Land and Environment Court New South Wales Medium Neutral Citation: Baron Corporation Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1552 Hearing dates: 3 October 2018 Date of orders: 19 October 2018 Decision date: 19 October 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) The development application D/2018/72 for alterations and additions to an approved 7-storey residential flat building at 17-19 and 21 Dunning Avenue, Rosebery, is refused. (3) Exhibits 2, 3, 4 and 5 are returned. Catchwords: APPEAL – development application – alterations and additions to an approved residential flat building for which development consent has not yet commenced – increase in floor space by in-filling of voids – contravention of the FSR development standard - increase in the number of units – no adverse impacts – increased intensity - whether consent should be granted notwithstanding contravention of FSR development standard – whether state of satisfaction required by cl 4.6(4)(a) has been reached Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55–Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012 Cases Cited: Bettar v Council of the City of Sydney [2016] NSWLEC 1456 BKA Architecture v Council of the City of Sydney [2016] NSWLEC 1492 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 18 PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Sydney Development Control Plan 2012 Category: Principal judgment Parties: Baron Corporation Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Galasso SC (Applicant) A Pickles SC (Respondent) Solicitors: Mills Oakley (Applicant) File Number(s): 18/88767 Publication restriction: No Judgment 1. COMMISSIONER: On 4 October 2016, the Land and Environment Court granted a deferred commencement development consent for the construction of a seven-storey residential flat building containing 27 units and basement parking at 17-21 Dunning Avenue, Rosebery. The residential flat building the subject of the consent, once operative, features internal voids within 12 of the north facing units. Baron Corporation Pty Limited ("Baron") seeks consent for alterations and additions to the approved residential flat building to add floor space within those voids and alter the internal layout so that the number of units would increase to 39. A development application seeking the same was lodged with the Council of the City of Sydney ("the Council") on 1 February 2018. Following the expiry of the period after which an application is deemed to have been refused, Baron lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. The Council opposes the grant of development consent on the basis that the alterations and additions result in a floor space ratio ("FSR") that departs from the FSR development standard under the Sydney Local Environmental Plan 2012 ("SLEP 2012"), the proposed breach is not consistent with the objectives of the standard, and the request to vary the standard does not adequately address the matters required by cl 4.6 of the SLEP 2012. There is also a contention raised by the Council that the proposed departure from the FSR development standard creates an undesirable precedent that would result in an increased density beyond that envisaged by the area and prescribed by the SLEP 2012, and therefore approval would not be in the public interest. 3. Prior to the hearing of the appeal, Baron provided amended plans to the Council that changed the apartment mix on the fourth floor and thereby reduced the total number of additional units sought by 1. Those plans were then considered in the joint conferences of the expert witnesses. At the hearing, I granted leave to Baron to amend the development application by relying on those amended plans. As a result, a contention that the proposal does not comply with the requirement to provide a mix of unit sizes has been resolved. 4. Similarly, a contention with respect to the adequacy of solar access to the units has been resolved by the provision of additional information by Baron, together with the agreed expert evidence of urban designers Ms Gabrielle Morrish and Ms Cindy Ch'ng. Their evidence is that 89.5% of the units in the proposal receive a minimum of 2 hours direct sunlight between 9am and 3pm at midwinter to their living rooms and private open spaces. This exceeds the requirement in Part 4A-1 of the Apartment Design Guide ("ADG"), discussed below, for 70% of apartments to achieve this level of solar access. 5. With those issues on the merits of the development application now resolved, the primary matter for my determination is whether the power pursuant to cl 4.6 of the SLEP 2012 ought to be exercised in order to grant development consent notwithstanding the non-compliance with the FSR development standard. For the reasons set out below, I cannot form the requisite opinion of satisfaction under cl 4.6(4)(a)(i) that the request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard or that compliance is unreasonable or unnecessary. As a result, there is no power to grant development consent and the appeal must be dismissed and the development application refused. Relevant History 1. Following an appeal against the deemed refusal of a development application for the construction of the residential flat building, on 4 October 2016 and by a decision of Commissioner O'Neill, the Court granted development consent to development application number D/2015/1829 for the demolition of existing warehouse buildings and construction of a 7 storey residential flat building containing 27 apartments and associated basement parking (see Bettar v Council of the City of Sydney [2016] NSWLEC 1456). 2. The deferred commencement conditions, which require satisfaction prior to the development consent becoming operative, include entry into a Voluntary Planning Agreement ("VPA"), and have not been satisfied. 3. In giving the reasons for the grant of development consent, Commissioner O'Neill was careful to outline why she considered that it was appropriate for development consent to be granted. In particular, she stated that significant weight was given to compliance of the proposal with the FSR standard and the high level of amenity achieved by the proposal with the internal voids within 12 of the north facing units. At [76] she states: "In my consideration of this proposal, I have given significant weight to the following aspects of the proposal: • The compliance of the proposal with the 22m height of buildings development standard and the 1.5:1 FSR development standard for the site including the additional 0.5:1 FSR (cl 6.14 of LEP 2012) and the overall building envelope of the proposal which provides an appropriate bulk, massing and modulation of the building on the site. • The context of the site given by the two nearby heritage items, the approved new development and constructed new development to date, which together provide a precedent for a nil street boundary setback for the street frontage elevation above the ground level on this block and particularly the likely form of development on the adjoining site to the south 23 Dunning Avenue. The decorous relationship of the proposal to its future northern neighbour allows for a variety of approaches to the development of the adjacent property, by setting the proposal back from the northern boundary, so that the proposal does not dictate a nil street boundary setback for the street frontage elevation of its northern neighbour. • The developments at 1-3 Dunning Avenue and 4 Cressy Street which similarly consist of seven storeys, with a street wall height of 6 storeys. • The high level of amenity achieved by the proposal as the living areas and outdoor living areas of 23 of the 27 units face north with a 9m setback from the northern boundary. The internal voids within 12 of the north facing units will provide a generous feeling of spaciousness and access to sunlight." The Development Application 1. The present application, D/2018/72, seeks consent to amend D/2015/1829 by proposing alterations and additions to the approved residential flat building. The alterations and additions include filling in voids, adding balconies and internal reconfiguration, and results in the following changes to the proposed development: * An increase in the number of units from 27 to 38, * An increase in the gross floor area from 2582m2 to 2925m2, * An increase in the overall FSR from 2:1 to 2.3:1, * The filling in of the voids of 10 units and the provision of additional balconies on the northern elevation of levels 2, 4 and 6, * A change in the unit mix to one studio unit, 18 one bedroom units and 19 two bedroom units, * Amendments to window sizes and locations on southern elevation; and * Amendments to the storage area and bicycle parking in the basement. The site and its locality 1. Although a site inspection was not undertaken at the commencement of the hearing, the site is described as regular in shape and comprising three lots with two addresses, known as 17-19 and 21 Dunning Avenue, Rosebery. The three lots are legally described as Lots 27 and 28 in DP 192683 and Lot 1 in DP 89963. The Dunning Avenue frontage is approximately 30.5m and the site has a total area of approximately 1296m2. There are buildings located directly adjacent to the site to the north, south and east. 2. The locality is currently characterised by light industrial uses, but is in the process of transition to mixed uses, with some newly constructed residential flat buildings within the visual catchment of the site. There are two heritage items within the vicinity of the site, the two storey 'Paradise Garage warehouse' at 25-27 Dunning Street, on the corner of Cressy Street, and 'Mentmore House' at 5-11 Mentmore Avenue, on the eastern side of the block and to the rear of the site. Planning Framework 1. The site is zoned B4 Mixed Use zone under the SLEP 2012. Residential flat buildings are an innominate permissible use in the B4 Mixed Use zone. Clause 2.3(2) of the SLEP 2012 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The objectives are: 1 Objectives of zone • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres. 1. Clause 4.4 of the SLEP 2012 establishes a FSR development standard of 1.5:1 for the site. 2. In addition, pursuant to cl 6.14 of the SLEP 2012, the site is eligible for an amount of additional floor space of no more than that which may be achieved by an additional 0.5:1 FSR. The additional floor space is subject to certain criteria, including that the development includes Green Square Community Infrastructure. Clause 6.14 provides: 6.14 Community infrastructure floor space at Green Square (1) The objectives of this clause are as follows: (a) to allow greater densities where Green Square community infrastructure is also provided, (b) to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. (2) The consent authority may consent to development that results in additional floor space in accordance with subclause (4) if the development includes Green Square community infrastructure. (3) In deciding whether to grant development consent, the consent authority: (a) must be satisfied that the development is consistent with the objectives of this clause, and (b) must be satisfied that the Green Square community infrastructure is reasonably necessary at Green Square, and (c) must take into account the nature of the Green Square community infrastructure and its value to the Green Square community. (4) Under subclause (2), a building on land in an Area specified in paragraph (a), (b), (c), (d), (e) or (f) is eligible for an amount of additional floor space determined by the consent authority but no more than that which may be achieved by applying the floor space ratio specified in the relevant paragraph to the building: … (b) Area 6—0.5:1, … 1. This means that the total FSR that can be achieved on the site, if the consent authority is satisfied of the matters in cl 6.14(3), is 2:1. The proposed altered development does not comply with this FSR, and has a FSR of 2.3:1. 2. The provisions of the State Environmental Planning Policy No 55–Remediation of Land and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also apply to the site. 3. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development ("SEPP 65") also applies, and provides at cl 28(2) that: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. Clause 30 of SEPP 65 provides: 30 Standards that cannot be used as grounds to refuse development consent or modification of development consent (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.... 1. The Sydney Development Control Plan 2012 applies, and specifically requires at cl 4.2.3.12 for a mix of dwelling sizes to be provided in residential flat buildings. Evidence 1. There were no submissions by resident objectors concerning the application. Mr Anthony Betros and Ms Aisling McGrath, town planners, prepared a joint report and gave expert opinion evidence with respect to the breach of the FSR development standard and the written cl 4.6 request. The written request was prepared by Mr Betros. The breach of the FSR development standard 1. As set out above, the proposal breaches the FSR development standard, with a FSR of 2.3:1. This equates to around 343 m2 of additional floorspace above what is permitted by the FSR development standard. As such, consent cannot be granted except in accordance with cl 4.6(2) of the SLEP 2012. 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. 1. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 18 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: * The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), * The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)), * The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), and * The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 1. In considering the third and fourth points above, in Initial Action, Preston CJ made it clear that the Court, in exercising the functions of the consent authority, need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather that it "only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed" those matters (at [25]). 2. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent with the objectives of the zone and of the standard, then it is in the public interest. These matters need not be established by the written request. The objectives of the FSR development standard are: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality... 1. A further precondition in cl 4.6(4) that must be satisfied before the power can be exercised to grant development consent for development that contravenes the development standard is that the concurrence of the Secretary has been obtained. As noted by Preston CJ in Initial Action at [28], as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003, the Secretary's concurrence can be assumed. The written request 1. The written request, an amended version of which was provided at the hearing (Ex F), is well structured and specific to the proposed development. It advances a number of reasons as to why compliance with the FSR development standard on the site is unreasonable and unnecessary, which can be summarised as follows: * The additional FSR occurs within the existing approved building and does not generate any additional height, bulk or scale which ensures that there are no visual bulk or amenity impacts beyond that approved. Therefore there are no additional view impacts, overshadowing or privacy impacts. * The proposed altered development maintains compliance with each of the criteria under the ADG for solar access, cross ventilation, private open space, storage, unit sizes and balcony sizes. * The proposed altered development maintains the high proportion of desirable north-facing units to a generous landscaped setback of 9m as that which was seen in the approved development, with 35 of the 38 apartments enjoying a northerly aspect. * The proposed altered development does not result in an intensity that is significantly different from that which is approved, as there are only 7 additional bedrooms added to the proposal. * There is higher rental demand for single level apartments, and single level apartments are more accessible. * The existing owner has already made financial contributions towards community infrastructure that support the development of the additional FSR. 1. The written request also proffers a number of environmental planning grounds that Baron relies upon to justify the contravention of the FSR standard. Those reasons fall under two headings in the request, the first being "The variation allows for a better planning outcome" and the second "There are sufficient environmental grounds to permit the variation". They can be summarised as follows: * The proposed FSR variation will introduce an additional 11 residential units to the locality, which represents a more efficient use of the subject site as the approved building envelope and streetscape presentation will not change. * The units will achieve a high standard of accommodation and a high level of amenity, with outperformance of many of the ADG requirements including the solar access requirements (89% of apartments, compared to 70% required), outperformance of cross ventilation requirements (74% of apartments, compared to 60% required), exceedance of the minimum apartment size, significant exceedance of the private open space requirements with large balconies and ground floor courtyards, and larger than required communal open space provision. 1. The request also outlines how the proposed development is consistent with the objectives of the standard and of the zone. The request considers there to be consistency with the objectives of the FSR development standard for reasons that can be summarised as follows: * The proposal seeks to provide for additional units within the approved building envelope, which will allow additional units within the same built form with no adverse external impacts. * The proposed altered development provides for an appropriate level of floor space within a building envelope that is consistent with the established pattern of development along Dunning Avenue. * The physical form of the building remains unchanged. * There is adequate capacity in the surrounding vehicular and pedestrian network to accommodate the additional intensity. The site is located in an area that is well serviced in regard to public transport, shops and recreation areas. * The additional FSR does not generate any additional height, bulk or scale for the proposed altered development. As a result, it does not generate any additional external impacts and continues to reflect the desired future character of the locality. 1. The request also states that there is no inconsistency with the objectives of the zone, as the proposed altered development represents a desirable and appropriate form on the subject site, is in an accessible location so as to maximise public transport patronage, encourages cycling and walking by the provision of bicycle parking and its proximity to local centres, and therefore supports the viability of those local centres. Evidence in support of the request 1. Mr Betros also gave expert evidence in support of the request and in support of the consistency of the proposed development with the objectives of the FSR development standard. He opines that the proposed FSR is within a similar building envelope to that approved and does not generate any greater impacts beyond that of the approved development envelope. He also opines that the amenity of the units is maintained, which confirms that the additional FSR can be accommodated on the subject site. He forms this opinion due to the ability of the proposal to provide units that exceed the requirements of the ADG, including the outperformance of the solar access requirements resulting from the northern orientation of the units and the generous setback to the north. 2. In cross-examination on increasing the intensity on the site, Mr Betros opined specifically that the increased intensity proposed can be accommodated on the site. He forms this opinion based on his view that the proposal does not exhibit any of the indicia that the density cannot be achieved on the site, which would, in his experience, be present if the proposal sought to fit too much on the site. Consistent with that lack of indicia for excess intensity is his observation of compliance with the ADG, including that each of the apartments are larger than the minimum size stipulated in the ADG and have significantly larger private open spaces than the minimum size in the ADG. 3. Further, in cross-examination on the funding for infrastructure to support an increase in floor space, Ms McGrath conceded that the additional contributions payable by the developer on the proposed altered development (pursuant to s 7.11 of the EPA Act) would fund any additional infrastructure required as a result of the additional floor space. There is also additional contributions payable for the affordable housing contribution (pursuant to cl 7.13 of the SLEP 2012) on the proposed altered development. 4. The request is also supported by a Traffic Impact Statement dated 22 December 2017 by Traffix that considers the traffic impact and concludes that the additional vehicle trips generated by the additional units "are expected to have negligible impacts being well within the level of fluctuations in traffic experienced daily." 5. Additionally, both Mr Betros and Ms McGrath agree that the proposed development is consistent with the objectives for development in the B4 Mixed Use zone. Evidence in response to the request 1. Ms McGrath's evidence is that the proposal is not consistent with the objectives of the FSR development standard as it is an overdevelopment of the site. She forms this opinion based on the 15% exceedance of the permitted FSR and the additional 11 residential units that are proposed. 2. Further, she opines that the proposal seeks to increase the density of the site but fails to demonstrate why compliance with the FSR development standard is unreasonable or unnecessary. Her view is that Baron wants to increase the density without any demonstration of a better outcome. 3. Ms McGrath therefore opines that the proposal does not satisfy objectives (b) and (c) of cl 4.4 of the SLEP 2012 as the proposed altered development exceeds the density envisaged for the site and the surrounding area. 4. Further, she considers that the reasons provided for exceeding the standard, which refer to the absence of physical built form increase and to there being no amenity impacts, does not justify exceeding a key development standard. Whilst the cl 4.6 request argues that the FSR variation will introduce an additional 11 units to the locality which represents a more efficient use of the site and a better planning outcome, she observes that the infill of the voids removes the spaciousness and access to light that provided a high level of amenity to living areas of these units. She considers that Commissioner O'Neill's judgment states that when considering the approval of the original development that significant weight was given to the high level of amenity achieved with the internal voids within 12 of the north facing units. Ms McGrath therefore concludes that removal of the voids cannot be considered as a better planning outcome. 5. Ms McGrath also opines that allowing an exceedance to the FSR in this manner would set an undesirable precedent in the area, and there is a public benefit in maintaining the development standard that must be considered. In particular, she considers that the FSR control is in place to strategically manage densities that correspond with the capacity of existing and planned infrastructure. In that context, she opines that it is in the public benefit to maintain the FSR standard, thereby prohibiting incremental increases to the envisaged density such as what would occur through the proposed development. The parties' submissions with respect to the written request and consistency with objectives 1. In considering the FSR development standard in itself, Baron submits that in the present context, it is only a number. Baron submits that the envelope of the building has already been approved through the prior development consent, there are no discernible impacts caused by the increase in FSR brought about by the proposed altered development, there are no urban design issues, and the new units that will result from the proposed altered development will have good amenity. As such, Baron submits that the FSR development standard has no work to do, and cannot be considered as prescriptive or prohibitive. Baron submits that this is particularly so in circumstances where the standard has been eroded by the operation of the controls in the SLEP 2012 to allow additional FSR through cl 6.14, and cl 6.21. Clause 6.14 is described above at [14], and in its operation allows the additional FSR if a voluntary planning agreement is entered into to provide community infrastructure. Baron submits, through its counsel, that this is the equivalent of "writing a cheque". Clause 6.21 allows a further 10% FSR above the total permitted FSR if certain criteria are met concerning design excellence. 2. In addressing whether the request adequately establishes the reasons why compliance with the FSR standard is unreasonable and unnecessary, Baron refers to the five different ways in which this can be established as set out in Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827 ("Wehbe"), and recognised by the Chief Judge in Initial Action at [16-22]. In particular, Baron relies on the first, third and fourth of the five different ways identified in Wehbe. 3. Consistent with the first way, Baron submits that compliance is unreasonable or unnecessary because the objectives of the FSR development standard are achieved notwithstanding non-compliance with the standard. It relies on the evidence of Mr Betros in that respect, and also submits that the cl 4.6 adequately establishes that compliance is unreasonable or unnecessary for those reasons. 4. As for Baron's submissions based on the third and fourth of the five different ways identified in Wehbe, neither of those ways were identified in the written request as a basis for establishing that compliance with the FSR development standard is unreasonable or unnecessary. The third of the five ways is that "the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable" (Initial Action, at [19]). The fourth is that "the development standard has been virtually abandoned and destroyed by the Council's own decisions in granted development consents that depart from the standard" (Initial Action, at [20]). Baron submits that the additional FSR available through the SLEP 2012, as found in cl 6.14 and cl 6.21, erodes the FSR development standard and whether a development benefits from that additional FSR would not be discernible to a casual observer. The result of these two clauses is that a FSR standard can be varied by the SLEP 2012 by up to an additional one third. On this basis, Baron submits that, consistent with the third Wehbe way, it is not necessary to adhere to a control when the LEP allows departures from it. Similarly, Baron submits that, consistent with the fourth Wehbe way, the FSR development standard has been abandoned by the Council as it is only used as a starting point and additional FSR is permitted as a result of matters that do not necessarily relate to the purposes of FSR development standard. Baron therefore submits that compliance with the FSR development standard is unreasonable and unnecessary for those reasons also. However, given the absence of these two Wehbe ways from the cl 4.6 request, I am of the view that the submissions made with respect to them are not relevant to the question of whether the written request establishes that compliance is unreasonable or unnecessary. 5. Baron submits that the request establishes that there are sufficient environmental planning grounds to justify the departure to the FSR development standard. It submits that this is established by the request relying on the outperformance of all ADG requirements, and on the fact that the additional FSR generated by filling the voids does not cause any adverse amenity impacts on adjoining development. 6. Baron submits that the Court can be satisfied that consistency with the objectives of the development standard is achieved as there are no discernible amenity impacts, and the units all exceed the requirements of the ADG. With respect to the increased in intensity caused by the proposed altered development, Baron submits that firstly, the increase is marginal as there are merely an additional 7 bedrooms. Secondly, Baron submits that the additional contributions payable as a result of the proposed altered development will mean that any correlation between the increased intensity and the increased demand for infrastructure will be accommodated by that increase in contributions. 7. Whilst Baron acknowledges that each application must be determined on its merits, it refers to the decision of Tuor C on a modification application in BKA Architecture v Council of the City of Sydney [2016] NSWLEC 1492. In that matter, the Court allowed a modification that in-filled the voids of an approved building, which resulted in a breach of the FSR development standard. 8. Finally, Baron submits that the reasons for the decision of O'Neill C are irrelevant to determining the present application. Baron points out that, as distinct from a modification application made pursuant to s 4.55 of the EPA Act, the consent authority is not required to consider the reasons for the grant of development consent. As such, Baron submits that there is no particular reason to be constrained by the matters described by O'Neill C as being attributed "significant weight" in the grant of consent. 9. Conversely, the Council submits that the consequence of the breach of the FSR development standard is an increase in intensity that is not envisaged by the standard, and that creates more floor space confined within the same building envelope. The Council submits that compliance with the FSR development standard is not unreasonable or unnecessary given that the application removes voids which were observed by O'Neill C to provide significant amenity for the occupants of the units, and also given that the VPA, to be entered into by the developer, does not factor in the additional floorspace generated by the present development application. As such, the Council submits that the proposed development is not consistent with the objectives of the development standard because it does not fund the additional infrastructure required by the additional density generated by the proposal. The Council therefore submits that the additional density and intensity is not sustainable, and does not meet objective (b) of the FSR standard "to regulate the density of development, built form and land use intensity" or objective (c) "to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure." 10. The Council also submits that the cl 4.6 request does not outline any need for the change and there is no reason given as to why the proposal is warranted. Accordingly, the Council submits that there is no justification for the increased floor space or the increased intensity within the same building envelope. Further, it submits that what is advanced in the written request as reasons for why compliance is "unreasonable or unnecessary" ignores the negative consequences caused by filling the envelope, which include reduced amenity and the fact that the increased floor space is not accommodated in the VPA. 11. The Council submits that the environmental planning grounds set out in the request do not adequately justify the departure from the standard in circumstances where that departure results in reduced amenity by the filling of the voids, and where the additional need for infrastructure generated by the increased intensity is not accommodated by a VPA. 12. In considering the consequences that flow from filling the voids, the Council submits that the observations of O'Neill C are relevant to understand the impacts of the present application. The Council submits that, just as you cannot ignore what has been built when considering a development application for alterations and additions, you cannot ignore the reasons for the grant of consent when considering a development application for alterations and additions where the building has not yet been constructed. 13. Further, the Council submits that the mere fact that the envelope has been approved by O'Neill C does not justify the infilling of the voids within what was approved. In that respect, the Council relies on the planning principles in PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355, which concern the relationship between the FSR and building envelope controls. Critically, in describing the principles in [48], Tuor C states that the purpose of a building envelope control "is to provide an envelope within which development may occur but not one which the development should necessarily fill". She also states that "the fact that the building envelope is larger than the FSR is not a reason to exceed the FSR." The Council submits that the same principles apply in the present application, where the building envelope has already been approved by the grant of development consent. Accordingly, it submits that the mere fact that the building envelope has been approved does not mean that it should be filled or that the FSR non-compliance is justified. Findings on the breach of the FSR development standard 1. From the outset, I do not accept the submission of Baron that in the context of the present application the FSR is purely a number. A FSR development standard controls built form (bulk), scale, intensity and density. This is reflected in the objectives of the FSR development standard contained in cl 4.4 of the SLEP 2012, where objective (b) seeks to regulate density, built form and land use intensity (and to control its impacts on vehicular and pedestrian traffic), and objective (c) seeks to provide for an appropriate intensity. Similarly, objective (a) and (d) concerns the provision of an appropriate scale of development to accommodate development needs and to reflect the character of the locality. 2. In the context of the present application, there is no issue concerning the bulk and scale of the proposed altered development. However, the proposed development increases the intensity of the development on the site by adding floorspace and, with that additional floorspace, increasing the number of units within the same building envelope. I accept the Council's submission in that regard. The result is that there is a 40% increase in the number of units, from 27 to 38, and a 14% increase in the number of bedrooms, from 50 to 57. Although not all of the increase in the number of units can be attributed to the increase in floorspace, the increase in the number of units, and therefore in the intensity of the development, is significant. Much of that increase can be attributed to the additional floorspace. The intensity of a development is also directly relevant to the question of whether the additional FSR permitted by cl 6.14 is appropriate. Objectives (b) and (c) in cl 6.14(1), with which a consent authority must be satisfied a development is consistent before the additional FSR is permitted, concern density and intensity. It is clear, therefore, that in the present application the FSR is not simply a number but concerns a control on intensity and density. 3. Contrary to the position of the Council, any loss of amenity to individual units within the approved building occasioned by the proposed removal of voids is not relevant to the assessment of the increased intensity. This is because the amenity provided by those voids was to the benefit of units that are not part of the proposed altered development. In considering a development application, the Court's role is not directly concerned with whether the current application proposes something better or worse than what has been approved. The Court's role, in exercising the functions of the consent authority, is to assess the acceptability of the current proposal (in accordance with s 4.15 of the EPA Act). In the present circumstances, the internal configuration of the building is so altered by the development application that what must be assessed in determining the application is the amenity of the 38 units that are now proposed, and their intensity. There is no issue concerning the amenity of the new units, given that they exceed the requirements of the ADG. 4. As to intensity, I accept that there is overwhelming evidence that supports the proposition that the increase in intensity resulting from the present application can be accommodated in the development and on the site. I accept the evidence of Mr Betros that there is no indicia that suggests that the density cannot be achieved on the site, I accept that the increase in s 7.11 contributions will accommodate any additional demand for infrastructure, and I accept the evidence in the traffic report that the increased movements will have negligible impact. There is no evidence to support the Council's submission that additional funding through a VPA is required to provide the infrastructure to support the additional intensity and floorspace brought about by the application. 5. However, in circumstances where there is a breach of the FSR development standard, the fact that the increased intensity can be accommodated on the site does not mean that such intensity should be approved. The increase in intensity that results from the contravention of the FSR development standard can only be the subject of a development consent if I reach the requisite state of satisfaction required pursuant to cl 4.6(4)(a). There are two reasons why I am not so satisfied. The written request does not demonstrate that there are sufficient environmental planning grounds 1. Firstly, I am not satisfied that the written request has adequately addressed that there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds identified are not sufficient grounds to justify the intensity caused by the additional floor space that exceeds the FSR development standard. There must be some identifiable grounds that justify, or inform, the non-compliance with the FSR development standard. In the words of Preston CJ in Initial Action, "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" (at [24]). The written request simply promotes the benefits of carrying out the proposed altered development. Those benefits include maintaining the approved building envelope to ensure that there are no additional adverse impacts, maintaining compliance with the ADG requirements, and increasing the number of residential units. None of those benefits justify a contravention of the FSR development standard. Conversely, there is nothing in the request that outlines why the additional floorspace is required to achieve any of those ends. Specifically, maintaining the approved amenity outcomes is a product of the nature of the application and does not justify the additional FSR. Further, it is not sufficient to state that the units all maintain compliance with the ADG. Both the ADG (through SEPP 65) and the FSR development standard apply to the development, and compliance with one does not justify non-compliance with the other. Nor is it sufficient that the proposal provides additional housing which represents a "more efficient use" of the approved building envelope. Whilst that is a benefit of the proposed development, it does not justify the breach of the FSR development standard. As such, the request does not advance any environmental planning grounds that justify the contravention of the FSR development standard or the increased intensity caused by that contravention. 2. This reason alone is sufficient to prevent me from reaching the state of satisfaction required by cl 4.6(4)(a), and therefore prevents development consent from being granted. The written request does not demonstrate that compliance is unreasonable or unnecessary 1. Secondly, I am not satisfied that the request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Consistent with the first of the five Wehbe ways, the request goes some way to outline why compliance is unreasonable and unnecessary. It does so in two separate parts. The first part (p 3 of the request) outlines the absence of impacts, the reason for the application, and the financial contributions made associated with other development at the site. The second part (pp 4-5) outlines consistency with the objectives of the FSR development standard, and therefore seeks to demonstrate how the objectives are achieved notwithstanding the non-compliance with the FSR development standard. As a result, I am satisfied that the request demonstrates that each of objectives (a), (c) and (d) of the FSR development standard are met, as the built form remains the same and there are no adverse impacts caused by the increased intensity. However, I am not satisfied that the request demonstrates that objective (b) is achieved notwithstanding non-compliance with the FSR development standard. Objective (b) is "to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic". It is therefore concerned with the "regulation" of density, built form and land use intensity (and its impact on vehicular and pedestrian traffic). In the context of the present application, involving an increased intensity, there is nothing in the request that demonstrates how the land use intensity of the proposed altered development is consistent with the regulation sought to be achieved by the FSR development standard. As per Ms McGrath's evidence, the standard is in place to strategically manage densities, and an increase in the FSR in one development may have the effect of incremental increases across multiple developments which would be contrary to this. Objective (b) is concerned with this strategic management. There is nothing in the request that demonstrates that this is maintained notwithstanding the non-compliance, such as by demonstrating that what is sought is commensurate with the intensity of other development in the area. 2. Further, the submissions made on behalf of Baron, concerning the operation of the SLEP 2012 to allow departures from the FSR development standard, and seeking to establish the third and fourth Wehbe ways in which it can be demonstrated that compliance is unreasonable or unnecessary, are not made out by the request. Whilst this could have been the subject of a further amended cl 4.6 request, even if I was to be satisfied that one of the five Wehbe ways was established by the request, the request would nonetheless fall short of establishing sufficient environmental planning grounds to justify the contravention of the FSR development standard. Outcome of the appeal 1. Having not reached the state of satisfaction required by cl 4.6(4)(a)(i), cl 4.6(4) makes it clear that development consent must not be granted. Accordingly, there is no power to grant development consent and the development application must be refused. 2. The Court orders that: 1. The appeal is dismissed. 2. The development application D/2018/72 for alterations and additions to an approved 7-storey residential flat building at 17-19 and 21 Dunning Avenue, Rosebery, is refused. 3. Exhibits 2, 3, 4 and 5 are returned. ………………………. J Gray 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: 19 October 2018