Land and Environment Court New South Wales Medium Neutral Citation: Pinnacle Plus Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1162 Hearing dates: 5 April 2019 Date of orders: 05 April 2019 Decision date: 05 April 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: See [22] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; multi-dwelling development; exceedance of the height of buildings development standard. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Category: Principal judgment Parties: Pinnacle Plus Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Solicitors: D Baird, Baird Lawyers A Singh, Council of the City of Sydney File Number(s): 2018/104601 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2017/1792 to demolish the existing building and construction of 10 x 3 storey self-contained terrace dwellings with basement carpark (the proposal) at 146-154 Lawrence Street, Alexandria (the site) by the Council of the City of Sydney (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 5 April 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement of the parties was based on amendments made to the plans, including the following: * Deletion of trafficable roof top terrace; * Deletion of all balconies to Euston Lane; * The first and second floor volumes have been moved towards Euston Lane; * Increased separation between the two building volumes from 7m to 8.2m; * Reconfiguration of the basement; * Design changes and articulation to the Euston Lane façade and the volumes at the rear; * Amended schedule of finishes; * Amended waste management plan; * Increased landscaping; and * Changes to dwellings 5 and 6. 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 2. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised, pursuant to cl 4.6(2) of the Sydney Local Environmental Plan 2012 (LEP 2012). Planning framework 1. The site is zoned R1 General Residential pursuant to LEP 2012 (Land Zoning Map - Sheet LZN_010 of LEP 2012). The objectives of the R1 zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain the existing land use pattern of predominantly residential uses. 1. The height of buildings development standard is 12m (Height of Buildings Map - Sheet HOB_010 of LEP 2012). The objectives of the height of buildings development standard at cl 4.3 of LEP 2012 are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square: (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces. Contravention of the height of buildings development standard 1. The proposal has a height of RL24.71 at the lift overrun and this is 12.75m above existing ground level. The lift overrun is the only part of the building envelope that exceeds the height of buildings development standard. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by AB Planning Pty Ltd and dated December 2018. 3. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2011 (Initial Action [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the proposal meets the objectives of the height of buildings development standard; the main streetscape presentation of the built form of the proposal has a compliant height above existing ground level; the exceedance of the development standard is confined to the lift overrun associated with dwelling 6 and the numerical non-compliance is minor; the exceedance of the development standard for the lift overrun allows the proposal to achieve a compatible height transition with the town houses to the north of the site; and the exceedance of the development standard by the lift overrun does not result in any amenity impacts. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]). 4. The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), 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) (Initial Action [25]). 5. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard for the reasons given at [16] can be properly described as environmental planning grounds within the meaning identified by his Honour in Initial Action [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]). 2. I am satisfied that the proposal is in the public interest because it is consistent with the objectives of the B4 zone and the height of buildings development standard for the reasons set out at [16]; to ensure the height of development is appropriate to the condition of the site and its context; to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas; to promote the sharing of views; and to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the Development Application by relying on amended plans set out in condition 1 of the conditions of consent at Annexure A. 2. The applicant is to pay the respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 28 days from the making of these orders. 3. The appeal is upheld. 4. Development Application No. D/2017/1792 to demolish the existing building and construct of 10 x 3 storey self-contained terrace dwellings with basement carpark at 146-154 Lawrence Street, Alexandria basement carpark is approved, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (470 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2019