave to amend the application to rely on the amended plans and documents listed in Condition 1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development Application No. 2019/874 for the construction of four semi-detached dwellings and subdivision of Lot 68 in DP 38660 into four Torrens Title lots at 6 Bulwarra Street, Keiraville, is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – exceedance of the floor space ratio development standard Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Assurance Holdings No. 3 Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wollongong City Council (Respondent) File Number(s): 2019/376921 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2019/874 for the construction of four semi-detached dwellings and subdivision of Lot 68 in DP 38660 into four Torrens Title lots (the proposal) at 6 Bulwarra Street, Keiraville (the site) by Wollongong City Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 June 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6(2) of the Wollongong Local Environmental Plan 2009 (LEP 2009). Planning framework 1. The site is zoned R2 Low Density Residential pursuant to LEP 2009 (Land Zoning Map - Sheet LZN_ 011). Semi-detached dwellings are permissible with consent in the R2 zone. The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The site is a corner allotment with an area of 756sqm. The minimum subdivision lot size for the site is 449sqm (cl 4.1(2) of LEP 2009). The minimum subdivision lot size clause does not apply in relation to the subdivision of land for the purpose of erecting an attached dwelling or a semi-detached dwelling in a residential zone (cl 4.1(4B) of LEP 2009). 2. The height of buildings development standard for the site is 9m (cl 4.3(2) and Height of Buildings Map – Sheet HOB_011 of LEP 2009). The proposal complies with the height of buildings development standard. 3. The floor space ratio (FSR) development standard for the site is 0.5:1 (cl 4.4(2) and Floor Space Ratio Map – Sheet FSR_011 of LEP 2009). The objectives of the FSR development standard, at cl 4.4(1), are: (a) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate, (c) to ensure buildings are compatible with the bulk and scale of the locality. 1. The definition of gross floor area (GFA) in the Dictionary of LEP 2009 (Standard Instrument LEP definition) is: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes— (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes— (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement— (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 1. The applicant has calculated the GFA by including the area of the stair treads in each dwelling shown in the plan on the ground floor plan drawing and excluding the area of the stair treads shown in the plan on the first floor plan drawing, describing that area as a "void". The proposal includes a storage cupboard in each dwelling within the enclosed area under the stairs. Using this approach, the applicant is of the view that the proposal complies with the FSR development standard for the site. 2. The Council has taken a different approach and required that the storage area under the stairs be included in the calculation of GFA on the ground floor and that the stair treads be included in the area of GFA on the first floor. 3. As I have not had the benefit of legal submissions by the parties' representatives on this issue and for abundant caution, I will consider the applicant's written request to vary the FSR development standard on the basis of the Council's position; despite being minded to accept the applicant's position. Contravention of the FSR development standard 1. The proposal, on the basis of the Council's interpretation of the Definition for GFA in LEP 2009, has a FSR of 0.52:1 for the site (and for each proposed allotment). 2. The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Mecone and dated July 2020. 3. Clause 4.6(4) of LEP 2009 establishes preconditions that must be satisfied before a consent authority or the Court, exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] "Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of LEP 2009 is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the Council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note, this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because: * The proposal achieves the objectives of the FSR standard and is consistent with the objectives of the zone notwithstanding non-compliance with the numerical standard. * The variation exceeds the maximum permissible GFA by 4.44sqm, 4.36sqm, 4.02sqm and 3.33sqm per lot or 4.60%, 4.52%, 4.41% and 3.55% per lot and ~16.15sqm in total (being 4.28% in total) based on the 0.5:1 FSR development standard. * The proposal fits within the maximum height control established by cl 4.3. * The proposal fits within the maximum building envelope established by the relevant height and setback controls in Wollongong Development Control Plan 2009 (DCP) and readily meets the DCP's site coverage, parking, private open space and landscaping requirements. * As such, it is considered that the proposed variation to the FSR standard is a technical numerical issue that does not detract from the development's ability to provide a building form suitable to the site and locality. * The proposal provides for a distribution of FSR that does not create unnecessary bulk and scale and is able to achieve compliance with the building envelope controls contained within the DCP. * The additional FSR does not result in any unreasonable environmental impacts. 1. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 2. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the development standard on the basis that the development complies with all other applicable development controls and does not result in any environmental impacts. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) of LEP 2009 is that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the application to rely on the amended plans and documents listed in Condition 1 of the conditions of consent at Annexure A. 2. The appeal is upheld. 3. Development Application No. 2019/874 for the construction of four semi-detached dwellings and subdivision of Lot 68 in DP 38660 into four Torrens Title lots at 6 Bulwarra Street, Keiraville, is approved, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (199719, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2020