Land and Environment Court New South Wales Medium Neutral Citation: Form Architects (Aus) Pty Ltd v Hunter's Hill Council [2019] NSWLEC 1120 Hearing dates: 8 March 2019 Date of orders: 25 March 2019 Decision date: 25 March 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [89] and [90] below Catchwords: CONSENT ORDERS: development application for alteration and additions to existing dwelling – contravention of the FSR development standard – contravention of the landscape area development standard BUILDING INFORMATION CERTIFICATE: demolition works Legislation Cited: Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 – Development Standards Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137 Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council [2007] NSWLEC 827 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 442 Texts Cited: Hunters Hill Development Consolidated Control Plan 2013 Category: Principal judgment Parties: Form Architects (Aus) Pty Ltd (Applicant) Hunter's Hill Council (Respondent) Representation: Solicitors: C Shaw, Shaw Reynolds Lawyers (Applicant) J Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/251029; 2018/270322 Publication restriction: No Judgment 1. COMMISSIONER: This judgment concerns two related Class 1 appeals in respect of a partially constructed dwelling house and pool on a waterfront property at 39 Wybalena Road, Hunters Hill (the site). 2. I am told by the parties that they have reached an agreement as to how the appeals can be resolved, and they have asked me to make final orders reflecting their agreement (the Consents orders filed in Court on 8 March 2019). 3. Despite the agreed position of the parties, I am required to carry out an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act) in order to determine if it is lawful and appropriate to grant consent in each case. I am also required to consider the evidence and submission of objectors. In this case the facts raise jurisdictional matters which I will need to address but after I give some background to the applications. Appeal No 2018/270322 – (DA appeal) 1. The first appeal is made against the Council's decision to refuse a development application for building alterations and additions to the partially constructed dwelling and pool on the site. The prospective works are identified in the plans and information specified in Condition 2 in Part A of the General Conditions of Consent, which is Annexure C to the parties' proposed Consent Orders in the DA appeal (the prospective works). 2. The prospective works result in a breach of relevant development standards for Floor Space Ratio (FSR) and Landscaping under the Hunters Hill Local Environmental Plan 2012 (HHLEP). The applicant has lodged two cl 4.6 written requests seeking variation of these standards. 3. The cl 4.6 requests are Annexures A and B to the Consent Orders in the DA appeal. Appeal No. 2018/251029 – (BA Appeal) 1. The second appeal is made against the Council's refusal to issue the applicant with a Building Information Certificate (BIC). The application, which was filed with the Council on 28 May 2018, seeks to regularise the unauthorised works and authorise their use. The relevant areas of the existing building are shown in red on the plans entitled "Works As Executed" DWG No AR 22 01- AR0 07, which is Annexure A to the parties' Consent Orders in the BA Appeal. The Council has agreed to issue the BIC to approve the use of these areas subject to completion of the demolition works identified in Schedule 1, as required by the conditions in Part E and Part F of Schedule 1 conditions 1-16 of the deferred development consent. 2. The appeal in respect of the BIC is made under s 8.25 of the EPA Act within time. 3. On hearing an appeal, the Court may do one or more of the following: (3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. The Consent Orders 1. In short, the agreement reached (as reflected in the parties' Consent Orders), requires the applicant in the BA appeal to complete the demolition works identified in Schedule 1, in accordance with the conditions in Part E and F of conditions 1-16 of the deferred development consent (in the DA appeal) in order to allow for the issue of the Building Information Certificate (BIC). This will satisfy the deferred commencement condition 1 of the DA consent and enliven the development consent for the prospective works. Case management 1. The appeals were initially listed for a mediation before me at the site. This process resolved some of the issues but did not resolve the proceedings. The mediation was terminated and the parties made an application to the Court for the appeals to be listed before me for a hearing. 2. At the hearing, the parties consented to me having regard to my observations of the site and its environs undertaken at the time of the mediation. They also requested, and I so ordered, that the evidence in each appeal was evidence for all purposes. Decision 1. For the reasons that follow, I have decided that I do have power to make the orders proposed, and that it is appropriate to do so having regard to an assessment of the applications under the EPA Act against the evidence. Facts 1. The facts can be briefly stated. 2. The site has direct frontage to the Parramatta River and is highly visible from the waterway. 3. It has a total land area of 1163m2. The width at the street frontage is 12.9m before it narrows significantly at the M. H.W.M Foreshore boundary. The block is 78.336m deep. 4. The site falls from RL 13.38 at its street frontage to RL 1.66 at the foreshore and also features a significant and immediate drop at its street frontage. 5. The foreshore environment, along this strip of the peninsular incorporates natural rock intertidal zones and the Council has sought to ensure that development approved in the immediate vicinity of this development responds generally to the natural contours of the locality. 6. The site is located within a Conservation Area and a Riverfront Area under the HHLEP. Relevantly, it is an objective of the Riverfront Area that "development in these areas minimises visual impacts by appropriate sitting and design of buildings together with the conservation of existing trees" (b). 7. The site is also subject to a foreshore building line of 15m as mapped under the HHLEP. Expert evidence 1. The parties' town planning experts, Mr Stuart Harding (retained by the applicant) and Mr Adamson (retained by the Council) support an approval of each application. At paragraphs [5.1] – [5.14] of their joint report (Exhibit 2) they address the Council's contentions and conclude that these matters are now satisfactorily resolved by the amendments to the DA plans, the proposed conditions of consent and the demolition works outlined in Schedule 1 of the BA Appeal, which has also been incorporated as a deferred commencement condition in the DA consent. 2. In short their evidence is that the prospective works under the proposed DA consent are not only permissible but they also satisfy the following provisions of the HHLEP: 1. Clause 4.3 – Height of building; 2. Clause 5.10(2)(e)(i) and (4) – Heritage conservation; 3. Clause 6.3 – Stormwater management; 4. Clause 6.5 – Riparian land on adjoining waterways; 5. Clause 6.6 – Limited development on foreshore area; and 6. Clause 6.7 – Development on river front areas. 1. They also believe that the concerns raised by the adjoining neighbour (in response to the notification of the proposed consent orders) about preserving his views and privacy are appropriately addressed by the amended plans and agreed conditions. In fact, during their oral evidence in Court they agreed that after the completion of the prospective works (subject to the demolition works necessary to allow the grant of the BIC) there will be a "drastic" improvement in the built form and landscaping on the site. With Mr Harding confirming his written evidence that "the proposed landscape solution now far exceeds the quality and content, in terms of outcomes, that was in the original approved scheme. This includes significant work in the foreshore area and in the front setback to the street where there has been significant deep soil added as part of a very detailed and high quality landscape solution". 2. That said, the planners understood that their assessment was based on my approval of the applicant's two separate cl 4.6 written requests in the DA appeal for a variation of the FSR and landscaping development standards in the HHLEP. 3. The relaxation of these development standards is necessary to enliven my jurisdiction to deal with the DA appeal. Clause 4.6 written requests 1. The applicant's DA relies on two separate cl 4.6 written requests prepared by WILLANA URBAN Pty Ltd. They are annexed to the proposed Consent orders in the DA appeal. 2. Each written request states that it has been prepared with particular attention directed to the criteria required by cl 4.6 of the HHLEP and the relevant case law: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137; Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action); Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 (Micaul); Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. 3. Clause 4.6 provides, so far as is relevant: (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence. 1. While the provision is facultative, the permissive power in cl 4.6(2) to grant development consent for a development that contravenes the development standard is, however, subject to conditions. Furthermore, it is the applicant who bears the onus of demonstrating that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]. In Initial Action, Preston CJ explained the operation of the clause at [12]-[27]. 2. In that regard. cl4.6(4) sets out preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard. 3. The first precondition is set out in cl 4.6(4)(a), and it requires the Court on appeal exercising the functions of the consent authority, to form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii). The matters in cl 4.6(4)(a) are "a jurisdictional fact of a special kind": see Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 442 at [25]. However, once these opinions of satisfaction are formed then the Court has the power to grant development consent for development that contravenes the development standard: Wehbe v Pittwater Council at [36]. 4. In addressing cl 4.6(3)(a) in this case both of the applicant's written requests seek to demonstrate that compliance with each development standard is unreasonable or unnecessary based on the first test in Wehbe v Pittwater Council at [42]-[51]. In that regard each written request states that compliance with the relevant development standard is unreasonable or unnecessary because the objectives of the development standard in each case are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council at [42] and [43]. 5. With respect cl 4.6(3)(b), the applicant's written request addresses the "environmental planning" grounds as relating to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. That is they focus on "environmental planning grounds" by their nature as discussed by the Court in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. That is they focus on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds: cl 4.6(3)(b). Or as the Court in Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 stated the written request seeks to advance environmental planning grounds and to justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: [15]. 6. Next, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]. 7. These positive opinions of satisfaction in cl 4.6(3)(a) and (b) relate to the written request. Accordingly, I do not need to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b): Micaul at [39]. 8. 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 particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. This second opinion of satisfaction under cl 4.6(4)(a)(ii) requires that I am directly satisfied about these matters. That is, it is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii). 9. The last precondition in cl 4.6(4) that must be satisfied before the consent authority can exercise the power to grant development consent for development that contravenes the development standard is that the concurrence of the Secretary of the Department of Planning and the Environment) has been obtained (cl 4.6(4)(b)). Noting, as discussed in Initial Action that on appeal the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]. 10. With the legislative framework as outlined in mind I will now address each of the applicant's cl 4.6 written requests. Clause 6.9(2) of the HHLEP 1. Clause 6.9(2) is a development standard which fixes the minimum landscape area for dwelling houses and secondary dwellings. 2. Clause 6.9 provides: (1) The objectives of this clause are as follows: (a) to maintain the character and identity of Hunters Hill by ensuring that dwelling houses and secondary dwellings are surrounded and separated by individual gardens, (b) to soften the visual impacts of dwelling houses and secondary dwellings when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building, (c) to protect and preserve native vegetation in general, and in particular, native vegetation that occurs in a riverfront area or on riparian land, (d) to ensure that the size and scale of dwelling houses and secondary dwellings are compatible with the existing character of their surrounding locality, (e) to minimise the discharge of stormwater from any site, whether by drainage or by overland flow. (2) The landscaped area of any site on which development for the purpose of a dwelling house or a secondary dwelling is carried out must not be less than: (a) for each site with a direct frontage to the Parramatta River or the Lane Cove River – 60% of the site area, or (b) for all other sites – 50% of the site area. (3) For the purposes of subclause (2), the site area is to be calculated under clause 4.5 (3) and any area that has a length or a width of less than 2 metres is not to be included in calculating the proportion of landscaped area. (4) Despite subclause (2), the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40 square metres), but only if the proposed development would be consistent with the objectives of this clause. 1. Because this site has a direct frontage to the Parramatta River, the clause prescribes a minimum landscape area at 60% of the site: cl 6.9(2)(a). That is, unless the facts fall within subcl (4). 2. The table at p6 of the applicant's written request states that the landscape area for the proposed development is 57% of the site rather than 60%. This includes a 20.8% allowance for the areas that are not planted (being pools and paving) compared to an allowable 33% for such structures. 3. Therefore the variance with the 60% standard applied for is in the order of 3%. 4. In addressing cl 4.6(3)(a) the applicant's written request states that strict numerical compliance with the standard is unreasonable and unnecessary because the proposal is consistent with the environmental planning objectives in the standard. In particular, objective (a) which seeks: "to maintain the character and identity of Hunter's Hill by ensuring that dwelling houses … are surrounded and separated individual gardens". In that regard, the applicant's written request states "that surrounding development exhibits a range of scales and landscaping selections which do not result in an entirely cohesive character regardless of compliance with the relevant development standard". For that reason, and having regard to the minor departure from the standard (3% variance), the written request concludes that strict compliance would not result in a development more in keeping with the surrounding area. The written request also states: * To maintain the character and identity of Hunters Hill by ensuring that dwelling houses and secondary dwellings surrounded and separated by individual garden. The proposal allows for a dwelling house to provide significant and thoughtfully designed landscaping around the built form. It provides separation to adjoining dwellings and maintains the character and identity of Hunters Hill. I accept that in this proposal the design seeks to mimic the natural contours of the foreshore and it introduces into the middle of the site a landscaped courtyard which will break up the built form in the middle of the site, consistent with the surrounding built form where land has been subdivided between Wybalena Road and the riverfront, resulting in two or more dwellings extending up to the road with some form of garden or landscaping separating them. * To soften the visual impact of dwelling houses and secondary dwellings when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building. There is sufficient space is provided between the riverfront and the dwelling with an informal style with numerous trees and cascading ground cover. Significant deep soil is reinstated and designed with quality landscaping. This is demonstrated on sheet three of the submitted landscape plans and elevation HH on sheet 5. * To protect and preserve native vegetation in general, and in particular, native vegetation that occurs in the riverfront area or on riparian land. The site has had limited vegetation of any kind for a number of years. The proposed landscaping utilises a generous selection of native plants in groundcovers across the site and aims to reflect the natural topography and sections of rock outcrop that occurs on the site and adjoining properties. It thereby is consistent with this stated objective. * To ensure that the size and scale of dwelling houses and secondary dwellings are compatible with the existing character of their surrounding locality. The proposal provides good amenity to the future occupants while remaining compatible with the locality principally because it is compliant with the height controls and allows for sufficient landscape planting around the entire perimeter of the property. Importantly, this includes extensive landscaping proposed in an informal style between the foreshore and the building. It will therefore be compatible with the existing character of the surrounding area which is essentially dwellings set within a landscaped setting. * To minimise the discharge of stormwater from any site, whether by drainage or by overland flow. The DA provides for significant works been undertaken to ensure drainage is adequate for the site. 1. I am satisfied that the written request has adequately addressed the matters required to be addressed in cl 4.6(3)(a) by demonstrating that compliance with the development standard in cl 6.9 is unreasonable and unnecessary and the contravention is justified because development is consistent with the objective of the standard. 2. In addressing cl 4.6(3)(b), the applicant's written request states that there are several reasons why there are sufficient environmental planning grounds to justify contravening the standard. These reasons are set out at p11 of the document. 3. First, the written request states that the numerical non-compliance at 3% with the standard will not be discernible from the public domain because of the topography of the site, the existing built form and the comprehensive landscaping design and species proposed. Moreover, the impact to adjoining properties as a result of the variation of the standard would not be discernible. Irrespective of the breach, the detailed landscape plans achieve the desired character and visual based objectives of the standard and the R2 Low Density zone. There is no adverse impact in terms of visual amenity or view loss generated by the non-compliance with the standard. For that reason, the development is consistent with the provision of orderly and economic development, as required by the EPA Act, and the dwelling provides a positive environmental planning outcome for the site. 4. Based on the above I am satisfied as required by 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)(a) and (b). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). With respect to cl 4.6(3)(a) as already noted, the written request has relied upon the most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary; namely that the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council at [42] and [43]. The written request has addressed each of the objectives of the standard to, in my assessment, adequately demonstrate that contravention of the development standard is justified because the objectives are nonetheless achieved. 5. In respect of cl 4.6(3)(b), I am satisfied that the written request has adequately addressed the matters required to be demonstrated by the subclause for the following reasons. The grounds relied on by the applicant in the written request are "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. They relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. Furthermore, the grounds relied upon necessarily focus on the element of the development which has breached the standard (i.e. the 3% shortfall in landscaped area) and have not simply promoted the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. The reasons articulated in the written request are adequate to demonstrate the matters in cl 4.6(3). 6. Turning now to the second opinion of satisfaction, in cl 4.6(4)(a)(ii), the applicant's written request states that the proposed development will be in the public interest because it is consistent with the objectives of the standard in cl 6.9(1) that is contravened and the objectives for the R2 Low Density Residential zone in which the development is proposed to be carried out. 7. Unlike cl 4.6(4)(a)(i), the clause requires that I am directly satisfied about the matters in cl 4.6(4)(a)(ii). 8. The written request states that the development is consistent the zone objectives for the following reasons: * To provide for the housing needs of the community within the low density residential environment. The accommodation is low density residential accommodation design to meet the housing needs of the community. * To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the Garden suburb character and heritage values that distinguished the low density localities. The proposed development is an appropriate response to the character of the area. The built form allows generous and appropriate landscaping design, which respects the natural aspects of the foreshore and Riverfront. The dwelling house complies with the maximum building height standard and provides satisfactory setbacks to the street frontage and waterfront. * To provide high levels of amenity that is consistent with a low density residential environment. The dwelling house will provide high levels of amenity to future occupants of the premises. The proposed landscaping will enhance the site by providing a natural and informal appearance on the waterfront and accommodating landscaping along the extent of both side boundaries. Significant landscaping is also provided to the Street frontage. The reinstatement of soil to the front and side setbacks, courtyard area and foreshore results in a contemporary residence of high quality design, which is of a compatible bulk and scale to the surrounding area. The proposal adopts appropriate measures to ensure adverse amenity impacts are minimal in terms of visual and acoustic privacy and view loss. 1. Based on my observations of the site and environs and the amended plans before the Court, I am satisfied subject to the proposed conditions that the proposed development is consistent with the objectives of the relevant zone and the standard in cl 6.9. Therefore I accept that despite the contravention of the standard that the proposed dwelling is in the public interest. 2. In forming this view, I have had regard to the fact that the dwelling does achieve a high level of amenity that is consistent with a low density residential environment despite the numerical breach of the standard. The development also adopts appropriate measures to overcome the numerical breach to ensure that the new dwelling maintains the identity of Hunters Hill by introducing a contemporary dwelling which is compatible with the Garden suburb character and heritage values that distinguishes this low density residential locality. In short, the proposed development is an appropriate response to the character of the area. The built form allows generous and appropriate landscaping design, which respects the natural aspects of the foreshore and Riverfront. The non-compliance with the standard will result in a scale of development that is compatible with the existing and desired future character of the locality envisaged by the objectives of the standard and the zone. I am satisfied on the evidence before me that a high quality landscaped solution is provided between the buildings which is underpinned by significant soil depth. Furthermore, I am of the view that the reinstatement of significant soil within the front and side setbacks, as well as the foreshore area assists to achieve the relevant objectives despite the numerical breach of the standard. 3. Accordingly, as I am satisfied that satisfied that the development is consistent with the objectives of both the zone and the standard sought to be varied it follows that the proposed development is in the public interest and cl 4.6(4)(ii) does not preclude an approval of the variation to the standard in cl 6.9 in this case. 4. Lastly, I note that on appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Land and Environment Court Act 1979 (LEC Act). Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]. Having undertaken that requisite consideration of the maters in in cl 4.6(5), I find that there is no reason not to rely on s 39(6) of the LEC Act to allow me to vary the standard in cl 6.9 in this case. 5. Accordingly, I approve the applicant's cl 4.6 request to vary the landscaped area development standard in cl 6.9(2) of the HHLEP. Clause 4.6 request – Floor Space Ratio 1. The next jurisdictional matter that I need to deal with is the applicant's cl.4.6 written request which seeks to vary the development standard for FSR in cl 4.4(2) of the HHLEP. This written request is also prepared by WILLANA URBAN and is Annexure A to the Consent Orders in the DA appeal. 2. Clause 4.4(2) relevantly provides as follows: The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. Subclause 4.4(2), in association with the Floor Space Ratio Map of the HHLEP establishes a maximum FSR of 0.5:1 for the site. 2. Notwithstanding this, subcl (2A) states: Despite subclause (2), if a dwelling house on any land complies with clause 4.3, in respect of height, and clause 6.9 in respect of landscaping, there is no maximum floor space ratio for that dwelling house. 1. In this case, the proposal complies with cl 4.3, in respect of the building height however it does not comply with cl 6.9 in respect of landscaping area and therefore is subject to the maximum FSR of 0.5:1 prescribed by subcl 4.4(2). 2. The table on p7 at [3.8] of the applicant's written request records the maximum permitted and proposed FSR in this case. TABLE 1: PROPOSED VARIATION CONTROL PROPOSED DEVELOPMENT VARIATION 1.01:1 GFA – 1117.93m2 0.5:1 Basement 2 | 162.65m2 0.5:1 GFA – 581.5m2 Basement 1 | 315.60m2 696.43m2 Level 1 | 384.37m2 Level 2 | 315.31m2 1. The variation is 0.5:1 or 696.43m2 and resulting in a FSR of 1.01:1. 2. After setting out the context of the variation at par 3.9 of the written request, it lists the objectives of the development standard and then states that the underlying purpose of the development standard is to manage the scale of any future built form, in order to mitigate any adverse impacts on the character and amenity of the surrounding area. 3. Next, the written request identifies the physical features of the site including the fact the proposal is located on the western side of Wybalena Road, which slopes significantly down to the Parramatta River foreshore before noting that the built form is entirely compliant with the building height development standard and setbacks requirements to the street frontage and the river frontage. It then seeks to justify the variation of the standard on the basis that a large proportion of the gross floor area is attributed to habitable area located below ground level, within the building footprint of the above ground levels, thereby having negligible bearing on the visual extent of the built form. 4. According to the applicant's written request, subcl 4.4(2A) reinforces the underlying objectives of cl 4.4, namely to ensure that adverse impacts on the character and amenity of the surrounding area are mitigated. The written request then states that this underlying objective can be achieved without requiring a restriction of the FSR. In this instance, the proposal results in a dwelling house that complies with cl 4.3 with respect to the 8.5m height limit. It is only because the proposal does not meet the percentage of landscaped area required for the site at cl 6.9 that there is a landscape area and dimension required for the site. Notwithstanding the numerical variation to the landscaped area development standard, the written request states that this proposal has comprehensively considered landscaping for the site, resulting in a landscaped outcome which satisfactorily maintains the character and identity of the Hunters Hill locality. Namely, a high quality landscaped solution provided between buildings, underpinned by significant soil depth within the front and side setbacks, as well as the foreshore area. 5. The written request then states, notwithstanding the proposed FSR non-compliance, that the proposal will result in a built form that is compatible with the current surrounding area and the desired future character. The breach of the FSR will not disrupt any significant or iconic views, nor will it intrude on the amenity of adjoining properties or that private open space. (The fact that the development will not result in any adverse amenity impacts is one way of demonstrating consistency with the objectives of the standard (Initial Action at [94(c)] and Micaul at [34]). 6. That said, in dealing with cl 4.6(3)(a) the written request provides that strict compliance with the standard for FSR is unreasonable and unnecessary because the proposed development is consistent with the relevant objectives despite the numerical noncompliance with subcl 4.4(2) for the following reasons: "• Objective: To specify limits for the size of development that would be compatible with the character and potential of particular locations. The proposal will allow for a dwelling that provides a compliant building height and adequate setbacks and landscaping, which result in a development that is visually compatible with the character and potential of the surrounding locality. A considerable proportion of Gross Floor Area is located below ground level, within the building footprint and therefore, does not have bearing on the 'size' of the development as viewed from surrounding properties, the street frontage or the waterfront. • Objective: To encourage higher-intensity development in business zones that are well-serviced by public transport and shops. This is not relevant to the proposal as it is not located in a business-zoned area. Notwithstanding, the proposal remains a low intensity development as it is proposed to be used as a dwelling house. It complies with the building height development standard and provides generous landscaping in appropriate areas of the site. • Objective: To manage the density and intensity of multi unit residential development according to the purpose of each residential zone. This is not relevant to the proposal as it does not include multi unit residential development. • Objective: To encourage buildings that maximise the proportion of site area that may be retained as landscaped area. The proposed design has been arrived at following extensive consideration of the landscaped areas for the site. It results in a design which provides good amenity to future occupants while remaining compatible with the locality. The landscaping proposed provides an informal-style waterfront character between the foreshore and the building. Landscaping extends around the entirety of the dwelling house, with a courtyard area provided near the middle of the site and stepped landscaping between the dwelling and street frontage. The works proposed as part of this DA provide revised landscaping designs to enhance the existing landscaped areas on the site." 1. Accepting that achieving compliance with the relevant standard's objectives is a common way of demonstrating that compliance is unreasonable and unnecessary, I am satisfied for the reasons outlined on that basis that the applicant's written request has adequately addressed the matters required to be demonstrated in cl 4.6(3)(a). 2. With respect to cl 4(3)(b), I am also satisfied that the written request in seeking to justify the contravention of the standard has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. Again, the grounds relied upon necessarily focus on the element of the development which has breached the FSR standard and have not simply promoted the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. 3. In that regard, the written request states that irrespective of the breach of the FSR development standard the result will be a development which by its scale and character is compatible with the locality. The breach is largely attributed to habitable space within the below ground footprint and the proposed design and landscaping provides as appropriate and enhanced setting for the premises such that you do not appreciate the bulk generated by the increased FSR. Given that the surrounding development, albeit in a conservation area exhibits a range of scales and landscaping selections which do not result in an entirely cohesive character the applicant's written request states that regardless of compliance with the relevant development standards in the HHLEP, the strict compliance with the standard in this case does not result in any better planning outcome. There are no disenable adverse amenity impacts for the neighbours or when viewed from the waterway and other areas of the public domain. The applicant states that the breach does not negate the achievement of the relevant objects of the EPA Act in s 1.3 namely: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) … (f) … (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) … (j) … 1. The written request states that the applicable planning controls contemplate development with no maximum Floor Space Ratio on the Site for dwellings in the R2 zone and this acknowledges that the character and appropriateness of a dwelling can be achieved without the requirement of a numeric maximum Floor Space Ratio. The proposal is lower than the prescribed maximum height and provides a landscape design which meets the intent of Council's landscaped area controls, particularly at Clause 6.9 of HHLEP 2012. 2. The proposed non-compliance with the development standard would support rather than hinder the attainment of the objects of s 1.3(a) – (d), (g) and (h) of the EPA Act. These objectives are to encourage social and economic welfare of the community, the proper management of built and natural resources, good design and to promote and coordinate orderly and economic use and development of land. In this instance, strict compliance with the development standard would not result in any discernible benefits to the amenity of adjourning sites or the public. It therefore stands that the environmental planning grounds and outcomes that are particular to this development and this site are such, that a departure from the development standard in that context would promote the proper and orderly development of land." 3. Therefore I am satisfied that the analysis in the applicant's written request has adequately addressed the matter required to be demonstrated by cl 4.6(3) as required by cl 4.6(4)(a)(i). The Court's jurisdiction is therefore engaged. 4. With respect to cl 4.4(a)(ii), the applicant's written request states that the proposed development will be in the public interest because the development is consistent with the objectives of the zone and the FSR standard. I have outlined earlier why I accept that the proposed development is consistent with the objectives of the standard at [67] and in dealing with the first cl 4.6 written request in relation to landscaped area I have explained why I believe that the development meets the zone objectives. I come to the same conclusion in with respect to this written request and I do not need to repeat that analysis. 5. Accordingly I am satisfied that the proposal is consistent with the zone objectives in the R2 low density zone in which the development is proposed to be carried out and the relevant objectives of the particular standard in cl 4.4 as required by cl 4(4)(a)(ii). 6. Also for the reasons outlined in the first cl 4.6 written request for landscaped area I have come to the conclusion in this case that cl 4.6(4)(a) is satisfied. Merit consideration 1. In assessing the merits of the applicants before the Court in each appeal, I have had regard to my observations of the site and environment and the joint assessment of the parties' experts. 2. With respect to Contention 1 in the Councils' Statement of Facts and Contentions (SOFC) - Precedent and the public interest, the experts describe the development (in its amended form) as a vast improvement on the existing built form. Both agree that the development as proposed will result in a dwelling within a landscaped setting that is appropriate for its location on the foreshore. In particular, the experts support the proposed demolition and removal of the large areas of concrete slab and walls, hard structures on the foreshore and the reinstatement of these excavated areas with integrated landscaping including deep soil planting. Both experts believe that the proposed development now adequately addresses the negative impacts of the existing built form with Mr Harding describing the proposed landscape solution as "…far exceed[ing] the quality and content in terms of outcomes that was in the original approved scheme" (planning joint report at p4 at [5.1](SH)). While Mr Adamson believes that the replacement of the deep excavation and structures at the street frontage with a tiered landscaping approach which follows the contours of the site adds to the overall landscaping quality of the development and balances the built form to thereby satisfy the public interest in the context of the zone. 3. With respect to Contention 2, Adverse visual impact, the experts now agree that this contention has been resolved. The significant areas of excavation and structure exposed to the waterway are in their assessment now being reinstated as a high quality landscaped outcome. 4. With respect to Contention 3, it is sufficient to note that subject to certain demolition works as specified in the separate proceedings dealing with the Building Information Certificate (Appeal No. 2018/251029), Council is supportive of an approval of this conditional DA consent principally because a significant area of excavation and structure exposed to the waterway is being reinstated as a high quality landscaped outcome and this in turn serves to balance the scale of the development. 5. Mr Adamson is also of the opinion that the proposed changes in this location serve to satisfy the planning objectives for development on the foreshore in the SREPP 2005, HHLEP and zone objectives seeking development that among other things is compatible with the garden suburb character. I accept his expert assessment. 6. With respect to the desired character of Hunter Hill, having regard to its heritage and waterfront/river context (see cl 1.3(b)(i),(ii) and (iv) and Clauses 2.2.1, 2.2.2, 2.2.3 and 2.2.4 of the Hunters Hill Development Consolidated Control Plan 2013 and the R2 Low Density Zone, the experts agree that the proposed demolition and extensive landscaping treatment provides for a dwelling with an external presentation similar to the original approval. At the street frontage, Mr Adamson notes that fencing and hard driveways have been removed, altered and reduced. The large substation has also been removed. The street frontage is now said to be appropriately responsive to the street frontage in the context of the zone. I accept this expert assessment. As Mr Harding states "A major focus of the landscape theme has been the provision of benching and soil over rock topography in the front setback along with the removal of substantive hard surfaces. This significantly increases the presentation of a building in a landscaped setting which is the overarching theme in the planning controls" (Exhibit C at p6 [5.3]). 7. The Hunters Hill Conservation Area relies on the vegetation and natural features as well as built form. Accepting Mr Adamson assertion that landscaping is critical in maintaining the garden setting of the conservation area, the experts are satisfied that the reinstatement of the vegetation at the foreshore and street frontage has addressed any heritage concern raised in respect of compliance with relevant heritage provisions of the Council DCP. The Council originally approved a contemporary dwelling balanced by landscaping. It did not involve the removal of a heritage item, nor does it adjoin any listed items. Mr Adamson believes the proposal has a neutral effect on the character of the conservation area. 8. With respect to height, excavation changes to the topography, the experts agree that the contention has been resolved. The reinstatement of the contours facing the waterway will provide an appropriate response to the development when viewed from the waterway. The side elevations display a compliant maximum height when the original ground line is considered. Visual impact has been resolved by the amended plans and the demolition works allow for more planting. 9. The condition precludes use of the dwelling as a dual occupancy (Condition 12). Conclusion 1. Therefore, for the reasons outlined above I am satisfied that the proposed Consent orders in each case are not only lawful but are appropriate after a merit assessment under the EPA Act. Appeal No. 2018/270322 1. With the consent of the parties, the Court orders: 1. Leave is granted to the Applicant to amend its Class 1 Application (Appendix 1) to remove references to change of use of the subject premises and rely on new plans and information specified in Condition 2 in Part A General Conditions of the Schedule 1 conditions of Annexure C to these orders. 2. The applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment to the development application allowed by Order (1) above which costs are agreed in the amount of $75,000.00 and are payable immediately. 3. The clause 4.6 request to vary the floor space ratio development standard contained in clause 4.4(2) of Hunters Hill Local Environmental Plan 2012 prepared by Willana Urban dated March 2019 is upheld, a copy of which is at Annexure A. 4. The clause 4.6 request to vary the landscaped area development standard contained in clause 6.9(2) of Hunters Hill Local Environmental Plan 2012 prepared by Willana Urban dated March 2019 is upheld, a copy of which is at Annexure B. 5. The appeal is upheld. 6. Deferred commencement development consent is granted pursuant to section 4.16(3) of the Environmental Planning and Assessment Act 1979 to Development Application No. 2018/1065 for proposed new works at 39 Wybalena Road in accordance with the conditions set out in Annexure C. This deferred commencement consent does not operate until the applicant satisfies the consent authority, in accordance with the regulations, as to the matters specified in the conditions under the heading "Deferred Commencement Conditions" set out in Annexure C. Upon the consent authority being satisfied as to the matters specified in the conditions under the heading "Deferred Commencement Conditions" set out in Annexure C this consent will operate subject to the operational conditions set out in Annexure C under the heading "Schedule 1 conditions". 7. The exhibits are returned except for Exhibits 3, 4 and A. Appeal No. 2018/251029 1. With the consent of the parties, the Court orders: 1. The appeal is upheld. 2. The applicant is to carry out demolition works as identified in Schedule 1, in accordance with the conditions in Part E and Part F Conditions 1 to 16 of the Schedule 1 conditions of the deferred development consent issued in Land and Environment Court proceedings 2018/270322 by 30 November 2019. Notes 1. The Court notes the agreement of the parties that: 1. The Council will issue a Building Information Certificate in respect of the whole of the building that has been constructed on the land including the works carried out under development consent no. 2011-1062, the unauthorised works (other than unauthorised works done on the jetty, pontoon and piles) shown in red on plans titled "Works As Executed" DWG No AR22 01-AR50 07, which are Annexure A to these orders, and the works carried out in accordance with Order (2) above. 2. The Building Information Certificate referred to in (1) shall be issued by Council within 14 days of Council being provided with documentation certifying that the works in Schedule 1 have been completed and it being satisfied in relation to those works. ……………………. S Dixon Senior Commissioner of the Court Appeal No. 2018/270322 Annexure A Annexure B Annexure C Appendix 1 Appeal No. 2018/251029 Schedule 1 Annexure A 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: 27 March 2019