CLAUSE 4.6 VARIATION TO HEIGHT OF BUILDING …

CLAUSE 4.6 VARIATION TO HEIGHT OF BUILDING DEVELOPMENT STANDARD No. 150 Guntawong Road Riverstone

GLN 11373

20 October 2020

11373 Guntawong HOB Cl 4.6 2

Property: Proposed Lot 2 in the re-subdivision of Lot 93 DP 208203 (No. 150 Guntawong Road

Riverstone) approved by Court Order made on 20 December 2019 (LEC Case No.

2018/003613 and Council DA No. DA 18-02016).

Development:

The Development Application seeks approval for the construction of a residential flat

building comprising of 100 residential units within 3 separate blocks over a common

basement car park with 144 spaces, and associated civil and landscaping works..

Subject Plans: Architectural Plans prepared by The Bathla Group, for “Proposed Lot 93, 150

Guntawong, Rouse Hill DP 208203”, Revisions 1, 4 and 5, as listed below:

Council Reference:

DA-19-01136

Development Standard:

Clause 4.3 (Height of buildings) of Appendix 12 of State Environmental Planning Policy

(Sydney Region Growth Centres) 2006 (the GC SEPP)


1. Summary

The proposed development involves the construction of a 4 storey residential flat building (RFB) in 3 blocks

over a common basement car park, on proposed Lot 2 to be created by an approved subdivision of a large

parcel of land within Marsden Park.

The RFB is designed to present as 3 buildings above shared basement car parking. Proposed Lot 2 is a

large site with an area of 8,428.65m2, with each boundary having road frontage. The eastern tip of the Lot

is subject to a power line easement, and while devoted to open spaces uses is not relied upon to provide

the required area of common open space (COS) and will be landscaped to encourage low intensity uses.

The site is located in an area of planned higher density residential, within a Growth Centre precinct currently

being developed, known as Riverstone East. The site is located adjacent to a planned local centre and park

and less than 2 kilometres from the Tallawong Metro Train Station, and 3.7km from the Rouse Hill Regional

town centre. The location of the site as shown on the Indicative Layout Plan for Marsden Park is depicted

on Figure 1.

Source: Extract for Riverstone East Precinct ILP (NSW Department of Planning & Infrastructure- now DPIE)

Figure 1: Location of Site on ILP

Approximate

Location of

Lot 9


The development substantially complies with the building height standard of 12m. The RFB is 4 storeys,

which is what could be anticipated by a 12m height standard. The clause 4.6 submission relates to only

minor exceedances associated with the top of lift overruns and some relatively small architectural features

incorporated into the roof edge. All other parts of the proposed building would comply with the height

standard.

The variations to the height standard are numerically minor, particularly when considered as a percentage

of the overall roof area, are unlikely to be perceptible where occurring on the architectural roof features

and not visible where occurring on lift overruns other than possibly from long distances. The lift overrun

exceedances are in part required to provide equitable access to roof top communal open spaces. The

variations do not relate to habitable floorspace and will have no impact on the streetscape or character of

the area given the specific nature of proposed Lot 2.

This request for a variation to the minimum lot size standard outlines the justification for the contravention

having regard to the circumstances of the case and demonstrates that it is in the public interest.

2. Authority to vary a development standard

The objectives of clause 4.6 seek to recognise that in particular circumstances, strict application of

development standards may be unreasonable or unnecessary. The clause provides objectives and a means

by which a variation to the standard can be achieved as outlined below.

4.6 Exceptions to development standards

(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 Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General 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 Director-General before

granting concurrence.

(6) Development consent must not be granted under this clause for a subdivision of land in Zone

E2 Environmental Conservation, Zone RU6 Transition or Zone E3 Environmental Management if—

(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such

lots by a development standard, or

(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified

for such a lot by a development standard.

(7) After determining a development application made pursuant to this clause, the consent

authority must keep a record of its assessment of the factors required to be addressed in the

applicant’s written request referred to in subclause (3).

(8) This clause does not allow development consent to be granted for development that would

contravene any of the following—

(a) a development standard for complying development,

(b) a development standard that arises, under the regulations under the Act, in connection with

a commitment set out in a BASIX certificate for a building to which State Environmental Planning

Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building

is situated,

(c) clause 5.4.

3. Development Standard to be Varied

A variation is requested to clause 4.3 which specifies the maximum height of buildings. This is a

development standard as defined by S1.4 of the Environmental Planning and Assessment Act 1979 (EPA

Act)

Clause 4.3 (2) requires:

(2) The height of a building on any land is not to exceed the maximum height shown for the

land on the Height of Buildings Map.

An extract of the Height of Buildings Map contained within the LEP is provided as Figure 2.


Source: Legislation NSW (Adapted extract from GC SEPP – Height of Buildings Map Sheets 008 & 009)

Figure 2: Height of Buildings Map

The GC SEPP Dictionary provides the following relevant definitions:

ground level (existing) means the existing level of a site at any point

building height (or height of building) means the vertical distance between ground level

(existing) at any point to the highest point of the building, including plant and lift overruns, but

excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and

the like.

That land upon which the RFB is to be constructed (proposed Lot 2) is subject to a 12m maximum height

of building standard. We are advised that for the purposes of calculating height, the ground levels of the

site have been based on those levels existing prior to any urban development (see Architectural Dwg A-

003-2) and not the future approved ground levels shown on the approved ground levels as shown on

plans issued by Land and Environment Court determination for the subdivision. Despite this, the changes

in ground levels approved as part of the subdivision are minimal and uniform across the site.

Location of

RFB on

proposed Lot

2


4. Extent of variation

The extent of the variations proposed have been calculated by the architect and are depicted on a 3D

image included with the architectural plans (see Figure 3).

Source: Extract from Architectural Plans (Dwg A-107)

Figure 3: Height Compliance Diagram

The variations are associated with small parts of the overall building that relate the top of lift overruns and

some relatively small architectural features incorporated into roof edge/parapet. All other parts of the

proposed RFB would comply with the height standard. The roof edge/parapet variations relate to what can

be considered to be architectural roof features and therefore exempt from the height standard pursuant

to clause 5.6 of Appendix 12 of the GC SEPP. However, for abundant caution this clause 4.6 submission

assumes that the benefit of clause 5.6 does not apply and that a variation is sought for all exceedances.

The variations to the height standard are numerically minor, particularly when considered as a percentage

of the overall roof area. The exceedances range from 0.18m in regard to a parapet and 2.10m in regard to

a lift overrun, from the 12m height standard. This represents variations ranging from 1.5 % to 17.5% but are

isolated exceedances that cumulatively occur on less than 1.5% of the total roof area of the proposed

development.

The higher exceedances of 1.50m to 2.10m relate to 3 lift overruns which are set in from the building edge

and have arisen due to the provision of roof top common open space (COS) in response to issues raised

by Council about reliance on open space areas affected by a power line easement. The exceedances relate

to the desire to provide equitable access to roof top COS.


None of the variations relate to habitable floorspace.

5. Zoning

The zoning of the site and surrounding area is illustrated on Figure 4.

Source: GC SEPP - Land Use Zone Map Sheets 008 & 009)

Figure 4: Zoning Map

6. Objectives of Clause 4.3

The objectives of the Height of buildings clause are:

(a) to establish the maximum height of buildings,

(b) to minimise visual impact and protect the amenity of adjoining development and land in terms of

solar access to buildings and open space,

(c) to facilitate higher density development in and around commercial centres and major transport

routes.

Location of RFB on

proposed Lot 2


7. Assessment

The following sections discuss the grounds for the variation to clause 4.3 against the relevant provisions of

clause 4.6.

Is compliance with the development standard unreasonable or unnecessary in the circumstances of the

case? (Clause 4.6(3)(a))

Clause 4.6(3)(a) requires the applicant to provide justification that strict compliance with the maximum

building height development standard is unreasonable or unnecessary in the circumstances of the case.

In Wehbe v Pittwater Council (2007) NSWLEC 827, Preston CJ established five potential ways for

determining whether a development standard could be considered to be unreasonable or unnecessary.

These include:

1. The objectives of the standard are achieved notwithstanding non-compliance with the standard;

2. The underlying objective or purpose of the standard is not relevant to the development and

therefore compliance is unnecessary;

3. The underlying object or purpose would be defeated or thwarted if compliance was required and

therefore compliance is unreasonable;

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.

5. The zoning of the particular land is unreasonable or inappropriate so that a development standard

appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and

compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel

of land should not have been included in the particular zone.

We note that whilst Wehbe was a decision of the Court dealing with SEPP 1, it has been also found to be

applicable in the consideration and assessment of Clause 4.6. Regard is also had to the Court’s decision in

Four2Five Pty Limited v Ashfield Council [2015] NSWLEC 90 and Randwick City Council v Micaul Holdings

Pty Ltd [2016] NSWLEC 7, which elaborated on how these five ways ought to be applied, requiring

justification beyond compliance with the objectives of the development standard and the zone.

In addition to the above, Preston CJ further clarified the appropriate tests for a consideration of a request

to vary a development standard in accordance with clause 4.6 in Initial Action Pty Ltd v Woollahra Municipal

Council [2018] NSWLEC 118. This decision clarifies a number of matters including that:

• the five ways to be satisfied about whether to invoke clause 4.6 as outlined in Wehbe are not

exhaustive (merely the most commonly invoked ways);

• it may be sufficient to establish only one way;

• the written request must be “sufficient” to justify contravening the development standard; and

• it is not necessary for a non-compliant development to have a neutral of beneficial effect relative

to a compliant development.

It is our opinion that the proposal satisfies the first of the five ways established in Wehbe that demonstrate

that the development standard is unreasonable and unnecessary in this instance, for the reasons set out

below.


1st Way – The objectives of the standard are achieved notwithstanding non-compliance with the standard

The proposal would satisfy the objectives of the standard to the extent relevant to the current proposal,

and compliance with the height standard in this circumstance is considered both unreasonable and

unnecessary for the reasons outlined below.

Objective (a) - to establish the maximum height of buildings,

The proposal achieves this objective. This objective primarily has a descriptive administrative purpose as

opposed to a required environmental outcome. Despite this, the proposed variation does not compromise

the environmental outcome intended to be achieved for the standard as discussed below.

Objective (b)- to minimise visual impact and protect the amenity of adjoining development and land in

terms of solar access to buildings and open space,

The approved subdivision works which will deliver public roads and superlots intended by the GC SEPP.

The configuration of the lot, and the occurrence of roads along all boundaries, is a consequence of the

road pattern required by the Indicative Layout Plan for the precinct.

The land to the north and east is identified for low density residential, noting that the land to the east is

also subject to development by UPG, who have comprehensively considered the development of the

adjoining properties.

The land to the south of the site (proposed Lot 1), is also zoned for higher density residential development

and forms part of the original land parcel. Lot 1 is will be separated from the proposed built form on the

subject site (Lot 2) by a 60.96m transmission easement and proposed public road.

The site in its entirety is surrounding by existing and planned public roads and consequently the proposed

development will not have a neighbour on a contiguous property.

The lift overruns the subject of the variation are set in from the building edges by between approximately

5.5m and 12.9m from façades that face towards public roads. This results in these elements not being

visible from nearby or adjoining properties and public areas, or visible at such distances that they would

not be conspicuous.

The variations that relate to parapets and roof edges are integrated into the architecture of the building.

These small and scattered variations arise as a consequence of minor variations in existing ground levels.

Consequently these variations will not be perceptible.

The nature of the proposed variation is such that there would be no consequential effect on the shadows

cast onto adjoining properties (see Architectural Plan A-402). The shadows cast by the development at

mid-winter will not extend onto any adjoining property and will not affect any land zoned for public open

space purposes.

Accordingly, the proposal minimises any visual impact and protects the amenity of adjoining development

and land in terms of solar access to buildings and open space., in satisfaction of Objective (b).


Objective (c) - to facilitate higher density development in and around commercial centres and major

transport routes,

The proposal provides for an RFB on a site that adjoins a planned commercial centre and mixed

use/community facility, and is located opposite land zoned Public Recreation that will become a local park

that contributes to the vitality of the centre. Guntawong Road and the northerly extension of Tallawong

Road to the east of the site are proposed collector roads (refer to Figure 4-2 of Schedule 8 of Blacktown

City Council Growth Centres Precinct DCP) which are designed to accommodate bus services.

The proposed RFB will be in convenient walking distance of the commercial centre and future bus routes.

The proposal therefore achieves this objective.

Summary of Satisfaction of Objectives of the Standard

Preston CJ at paragraph 43 in Wehbe v Pittwater Council stated:

The rationale is that development standards are not ends in themselves but means of achieving

ends. The ends are environmental or planning objectives. Compliance with a development

standard is fixed as the usual means by which the relevant environmental or planning objective is

able to be achieved. However, if the proposed development proffers an alternative means of

achieving the objective, strict compliance with the standard would be unnecessary (it is achieved

anyway) and unreasonable (no purpose would be served)." (paragraph 43 of Wehbe v Pittwater

Council).

There is an expectation that a 12m height standard will provide for 4 storey residential development to

provide for an appropriate density of development to support the planned local centre and associated

public facilities and services such as open space and public transport . This will be achieved by the proposed

development. A proposal that sought to achieve exact compliance would result in irregular building forms

and/or isolated pockets of the buildings with 3 storey components that would not be conducive to a logical

architectural outcome, and would result in an overall reduction in housing.

Accordingly, the variation to the minimum residential standard will not compromise achievement of the

objectives of the standard. Rather, this proposal offers an alternative means of achieving the objective.

2nd Way - The underlying objective or purpose of the standard is not relevant to the development and

therefore compliance is unnecessary.

Other than objective (a) to the extent discussed above, this consideration is not relevant in this case.

3rd Way - The underlying objective or purpose of the standard would be defeated or thwarted if

compliance was required.

This consideration is not relevant in this case, other than as commented on with regard to the “1st way.”

4th Way - The development standard has been virtually abandoned or destroyed by the Council’s own

decisions

This consideration is not relevant in this case.

5th Way – The zoning of the site is unreasonable or inappropriate and consequently so is the development

standard.

This consideration is not relevant in this case.


Are there sufficient environmental planning grounds to justify contravening the development standard?

(Clause 4.6(3)(b))

The environmental planning grounds which support the contravention of the height of building standard

relate to:

• The site is totally surrounding by public roads, which in this case provides added separation to all

future adjoining development, which is implicitly not accounted for by the generic application of

development standards such as height.

• Due to the setback of the lift overruns from the edges of the proposed building, they would not

be visible when standing in the adjacent public roads adjacent the site. Glimpses of the lift overruns

might be obtainable from public locations but over such long distances that the height variation

would be immaterial.

• The roof top COS areas will provide desirable facilities for future residents of the development in

conjunction with ground level communal open space. Access to the roof top COS facilities could

be provided by way of only stairs, potentially with stairlifts or platform lifts, to avoid non-

compliances with the height standard. This would provide an inferior and undesirable level of

access. The design of the roof top communal open space, and associated lift access, provides a

common area with enhanced amenity and equitable access, that would not be achievable with full

compliance with the height standard.

• The minor variations associated the roof edge and parapets are effectively disparate components

of architectural roof features which have been designed to enhance the aesthetic quality of the

building and will not be perceptible.

The proposed development provides for an anticipated 4 storey RFB near a planned centre, parkland and

public transport. The proposed variations relates to a relatively minor infringements and do not relate to

an attempt to achieve greater occupiable floor space.

Consequently, the proposal would be consistent with the following objects of the EP&A Act at s.1.3:

(c) to promote the orderly and economic use and development of land, and

(g) to promote good design and amenity of the built environment.

In addition to the above, there is an absence of material negative impacts resulting from the proposed

variation from the height of building standard.

Is the proposed development in the public interest? (Clause 4.6(4)(a)(ii))

The proposed development is in the public interest because it:

• Facilitates a development that is consistent with the objectives of the standard and the intent of

the R3 zone under the GC SEPP. Consistency, with the objectives of the standard has been

addressed previously under Wehbe method one (“1st way”).

• Provides additional housing within the Sydney metropolitan region.

• The occupants of the housing will support the planned local commercial centre and community

facility for the precinct, located to the southwest of the site.

• The occupants of the housing will utilise the future public transport, in association with expected


public bus services along collector roads within walking distance .

In regard to the first point, the objectives of the R3 Medium Density Residential zoning of the site are:

• To provide for the housing needs of the community within a medium density residential

environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of

residents.

• To support the well-being of the community by enabling educational, recreational, community,

religious and other activities where compatible with the amenity of a medium density residential

environment.

The development is consistent with, or is not antipathetic to, the objectives of the zone for the reasons

discussed above and below.

The proposed housing will contribute to the delivery of about 3,000 new dwellings planned for Stages 1

and 2 of the Riverstone East precinct to meet the needs of the growing population of Sydney. The proposal

provides a mix of residential apartment sizes and will form part of a housing mix to be achieved across the

precinct within each of the R2 and R3 residential zones and as mixed use developments in business zones.

Each of these zones have been located to take advantage of existing and planned infrastructure and natural

features as an outcome of the precinct planning process. Consequently, the proposal will satisfy the first 2

objectives if the zone.

The third and fourth objectives are irrelevant, and the proposal is not antipathetic to these objectives. The

proposal involves private housing and does not involve residential support land uses or an educational

establishment, a place of public worship, or public open space.

Consideration of concurrence by Director-General (Clause 4.6(4)(b) & (5))

Concurrence to the proposed variation is not required by the Secretary pursuant to clause 4.6(4)(b), as we

understand that the relevant consent authority has the necessary delegation as set out in the Assumed

Concurrence Notice issued by the Secretary of the Department of Planning and Environment dated 21

February 2018 (attached to DPE Planning Circular PS 20-002 dated 5 May 2020).

Despite this, the proposed variation to the maximum height of building standard is not considered to be

detrimental to any matters of significance for state or regional environmental planning.

In the circumstances of the application, there is no public benefit in maintaining the development standard.

To the contrary and consistent with the objectives of clause 4.6, allowing the variation will facilitate a

development that achieves better and appropriate outcomes and represents an appropriate degree of

flexibility in applying a development standard.

In relation to clause 4.6(5)(c), we note that no other matters have been nominated by the Secretary for

consideration.


Conclusion

A variation to the strict application of the maximum building height standard is considered appropriate for

development on proposed Lot 2 at No. 150 Guntawong Road Riverstone.

The proposed height results in an optimum outcome for the site that provides roof top communal open

space with equitable access, with negligible impacts compared to those caused by a compliant height.

The proposal meets the intent of the height of building standard and in accordance with clause 4.6 of the

GC SEPP, demonstrates that the development standard is unreasonable and unnecessary in this case and

that the variation is justified.

CLAUSE 4.6 VARIATION TO HEIGHT OF BUILDING …

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