Land and Environment Court New South Wales Medium Neutral Citation: ACN 647 465 236 v Northern Beaches Council [2022] NSWLEC 1245 Hearing dates: 5 and 11 April 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders that: (1) The appeal is dismissed (2) Development Application DA2021/1208 for the demolition of 4 dwellings, development of a residential flat building comprising 23 dwellings and 30 car spaces and consolidation and strata title subdivision of Lots 1, 2, 3 and 4 in DP 104820 at 20-26 Avon Road, Dee Why, is determined by way of refusal. (3) The exhibits are returned except for exhibits A, 1, 3, 4 and 5. Catchwords: DEVELOPMENT APPLICATION – Clause 4.6 request – variation to height standard – residential flat building – insufficient environmental planning grounds Legislation Cited: Environmental Planning and Assessment Act 1979, s 1.3 Warringah Local Environmental Plan 2011 cll 4.3, 4.6 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Warringah Development Control Plan 2011 Category: Principal judgment Parties: ACN 647 465 236 (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: A. Hemmings (Applicant) S. Patterson (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/263788 Publication restriction: No Judgment 1. The applicant, ACN 647 465 236 seeks development consent for a residential flat building within an area of existing medium density residential buildings in close proximity to both Dee Why Beach and Dee Why Lagoon. 2. Specifically, Development Application DA2021/1208 seeks approval for the demolition of existing structures, consolidation of four allotments and construction of a four storey residential flat building of 23 units. This Class 1 appeal results from the actual refusal by Northern Beaches Local Planning Panel of this development application. 3. The site consists of Lots 1, 2, 3 and 4 in DP 104820, known as 20, 22, 24 and 26 Avon Road, Dee Why and is located on the corner of Richmond Avenue and Avon Road with its longest and primary frontage to Avon Road. Pursuant to the Warringah Local Environmental Plan 2011 (WLEP) it is zoned R3 Medium Density Residential. 4. As a result of the joint conferencing of experts and amendments to the application, the issues in dispute have narrowed significantly. The Council however maintains their overall objection to the development on the basis of excessive height and scale, landscaped area, public interest, and landscape design and character. 5. The issue of excessive height necessitates a written request under cl 4.6 of WLEP to vary the development standard for height of buildings (WLEP cl 4.3). This raises a jurisdictional threshold on which I must be satisfied. For the following reasons, I have not reached the necessary state of satisfaction and accordingly the appeal must be dismissed. The variation to the height standard and clause 4.6 1. The proposed development is for a residential flat building of four storeys plus a basement, with a maximum height of 13.5m. This represents a departure of 2.5m or 22.7% from the 11m Height of Buildings development standard set by WLEP cl 4.3. The breach results from the inclusion of a fourth storey which facilitates two units. 2. A variation to the Height of Buildings development standard is permissible subject to the satisfaction of the relevant provisions of WLEP cl 4.6, which reads: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows— (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider— (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. 1. The objectives of WLEP cl 4.3 Height of Buildings are: (a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access, (c) to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments, (d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities. Consideration of the cl 4.6 written request to vary the height standard 1. The applicant has provided a revised written cl 4.6 request to vary the height standard (the written request) which relates to the development proposal before the Court, for consideration pursuant to WLEP cll 4.6(3) and (4). 2. As detailed in Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), as a result of the breach of a development standard, WLEP cll 4.6(3) and (4) establish preconditions that must be satisfied before the Court, in exercising the functions of the consent authority, can grant development consent to the development. These preconditions are: * The written request must adequately demonstrate that compliance with the development standard is unreasonable or unnecessary (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); * The written request must adequately demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); * That the proposed development is in the public interest because it is consistent with the objectives of both the zone and the development standard (cl 4.6(4)(a)(ii)); and * Concurrence of the Planning Secretary must be obtained. Whether compliance with the development standard is unreasonable or unnecessary 1. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [42] - [51], Preston CJ summarises the common ways in which compliance with the development standard may be demonstrated as unreasonable or unnecessary. This is repeated in Initial Action at [16]. In the applicant's written request, the first method described in Initial Action at [17] is used to establish that compliance with the development standard is unreasonable or unnecessary, which is that the objectives of the height standard are achieved notwithstanding non-compliance with the numeric height standard established by WLEP cl 4.3. 2. The first objective of WLEP cl 4.3 is "to ensure that buildings are compatible with the height and scale of surrounding and nearby development". The applicant states that the surrounding and nearby developments comprise of a mix of 3 and 4 storey residential flat buildings and that the proposed development, with its heavily recessed fourth storey, is compatible in both height and scale with this context. 3. The Council however contends that the proposed development is not compatible with the height and scale of surrounding and nearby development, and that this objective is not met. In the Town Planners' Joint Report (Exhibit 3), Mr Jordan Davies details for the Council several reasons why this compatibility is not achieved. In this he states that the height and scale of the older, established four storey buildings is characterised by lower floor-to-ceiling heights and shallow, pitched roofs, and that breaches of the height limit are generally the result of non-habitable roof elements. He states that the proposed fourth storey will not only breach the anticipated height limit to an unacceptable extent but also that, as this storey constitutes habitable space, it is inconsistent with the roof forms that constitute breaches of height in nearby development, and is incompatible with the height and scale of surrounding developments. 4. From the observations I was directed to make on site and the evidence of the planning experts, I prefer the evidence of Mr Davies and concur that the height and form of the proposed fourth storey, albeit amended, remains incompatible with the height and scale of surrounding and nearby development. 5. The second objective of WLEP cl 4.3 is "to minimise visual impact, disruption of views, loss of privacy and loss of solar access". I am satisfied, based on the justification in the written request that the proposed development, as amended, meets this objective. 6. The third objective of WLEP cl 4.3 is "to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments". I am satisfied based on the justification in the written request, which is further supported by the observations I was directed to make on site, that the proposed development meets this objective. 7. The final objective of WLEP cl 4.3 is "to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities". The written request states that the proposed development utilises landscape, site planning, building design and the recessed upper storey to minimise and manage the visual impact of the development when viewed from public places. This is again supported by the observations I was directed to make on site from both roads and the nearby Dee Why Lagoon reserve from which the site is visible, and I am satisfied that this objective is met with the proposed development. Whether there are sufficient environmental planning grounds to justify contravening the development standard 1. Pursuant to WLEP cl 4.6(3)(b), the applicant advances five environmental planning grounds to justify contravening the development standard. The Council maintains that, although these may constitute environmental planning grounds, they are not sufficient in justifying the contravention. As stated in Initial Action at [24], these grounds must justify the contravention, not simply promote the benefits of carrying out the development as a whole. I will deal with each in turn: 1. Ground 1- compatibility with the height and scale of surrounding and nearby development is achieved. For the reasons given above in relation to the objectives of WLEP cl 4.3, I do not accept that the proposed development with its fourth storey is compatible with the height and scale of surrounding and nearby development, and therefore do not find this ground acceptable. 2. Ground 2 – compliance with the flood planning level contributes to the height of the proposed building. The flood planning level elevates the ground level by a maximum of 1.8m, however the breach in height is up to 2.5m: more than double the elevation required due to flooding. I concur with the Council's planning expert, Mr Jordan Davies, that while this constraint adds to the height of the building it does not, in this case, justify the addition of the fourth storey. In support of this, the Warringah Development Control Plan 2011 Pt B2 sets a 3 storey control for this site, with the objective (inter alia) of complementing the height of buildings control in the WLEP with a number of storeys control. I accept the Mr Davies' position that an 11m high, 3 storey development that is within both the height of storeys and height in meters controls is possible irrespective of the flood planning requirements, and that it is the extra storey rather than compliance with the flood planning that generates the breach of height. 3. Ground 3 – appropriate amenity outcomes are achieved. I accept that, as per the written request, the proposed breach does not result in adverse amenity outcomes. However, I also accept Mr Davies' submission in the Town Planner's Joint Expert Report (Exhibit 3 at [25]) that the need to achieve appropriate amenity outcomes is a fundamental requirement of new residential development, not a justification of a breach of a development standard. 4. Ground 4 – the proposal is of good design and satisfies the relevant objectives of the Environmental Planning and Assessment Act (EPA Act). Specifically, the written request states that the proposal is consistent with the following objectives under s 1.3 of the EPA Act: (c) to promote the orderly and economic use and development of land; and (g) to promote good design and amenity of the built environment, through consistent streetscape alignment and increased landscaping at the street edge. The written request does not adequately detail how the breach of the height standard results in either of these outcomes, instead focusing on the overall development in relation to these two objectives. I accept the Council's submission that this environmental planning ground does not justify the breach. 1. Ground 5 – Two additional dwellings in a location planned for more housing. The Council submits that, for a building that could satisfactorily provide 21 units with no breach of the height limit, the justification of the provision of two additional dwellings is not a sufficient environmental planning ground. I concur with this position and note that without the breach, the development would meet this requirement. Whether the proposed development meets the objectives of the development standard, and of the zone 1. The objectives of the R3 Medium Density Residential zone under the WLEP 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 ensure that medium density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. • To ensure that medium density residential environments are of a high visual quality in their presentation to public streets and spaces. 1. I accept the applicant's submissions in the written request that the relevant objectives of the R3 Medium Density Residential zone are met. However, for the reasons given above I am not satisfied that the proposed development meets all the relevant objectives of the development standard, and accordingly that it is not in the public interest. Conclusion and orders 1. For the reasons given, I find that the applicant's written request does not provide sufficient environmental planning grounds to justify the contravention of the development standard, and therefore does not meet the prerequisites of WLEP cll 4.6 (3) and 4(a)(i) and (ii). Further, I find that the application with its fourth level is not consistent with the objectives of the WLEP cl 4.3 Height of Buildings development standard and is not in the public interest, and subsequently that the jurisdictional thresholds established by WLEP cl 4.6 are not met. 2. Accordingly, I have no power to grant development consent for the development and subsequently make the following orders: 3. The Court orders that 1. The appeal is dismissed 2. Development Application DA2021/1208 for the demolition of 4 dwellings, development of a residential flat building comprising 23 dwellings and 30 car spaces and consolidation and strata title subdivision of Lots 1, 2, 3 and 4 in DP 104820 at 20-26 Avon Road, Dee Why, is determined by way of refusal. 3. The exhibits are returned except for exhibits A, 1, 3, 4 and 5. ………………………. E Washington Acting Commissioner of the Court ********** 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: 12 May 2022