clause 4.6 exception to development standard height of

Clause 4.6 Exception to Development Standard

– Height of Building

Blacktown LEP 2015

Proposed shop top housing development

Lots 3 & 4 Premier Lane, Rooty Hill

August 2018

DDC | Clause 4.6 Variation – 4.3 HOB | Page 1

1 Introduction

1.1 The variation being requested

Summary of Proposed Variation

Address: Lots 3 and 4 Premier Lane, Rooty Hill

Proposal: Shop top housing containing 29 dwellings and

two commercial suites above basement parking

EPI applicable: Blacktown Local Environmental Plan 2015

Zoning: B2 – Local Centre

Standard being varied: Building Height (Clause 4.3)

Numeric measure of variation: Allowed: 14m

Proposed: m

Variation: 4.13m (worst case for lift overrun)

920mm (worst case for main building form)

29.5% (for lift overrun)

6.6% (for main building form)

The height of the main building form is just above the height allowance as a result of

the larger ground floor ceiling height. A 4.5m ground level height is requested by

Council for the loading bay associated with the waste room. The roof structures exist

due to the activation of the roof terrace. These structures form an important part of the

overall design in providing some light weight structures to soften the upper part of the

building. This is shown clearly in the architectural sections and in the height plane

diagram (below). Detailed height plane breaches are in included in the architectural

plans. Zoomed in diagrams with height notations are attached at Appendix 1.


Relevantly, the SEE has outlined that the rooftop structures have been designed as

architectural roof features, however Clause 5.6 of the LEP as not been adopted by

Blacktown. Notwithstanding, the clear intention of such a clause is to allow for

interesting structures that are above height but help tie together the overall design of

the building. To summarise the justification in the SEE, the following points are made:

The roof elements have been carefully designed to be decorative and

integrated with the light roofs that are provided above the balconies. The

materiality and colours coordinate the roof structures with the balconies on the

front and rear facades.

The roof top structures aim to conceal or soften the appearance of the lift

overruns and plant.

This report argues that there are no impacts that are so great that they warrant strict

compliance with the height control.

This application has been prepared in accordance with the NSW Department of

Planning and Environment guidelines (“Varying development standards: A guide”,

published by the NSW Department of Planning and Infrastructure (DoPI) dated August

2011 and Circulars PS 08-003 & PS 18-003) and has incorporated relevant principles

identified in recent Land and Environment Court decisions, some of which are noted

in this report.

1.2 Clause 4.6 Operation

The Objectives of Clause 4.6 are:

(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.

Clause 4.6(3)(a) and 4.6(3)(b) require that 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.

Clause 4.6(4) requires that 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.

Clause 4.6(5) requires that 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.

As set out in Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 (at [27-

29]) clause 4.6 operates as follows:

27. Clause 4.6 of the CLEP 2012 [a standard instrument LEP] allows development

standards to be applied flexibly in certain circumstances. In Randwick City

Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ found that in

applying the provisions of cl 4.6, the power to allow an exception to a

development standard can be exercised where the Commissioner is satisfied

that:

1. the proposed development will be consistent with the objectives of the

zone (cl 4.6(4)(a)(ii)) (at [7]),

2. the proposed development will be consistent with the objectives of the

standard in question (cl 4.6(4)(a)(ii)) (at [7]),

3. the written request adequately demonstrates that compliance with the

development standard is unreasonable or unnecessary in the

circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and

4. the written request adequately demonstrates that there are sufficient

environmental planning grounds to justify contravening the development

standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]).

28. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent

with the objectives of the zone and of the standard (i.e. meets (1) and (2)

above), then it is in the public interest. I also note that nothing in cl 4.6 requires

the consistency with the objectives to be established in or by the written

request.

29. Further, in outlining (3) and (4) above, regarding the requirements for the

written request, Preston CJ stated that the Court need not be directly satisfied

that compliance is unreasonable or unnecessary and sufficient environmental


planning grounds exist, but rather “only indirectly by being satisfied that the

applicant’s written request has adequately addressed” those matters.

The consent authority retains a broad discretion under clause 4.6 and there are no

numerical limits placed upon the dispensing power, either by clause 4.6 or by the

interpretation of clause 4.6 by the Courts.

In summary, clause 4.6 must demonstrate in writing (clause 4.6(3)):

1. that compliance with the development standard is unreasonable or

unnecessary in the circumstances of the case (clause 4.6(3)(a))

2. sufficient environmental planning grounds to justify contravening the

development standard (clause 4.6(3)(b))

3. that the exception is in the public interest because it is consistent (note

Moskovich v Waverley Council [2016] below) with the objectives of the

development standard and the objectives of the zone (clause 4.6(4)(a)(ii)),

and

4. that the concurrence of the Director-General has been obtained (clause

4.6(4)(b).

Specifically, Moskovich v Waverley Council [2016] NSWLEC 1015 found:

53. The threshold of “consistency” is different to that of “achievement”. The term

“consistent” has been considered in a judgements of the Court in relation to

zone objectives and has been interpreted to mean “compatible” or

“capable of existing together in harmony” (Dem Gillespies v Warringah

Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal

Council [2008] NSWLEC 190) or “not being antipathetic” (Schaffer

Corporation v Hawkesbury City Council (1992) 77 LGRA 21). Whichever

interpretation is adopted the test of “consistency” is less onerous than that of

“achievement”.

The report adopts the methodology set out by the courts. While it is not essential to do

so, comments will be made in relation to consistency with the objectives of the zone

and the standard. This request is made on the basis that:

compliance with the development standard is unreasonable and unnecessary

in the circumstances of the case,

that there are sufficient environmental planning grounds to justify contravening

the development standard,

it is consistent with the objectives of the particular standard and the zone in

which the development is proposed to be carried out, and

it is in the public interest to allow a departure from the numerical standard in

this case.


2 General Assessment of the Variation

2.1 Is compliance with the development standard unreasonable or

unnecessary in the circumstances of the case?

The planning principle set out in Wehbe v Pittwater Council (2007) provides an

accepted method for justifying that compliance with the development standard is

unreasonable or unnecessary. This method is to demonstrate that the objectives of the

development standard are achieved notwithstanding non-compliance with the

numerical standard. It essentially notes that “…development standards are not ends in

themselves but means of achieving ends”. Chief Justice Preston expressed the view

that there are five different ways in which an objection may be well founded and that

approval of the objection may be consistent with the aims of the policy. These five

ways are examined below.

2.1.1 The objectives of the standard are achieved notwithstanding non‐compliance with the standard.

The objectives are addressed in Section 3.1.

2.1.2 The underlying objective or purpose of the standard is not relevant

to the development and therefore compliance is unnecessary.

The standard’s purpose and objectives remain relevant. The proposal does not

compromise consistency with these objectives.

2.1.3 The underlying objective or purpose would be defeated or

thwarted if compliance was required and therefore compliance is

unreasonable.

The underlying intent of the Height of Building objectives relates to site capability,

appropriate scale for the setting and minimizing impacts on neighbouring sites.

Objective (d) relates to creating appropriate spaces for retail uses. In this case the

ground floor level has to be significantly higher to accommodate an appropriate sized

loading dock for the commercial uses. This pushes the main building structure over the

allowable height. The roof terrace requires a higher lift core and shade structures which

also exceed the height.

This exceedance speaks of amenity and capacity rather than an ambit claim for

additional floor area. This submission suggests that the breaches in height are relatively

minor and compliance would not reduce impacts or improve the building. The impacts

are modest within an emerging higher density context which serves to demonstrate

that the site is not constrained to an extent where it cannot reasonably and equitably

accommodate the proposed building height.

The purposes of the objectives are not compromised by this non-compliance.


2.1.4 The development standard has been virtually abandoned or

destroyed by the Council's own actions in granting consents

departing from the standard and hence compliance with the

standard is unnecessary and unreasonable.

The standard has not been abandoned, however minor variations to height are being

approved. Relevantly, four storey buildings are located near to this site.

2.1.5 Compliance with development standard is unreasonable or

inappropriate due to existing use of land and current

environmental character of the particular parcel of land. That is,

the particular parcel of land should not have been included in the

zone.

The zoning is appropriate.

2.2 Are there sufficient environmental grounds to justify

contravening the development standard?

Yes. Sufficient environmental planning grounds exist to justify contravening the

development standard. The following points support this:

1. Four storey buildings are consistent with the desired character and scale of

the area.

2. The site requires a significant ground level height to accommodate the

loading dock and rubbish room. This is an advantage to site amenity and

truck movements.

3. The roof structures accommodate the roof terrace and are set back from

the edge of the building minimizing impacts.

A development proposal that was forced to be compliant with the HOB standard

would:

represent an underutilization of a key development site, without any change in

the building floorplate;

require a shorter building with less amenity and reduced elegance;

fail to reflect the greater ceiling heights required by commercial uses; and

reduce housing on a site near to rail transport which contravenes the objectives

of state planning initiatives. Furthermore, the underutilisation of this nature does

not support housing affordability.

In terms of character and impact, there are no significant environmental benefits that

would result from strict compliance. For this reason, the minor variation is justifiable.


3 Assessment of Planning Grounds for Variation

3.1 The proposed development 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.

3.1.1 Objectives of the standard

The LEP Clause 4.3 Height of Buildings objectives are:

(a) to minimise the visual impact, loss of privacy and loss of solar access to

surrounding development and the adjoining public domain from buildings,

(b) to ensure that buildings are compatible with the height, bulk and scale of

the surrounding residential localities and commercial centres within the

City of Blacktown,

(c) to define focal points for denser development in locations that are well

serviced by public transport, retail and commercial activities,

(d) to ensure that sufficient space is available for development for retail,

commercial and residential uses,

(e) to establish an appropriate interface between centres, adjoining lower

density residential zones and public spaces.

Comment:

The objectives were also discussed in Section 2. The roof top structures are setback from

the edges of the building and are light-weight structures, with the exception of the fire

stair. These structures do not cause any additional overshadowing or loss of privacy.

The additional height created by the main building form is relatively minor. Winter

shadows towards the western neighbour and their balcony would exist even if an entire

level was removed. The height encroachment of the proposed building is not a key

determining factor in the impact of overshadowing in this case. Strict compliance in

this sense would serve no greater attainment of any of the objectives of the standard.

The context of an emerging town centre is supported by extra building height. The four

storey height and setbacks to the residential zone is appropriate.

Rear setbacks are compliant with the ADG and the height is not excessive in terms of

a town centre.

It is appropriate to revisit the legal framework for satisfying consistency with the

objectives of the standard. Consistency has been interpreted to mean “compatible”


or “capable of existing together in harmony” (Dem Gillespies v Warringah Council

(2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008]

NSWLEC 190) or “not being antipathetic” (Schaffer Corporation v Hawkesbury City

Council (1992) 77 LGRA 21). Consistency is less onerous than that of achievement.

This section has demonstrated that the creation of a new town centre has not worked

to such an extent, where the impact is obviously fatal. Four storey buildings adjoin two

storey buildings. On this basis, the development “exists in harmony” with the objective

and is “compatible’. It is therefore consistent.

3.1.2 Meeting the Objectives of the Zone

The objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses

that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and

cycling.

• To encourage the development of an active local centre that is

commensurate with the nature of the surrounding area.

The proposal supports the objectives for the zone as explained below.

• To provide a range of retail, business, entertainment and community uses

that serve the needs of people who live in, work in and visit the local area.

Retail ground level uses are proposed and a larger ceiling height is required at the

ground floor to accommodate a quality loading dock and waste room at the height

council desires. This supports the emerging town centre and the needs of businesses.

Businesses also support the residents in the area.

• To encourage employment opportunities in accessible locations.

Achieved.

• To maximise public transport patronage and encourage walking and

cycling.

Density near public transport supports all the initiatives of the state government.

Penalising density on this site does not achieve this objective.

• To encourage the development of an active local centre that is

commensurate with the nature of the surrounding area

The proposed uses are suitable for a town centre. The four storey building is a

transitional area between the adjoining lower height areas. Ultimately much greater

heights will be allowed in the B2 zone nearer to the railway station. There are impacts


in any town centre context but they are manageable given the need for much larger

buildings.

3.1.3 Meeting the Objectives of the LEP

The objectives of the LEP are:

(a) to recognise the role of the urban renewal precincts as the major

locations for higher density residential and employment development

for the city,

(b) to ensure that appropriate housing opportunities are provided for all

current and future residents through diversity of housing choice,

(c) to provide land for community facilities, public purposes and

recreational pursuits,

(d) to encourage development opportunities for business and industry so

as to deliver local and regional employment growth,

(e) to minimise risk to the community by restricting development in sensitive

areas that are subject to flooding and other hazards,

(f) to provide for infrastructure to maintain and meet demands arising from

housing and employment growth,

(g) to conserve and enhance Blacktown’s built, natural and cultural

heritage,

(h) to conserve, restore and enhance biological diversity and ecosystem

health, particularly threatened species, populations and communities.

The proposal supports the relevant LEP objectives and does not undermine those that

relate to the natural environment, sensitive lands or scenic areas. Viable and attractive

buildings are critical to orderly economic development and vital town centres. It

provides for a mix of housing near to transport nodes.

It supports local housing needs and the orderly development of the town centre on a

site that is an easy walk to the railway station.

This proposal supports the objectives of the LEP.

3.2 Whether contravention of the development standard raises any

matter of significance for State or regional environmental

planning?

The contravention of the development standard in this case does not raise an issue of

State or regional planning significance as it relates to local and contextual conditions.

The flexibility with Clause 4.6 allows for Council to make decisions without the need to

use the Planning Proposal processes under the Act.


3.3 Would the contravention raise any significant matter or hinder

the attainment of the objects of the Act?

The objects specified in Section 1.3(a)(i) and (ii) of the Act are as follows:

(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) to protect the environment, including the conservation of threatened

and other species of native animals and plants, ecological communities

and their habitats,

(f) to promote the sustainable management of built and cultural heritage

(including Aboriginal cultural heritage),

(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) to promote the sharing of the responsibility for environmental planning

and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in

environmental planning and assessment.

The proposed development is consistent with the provisions of orderly and economic

development and would not hinder the objects of the Act.

3.4 Is there public benefit in maintaining the development

standard?

Maintaining the standard would simply result in the removal of units without a

significant reduction in impact. It may even require the removal of one or two levels of

housing on a key amalgamated site near railway transport.

Given the absence of significant impact, no public benefit would result from strict

compliance with the standard in this instance.

3.5 Matters relating to concurrence?

Clause 4.6(4)(b) requires that the concurrence of the Secretary be obtained.


4 Conclusion

4.1 Is the objection well founded?

The proposed variation from the LEP height is justified as the proposed development is

consistent with the objectives of the development standard, the zone and the LEP. The

additional height is directly related to a requirement by Council for a 4.5m ground level

ceiling height and the activation of a roof terrace.

Ac strictly compliant building achieves no greater outcome in terms of amenity or

reduced impact. This is a better planning outcome and supports objectives of Clause

4.6.

The objective of the height control creates a deliberate tension between site

constraints and building appropriate capacity into our town centres. Without clear

impacts bringing limitation, the objectives facilitate site yield. This submission

demonstrates that site constraints are not such that the variation should be refused on

the basis of adverse impact. This submission has examined compliance with all relevant

objectives and has examined all impacts. The granting of an exception to the

development standard can be supported in this case, as there are no obvious reasons

to refuse it. This application suggests that some flexibility is required to build good

centres and support growing communities.

This application is well founded.

4.2 Final remarks

Recent case law (Moskovich and Micaul) established that the consent authority has a

broad discretion under clause 4.6(4) as to the degree of satisfaction required by that

clause. It is unnecessary in this case to amend the LEP or enforce strict compliance just

to get this building approved. Clause 4.6 is the appropriate tool to approve this

variation.

Strict compliance would serve no environmental outcome and make no meaningful

improvement to any outcome or improve the character of the area. Indeed, the only

reason that could be given for refusal is that numeric compliance simply must be

adhered to. This would contravene the very intent of flexible planning provisions and

fail to acknowledge the merits of the variation. It also contravenes the findings in

Wehbe v Pittwater Council (2007) where it notes that compliance must not be

considered an end in its own right but a means to an end.

For this reason, strict compliance with the development standard is unreasonable and

unnecessary and the use of Clause 4.6 is available to Council in this instance.


APPENDIX 1 – HEIGHT PLANE DIAGRAMS

clause 4.6 exception to development standard height of

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