Land and Environment Court New South Wales Medium Neutral Citation: Holz v Newcastle City Council [2021] NSWLEC 1103 Hearing dates: Conciliation conference on 14 December 2020 Date of orders: 1 March 2021 Decision date: 01 March 2021 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. 2019/00970 for alterations and additions to an existing dwelling, at 29 Parnell Place, Newcastle East, is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – exceedance of the floor space ratio development standard – adjoining a local heritage item — conciliation conference — agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 8.7 Land and Environment Court Act 1979 ss 34, 34AA, 39 Newcastle Local Environmental Plan 2012 cll 4.4, 4.6, 5.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 cl 5 State Environmental Planning Policy No 55 – Remediation of Land cl 7 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Category: Principal judgment Parties: Megan Elizabeth Holz (First Applicant) Phillip Andrew Holz (Second Applicant) Newcastle City Council (Respondent) Representation: Counsel: F Berglund (Applicant) A Pickles SC (Respondent) Solicitors: Equium Lawyers (Applicant) Newcastle City Council (Respondent) File Number(s): 2020/190295 Publication restriction: Nil 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. 2019/00970 for alterations and additions to an existing dwelling (the proposal) at 29 Parnell Place, Newcastle East (the site) by Newcastle City Council (the Council). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 December 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are preconditions to the exercise of power to grant development consent, pursuant to State Environmental Planning Policy No 55 – Remediation of Land at cl 7(1), State Environmental Planning Policy (Coastal Management) 2018 because the site is within the coastal zone pursuant to cl 5, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Newcastle Local Environmental Plan 2012 (LEP 2012) at cll 4.6(2) and 5.10(4). The site and its context 1. The site is on the eastern side of Parnell Place with rear access from Murray Avenue. The site is 146.7sqm with a frontage to Parnell Place of 6.096m. Planning framework 1. The site is zoned R3 Medium Density Residential pursuant to LEP 2012. The objectives of the R3 zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow some diversity of activities and densities if— (i) the scale and height of proposed buildings is compatible with the character of the locality, and (ii) there will be no significant adverse impact on the amenity of any existing nearby development. • To encourage increased population levels in locations that will support the commercial viability of centres provided that the associated new development— (i) has regard to the desired future character of residential streets, and (ii) does not significantly detract from the amenity of any existing nearby development. 1. The floor space ratio (FSR) development standard for the site is 1:1 (cl 4.4 and Floor Space Ratio Map – Sheet FSR_004K of LEP 2012). The objectives for FSR at cl 4.4(1) of LEP 2012 are: (a) to provide an appropriate density of development consistent with the established centres hierarchy, (b) to ensure building density, bulk and scale makes a positive contribution towards the desired built form as identified by the established centres hierarchy. 1. The site is located within the Newcastle East Heritage Conservation Area (HCA) (Schedule 5 of LEP 2012) and is adjacent to a heritage item at 31 Parnell Street (Item 486, Schedule 5 of LEP 2012). Clause 5.10(4) of LEP 2012 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposal on the heritage significance of the HCA. 2. I am satisfied that the amended proposal does not significantly change the building envelope or the presentation of the existing terrace house in the streetscape and that it will not impact on the identified heritage significance of the HCA or the adjoining heritage item. Contravention of FSR development standard 1. The amended proposal has a FSR of 1.3:1. The applicant provided an amended written request seeking to justify the contravention of the FSR development standard prepared by The Plan Centre and dated 15 January 2021. 2. Clause 4.6(4) of LEP 2012 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 [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 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) of LEP 2012 (Initial Action at [29]). The applicant's written request to contravene the FSR development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of LEP 2012 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 at [42]-[51] ("Wehbe") and repeated in Initial Action [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 [22]). 2. The applicant's written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the amended proposal is for the adaptation of an existing terrace house and the amended proposal responds to the particular opportunities and constraints of the existing structure and surrounding development and it does not result in amenity impacts on existing nearby development. 3. 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]). 4. 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 FSR development standard as a justified response to the opportunities and constraints presented by the existing terrace house. 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) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am satisfied that the scale and height of the amended proposal is compatible with the character of the locality and that there will be no significant adverse impact on the amenity of any existing nearby development. Consideration 1. I am satisfied that the proposal will not affect the identified heritage significance of the HCA because the proposal retains the existing building and its streetscape presentation. 2. I have considered the preconditions to the exercise of power to grant development consent pursuant to the various State Environmental Planning Policies listed at [6] and I am satisfied that those preconditions have been satisfied by the proposal for the reasons given by the parties in the jurisdictional checklist attached as Attachment 1. 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. 2019/00970 for alterations and additions to an existing dwelling, at 29 Parnell Place, Newcastle East, is approved, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (190605, pdf) Attachment 1 (191459, pdf) Architectural Plans (2903636, pdf) ********** Amendments 02 March 2021 - Added 'Attachment 1' and 'Architectural Plans'. 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: 02 March 2021