Land and Environment Court New South Wales Medium Neutral Citation: Newman v Canterbury-Bankstown Council [2020] NSWLEC 1099 Hearing dates: Conciliation conference held on 28 February 2020 Date of orders: 05 March 2020 Decision date: 05 March 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 28 days of the date of the orders. (2) The appeal is upheld. (3) Development Application No. 588/2016 for the demolition of the existing building and construction of a new five storey mixed-use development above basement parking at 1608-1612 Canterbury Road, Punchbowl, is approved, subject to the conditions of consent at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – construction of a five storey mixed-use development over basement parking – exceedance of the height of buildings development standard – conciliation conference – agreement between the parties. Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: Henry Newman (First Applicant) Judith Newman (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Gadiel (Solicitor) (Applicants) P Hudson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicants) Marsdens Law Group (Respondent) File Number(s): 2018/339393 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 deemed refusal of Development Application No. 588/2016 for the demolition of the existing building and construction of a new five storey mixed-use development above basement parking (the proposal) at 1608-1612 Canterbury Road, Punchbowl (the site) by Canterbury-Bankstown Council (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 28 February 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. 4. 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. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 4.6(2) and 6.4(3) of the Canterbury Local Environmental Plan 2012 (LEP 2012). Planning framework 1. The site is zoned B5 Business Development pursuant to LEP 2012 and the site is identified as "A" (refer to Sch 1 cl 1) on the Key Sites Map (Key Sites Map - Sheet KYS_002 of LEP 2012). Development in the B5 zone for land identified on the Key Sites Map for the purpose of residential accommodation is permitted with consent if the development is part of a mixed use development. The objectives of the B5 zone are: • To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations. 1. The height of buildings development standard for the site is 18m (Height Of Buildings Map - Sheet HOB_002 and cl 4.3(2) of LEP 2012). The objectives of the height of buildings cl 4.3(1) are: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities Contravention of the height of buildings development standard 1. The proposal has a maximum building height of 18.69m to the top of the lift overrun. The only elements of the proposal that exceed the height of buildings development standard are the lift overruns and the minor roof elements. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity dated 10 December 2019. 3. Clause 4.6(4) of LEP 2012 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) LEC Act, but should still consider the matters in cl 4.6(5) (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]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ 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. the 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 elements of the proposal that exceed the maximum height limit of 18m do not result in any amenity impacts on adjoining properties and cannot be seen from the public domain. The building has been raised to RL5.64 to avoid the risk of flooding and this raised level represents an increase in the height of the building by 500mm. 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. 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). The applicant's written request defends the exceedance of the development standard as a justified response to having to raise the building to avoid the risk of flooding. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground 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. The I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request. Stormwater management 1. I am satisfied that the development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and includes on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, for the following reasons: * The proposed site landscaping maximises permeable areas and incorporates 19.5% of the site area as deep soil landscaping which exceeds the minimum requirements; particularly when compared to the existing site which is covered in hard surfaces. * The proposal includes a rainwater tank with a capacity of 12 cubic metres which will be used for irrigation of landscaping onsite. * The peak stormwater runoff rates from the development will be attenuated by the 36 cubic metre onsite detention tank and this will avoid impacts related to stormwater runoff on the site, surrounds and the locality generally. Orders 1. The orders of the Court are: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 28 days of the date of the orders. 2. The appeal is upheld. 3. Development Application No. 588/2016 for the demolition of the existing building and construction of a new five storey mixed-use development above basement parking at 1608-1612 Canterbury Road, Punchbowl, is approved, subject to the conditions of consent at Annexure 'A'. ____________ Susan O'Neill Commissioner of the Court Annexure A (198 KB) ********** 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: 05 March 2020