Land and Environment Court New South Wales Medium Neutral Citation: Bettar v The Council of the City of Sydney [2019] NSWLEC 1225 Hearing dates: 15 & 20 May 2019 Date of orders: 22 May 2019 Decision date: 22 May 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is granted leave to amend the development application by relying on the amended documentation referred to in condition 1 of the conditions of consent at Annexure A. (2) The applicant's written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) seeking a variation of the development standard in clause 4.4 of the SLEP is approved. (3) The appeal is upheld. (4) Development consent is granted to Development Application No. D/2018/879 for significant alterations and additions to an existing storage building located at 600 Botany Road, Alexandria including the continued use of the existing building as a storage premises comprising retention of the existing outer walls and ground level slab and construction of four new levels within the existing building footprint including ancillary ground floor office showroom, car parking and loading dock subject to the conditions in Annexure A. (5) The exhibits are returned except for Exhibits A and 5. Catchwords: APPEAL – significant alterations and additions to storage facility development – contravention of development standard for FSR – adequacy of cl 4.6 written request Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environment Plan 2012 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Paul Bettar (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: S Duggan SC (Applicant) I Hemmings SC (Respondent) Solicitors: Mills Oakley (Applicant) Sydney City Council (Respondent) File Number(s): 2018/292060 Publication restriction: No Judgment 1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council's refusal of Development Application No. D/2018/879 for significant alterations and additions to an existing storage building located at 600 Botany Road, Alexandria (the site). 2. The development is described at paragraph 2 of the Council's Amended Statement of Facts and Contentions (SOFC) (Exhibit 1) in the following terms: "…the continued use of the existing building as a storage premises comprising retention of the existing outer walls and ground level slab and construction of four new levels within the existing building footprint including ancillary ground floor office showroom, car parking and loading dock." 1. The intention is to retain the form of the existing building components as viewed from Ralph and Botany Roads and to improve the streetscape outcome with new levels significantly recessed. The use of the storage, hours of operation and the gross floor area (GFA) remains the same as existing, whilst allowing for a significant upgrade to the functionality and appearance of the premises in the public domain. In terms of amenity impacts, the Council accepts that there are no shadow, privacy, view loss or visual bulk concerns and the built form will be perceived as compatible with or subservient to buildings within the immediate visual catchment, particularly when perceived in conjunction with the 6 storey mixed use building opposite. 2. That said, the development has a maximum floor space ratio (FSR) of 2.14:1 which exceeds the permissible FSR of 2:1 under cl 4.4 of the Sydney Local Environment Plan 2012 (LEP) and the applicant has provided an amended cl 4.6 written request dated 17 May 2019 to justify the contraction of the FSR standard in this case. 3. The applicant's amended cl 4.6 written request is supported by the Council's planner, Ms Tahlia Alexander, and in light of the planners' supplementary joint report (Exhibit 5), the Council has now indicated that it no longer agitates for a refusal of this amended application. Noting that the two objectors who lodged written submissions in response to the original DA (copies of which are included in the Council Bundle) having been notified of the amended plans, do not seek to be further involved in the hearing. 4. However, before I undertake the requisite merit assessment under s 4.15 of the EPA Act I need first to deal with the jurisdictional prerequisite raised by breach of the FSR standard in cl 4.4 of the LEP and the applicant's cl 4.6 written request to vary that standard. The applicant's written request to contravene the FSR development standard 1. The applicant's cl 4.6 written request to justify the variation of the standard is prepared by ABC Planning and dated 17 May 2019 (attached to the supplementary joint report of the planners (Exhibit 5)). It states that it has been prepared having regard to the judgment of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action). 2. As identified at [13] – [14] of the judgment in Initial Action, the standard instrument cl 4.6 sets out preconditions that must be satisfied before the Court can exercise the functions of the consent authority to exercise the power to grant development consent. 3. These preconditions have been described as two positive forms of opinion or satisfaction. First, I must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3); and secondly, that the proposal will be in the public interest because it is consistent with the objectives of the contravened standard and the zone. 4. Clause 4.6(4) of the LEP provides 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. Next, I must also be satisfied that the concurrence of the Secretary has been obtained. In that regard, the Court on appeal has power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the Land and Environment Court Act 1979 (LEC Act), but should still consider the matters in cl 4.6(5) of the LEP: at [29] of Initial Action. 2. As discussed in Initial Action at [25], the applicant bears the onus to demonstrate that the matters in cl 4.6(3) – as required by cl 4.6(4)(a)(i) have been adequately addressed by the written request in order to enable the Court exercising the functions of the consent authority to grant consent. 3. In Initial Action at [17] – [21], the Court accepted that the five ways to demonstrate that compliance with a standard is unreasonable or unnecessary outlined as in Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe) at [42]-[51] were sufficient to establish that compliance is unreasonable and unnecessary for the purposes of cl 4.6(4)(a)(i). In this case, the applicant's written request has elected to rely on the first test in Wehbe to submit that compliance with the FSR development standard in cl 4.4 of the LEP is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding the 7% exceedance. 4. At pp 11-12 of the written request, the applicant addresses each of objectives of the standard in cl 4.4. 5. With respect to objective cl 4.4(1)(a) – to provide sufficient floor space to meet anticipated development needs for the foreseeable future – the written request states: "…that the redistribution of floor space within the existing building and over two additional levels allows for improved self-storage facilities, whilst also allowing for the relocation and upgrade of sales office, staff facilities and parking/loading facilities on the ground level which improves the quality and functionality of the storage facility. The parking and loading area has been increased where loading docks have been moved further into the building to allow service and waste collection vehicles to enter and exit the site in a forward direction. Three car spaces are provided which is consistent with the approval for DA U00-00442. It is considered that no additional car parking is required as the amount of floor space is not increasing." 1. By way of summary, the written request concludes with the following submission: "it is considered that the FSR variation whilst the same as existing on the subject site, provides sufficient floor space to support the economic viability of the existing building for the foreseeable future as it provides opportunity for a higher quality and better functioning storage facility units without increasing the intensity of the development in regard to storage area, overall GFA and parking or traffic generation". 1. With respect to objective cl 4.4(1)(b) – to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic – the written request states: "As demonstrated on the figures prepared by the project architect, the proposed works will reduce the land-use intensity associated with the storage facility. The associated office area increase is unlikely to generate any intensification in relation to traffic and parking as it represents a mere upgrade of existing office space. In any event, if there was a slight increase in staffing, the site is well served in relation to public transport. Vehicle generation is also controlled by reducing the car parking rate of 32 spaces as originally proposed to 3 car spaces which is consistent with the approval of DA U00 – 00442. Four loading docks are also proposed which is consistent with the DA U0000442 approval. The redevelopment of the storage facility relocates all loading services off Ralph Street and into the building by relocating floor space to the proposed upper levels which minimises congestion issues associated with the storage facility. This is considered to significantly assist in achieving the objectives of the FSR. The accompanying response from Paul Corbett, of PDC Consultants, provides comprehensive assessment to confirm that the additional FSR would not generate any inconsistency with this objective." 1. With respect to objective cl 4.4(1)(c) – to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure – the written request states: "it is considered that there is sufficient infrastructure in place to support the intensity of development on the subject site and associated FSR will are variation, noting that no additional FSR is proposed." 1. With respect to objective cl 4.4(1)(d) – to ensure that new development reflects the desired character of the locality in which is located and minimises adverse impacts on the amenity of the locality – the written request states: "The proposal is to significant alterations and additions to the existing building. The plans have been amended to provide two additional, highly recess levels instead of one additional level which occupied the entire building footprint. The recessed upper levels increase the setback to the northern residential neighbour at one Shirley Street which minimises visual and amenity impacts associated with the additional levels are set back 6 m from the northern boundary, whilst the residential units to the North setback further 3 m. This separation distance is considered adequate to allow for significant the day light and ventilation to south facing openings of the residential units. In addition, the separation distance, as well is use of high quality materials and finishes is considered to reduce visual outlook impacts associated with the upper level addition. The four-storey scale of development (including recessing the upper levels) is modest in relation to the bulk and scale of other developments in the immediate vicinity of the site which are six and seven storeys. It is therefore considered that the FSR variation is redistributed from existing will not generate any unreasonable adverse amenity impacts in neighbouring properties." 1. Following a consideration of the objectives of the standard, I am satisfied that the written request has adequately demonstrated that compliance with the FSR is unreasonable or unnecessary in the circumstances of the case because the objectives of the FSR standard can be achieved notwithstanding non-compliance. Therefore, cl 4.6(3)(a) is dealt with as required by cl 4.6(4)(a)(i). 2. Next, the applicant's written request seeks to address cl 4.6(3)(b) by setting out sufficient environmental planning grounds to justify contravention of the development standard. They are discussed in several places within the amended written request. 3. Relevantly, at p6, the written request records that at the hearing, on day 1 - the Council raised a concern that the original cl 4.6 written request did not address the potential for the intensity of the use of the site to increase under the proposal due to the different manner in which the proposal will be carried out when compared to the current development consent DA U00-00443. In particular, because the proposal will result in a more efficient operation than the current development. To address this, the applicant was given leave to file an amended cl 4.6 written request and in the current document it refers to the PDC Traffic Impact Assessment report dated 25/7/2018 and letter of response to the Traffic & Parking Contentions dated 12/3/2019 to support its submission that there will be no change to the floor space of the proposed development when compared to the current development. In that regard, the written request states that: "…in accordance with the DCP and the LEP the proposed development is therefore not required to provide any additional car parking, bicycle parking or service vehicle parking spaces other than those required under the current consent. Accepting the RMS research that the floor space of the development would be the key indicator for assessing any change to the site traffic generating the applicant contends that the application will not result in any change in traffic generation of the development – but actually result in a decrease in floor space of the self-storage facility and an increase in the ancillary office area. While typically an increase of office would result in an increase in 4 or 5 vehicles trips during the weekday peak in this case this will not elevate given the office is ancillary to the storage use. Any minor increase in office traffic generation would be offset in the reduction in the traffic generation of the self-storage facility (due to a reduction in the self-storage floor space)". 1. In summary, the environmental planning grounds relied upon in the written request includes the following: * The FSR variation will be imperceptible and will not generate any discernible intensification from that which exists. * There will be no change to the floor space of the proposed development when compared to the current development consent DA U00-00443. In fact, the application will result in a decrease in floor space for the self-storage facility from 5825m2 to 5399m2. Thereby no resulting change in the traffic generation of the development compared to the current development consent. * In regard to the existing office and proposed office areas, there is an increase from 50m2 to 364m2, however, the proposed revised office area will not result in any intensification of the use of the site as the proposal merely improves the layout and amenity of the office components, noting the limited nature of the existing office and retail/display components. * There is no increase in staff. In fact, there will be a reduction in the storage area, thereby demonstrating that increased staff numbers would not be required. * Any minor increase in office traffic generation would be offset by the reduction in the traffic generated by the reduced self-storage area. The number of cars and service vehicles accessing the site will therefore remain unchanged when compared to the current proposal. * The proposal has been redesigned to accommodate a forward and exit of waste collection vehicles in a forward direction in accord with Sections 3.11.13 and 5.8.2.6 of the Sydney Development Control Plan, AS 2890.1 and AS 2890.2 and result in a much safer outcome for drivers, pedestrian and cyclists. There will be no increase loading/unloading and parking areas but rather improved manoeuvrability, safety and access. 1. After reading the whole of the amended written request, I am satisfied that the environmental planning grounds stated are, by their nature, "environmental planning grounds" as understood by the Court in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. That is, they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). Furthermore, they focus on the aspect of the development that contravenes the development standard and not the development as a whole (Initial Action at [24]). 2. Accordingly, for the above reasons, I am satisfied that the written request has adequately addressed the matters required to be demonstrated by subcl (3)(a) and (b). In forming this view, I appreciate that I do not need 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 written request has adequately addressed the matters required to be demonstrated by cl 4.6(4)(a)(i) – and that is the case at hand. Whether the development is in the public interest because it is consistent with the objectives of the development standard and the zone 1. Clause 4.6(4)(a)(ii) requires that I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives the development within the zone in which the development is proposed to be carried out. The second opinion of satisfaction in cl 4.6(4)(a)(ii) requires that I am actually satisfied that the development is consistent with the objectives of the standard and the zone. If so, then I can be satisfied that it is in the public interest (Initial Action at [27]). 2. I have already accepted that the written request demonstrates that the development is consistent with the objectives of the FSR standard and I accept and repeat that evidence for the purposes of subcl (4)(a)(ii). And, when I also take into account my observations of the site and locality at the Court view and the agreed evidence of the planners about this in the supplementary joint report (Exhibit 5) and the views expressed in their earlier report (Exhibit 2) as allowed under cl 4.6(4)(a)(ii), I am now actually satisfied that the development is consistent with the objectives of the standard. That is, that the FSR is redistributed from the existing and will not generate any unreasonable adverse amenity impacts in neighbouring properties. 3. Therefore, it is consistent with objective cl 4.4(1)(d) in that it will ensure that new development reflects the desired character of the locality in which it is located and does minimises adverse impacts on the amenity of the locality. Furthermore, for the reasons stated by the planners, I am also satisfied that the development will be consistent with objective cl 4.4(1)(c) in that it will provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. It is also my view, as demonstrated on the figures prepared by the project architect, that the proposed works will reduce the land-use intensity associated with the storage facility and therefore is consistent with objective cl 4.4(1)(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic. 4. With respect to objective cl 4.4(1)(a) – to provide sufficient floor space to meet anticipated development needs for the foreseeable future – I accept that the development is consistent with the redistribution of floor space within the existing building and over two additional levels and allows for improved self-storage facilities, whilst also allowing for the relocation and upgrade of sales office, staff facilities and parking/loading facilities on the ground level which improves the quality and functionality of the storage facility. No additional car parking is required as the amount of floor space is not increasing. 5. The objectives of the B7 Business Park zone are: * to provide ranges of office and light industrial uses * to encourage employment opportunities * to enable other land uses that provide facilities services to meet the day-to-day needs of workers in the area * to ensure uses support the viability of nearby centres. 1. The written request addresses consistency with each zone objective and concludes that the development is consistent because the proposal results in a reconfiguration of a permissible use offering an enhanced sales office, staff facilities and car parking/unloading area. The planners also now agree that the proposal improves the functionality and amenity of the storage facility while also providing parking unloading facilities to better service the building. In short, the evidence is that the development supports and enhances the economic viability of the storage facility. It will not result in an intensification of the site and I accept that this will ensure the proposed use will support the viability of nearby centres. It will encourage employment opportunities by providing an office and light industrial use that has staff- albeit while there will not be an increase in staff numbers nonetheless there will be employment opportunities. For those reasons, I am satisfied as required by cl 4.6(4)(a)(ii) that the development is consistent with the zone and standard objectives and is therefore in the public interest. 2. Lastly, I am also satisfied, having considered the matters in cl 4.6(5) of the LEP (as discussed at [29] in Initial Action), that in the absence of the concurrence of the Secretary that it is appropriate in this appeal to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act. Conclusion 1. The parties have provided me with agreed draft conditions of consent dated 17 May 2019. They reflect the evidence. And, as I have decided to approve the applicant's cl 4.6 written request to vary the standard in cl 4.4 of the LEP and there is no other jurisdictional impediment to the grant of a conditional development consent to this proposal which, after assessment, is clearly acceptable on its merits, I have decided to grant consent to the DA. 2. Accordingly, the Court orders are: 1. The applicant is granted leave to amend the development application by relying on the amended documentation referred to in condition 1 of the conditions of consent at Annexure A. 2. The applicant's written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) seeking a variation of the development standard in clause 4.4 of the SLEP is approved. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. D/2018/879 for significant alterations and additions to an existing storage building located at 600 Botany Road, Alexandria including the continued use of the existing building as a storage premises comprising retention of the existing outer walls and ground level slab and construction of four new levels within the existing building footprint including ancillary ground floor office showroom, car parking and loading dock subject to the conditions in Annexure A. 5. The exhibits are returned except for Exhibits A and 5. _______________________ S Dixon Senior Commissioner of the Court Annexure A ******** Amendments 23 May 2019 - Correction made to typographical errors at [5] and [7]. 24 May 2019 - Correction made to typographical error at [23] 24 June 2019 - Correction made to typographical error at [25]. 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: 24 June 2019