Posted on June 26, 2018 by Sue Puckeridge and
Abandonment of development standards – Relevance of previous consents
The Land and Environment Court recently considered the relevance of previous development consents on a site to the question of whether the floor space ratio (‘FSR’) standard was unreasonable or unnecessary in the circumstances of a fresh application for development consent on that site.
In Abrams v The Council of the City of Sydney (No 2)  NSWLEC 85, Robson J, on appeal, concluded that the previous development consents were relevant instruments to be considered for the purpose of s 39(4) of the Land and Environment Court Act 1979 (NSW) because they were relevant to whether the FSR development standard had been abandoned.
Abrams lodged a development application for the demolition of an existing commercial building and the construction of a new four storey residential flat building in Alexandria. The proposed development breached the FSR development standard in the Sydney Local Environmental Plan 2012 (‘SLEP‘).
Abrams requested a variation of the FSR development standard pursuant to Cl 4.6 of the SLEP, relying on two prior consents given by Council on the site.
The Council refused the development application and Abrams appealed the refusal to the LEC. Commissioner Brown heard and dismissed the appeal. Abrams appealed against this decision.
Abrams relied upon Wehbe v Pittwater Council  NSWLEC 827; (2007) 156 LGERA 44, as the basis for arguing that compliance with the development standard was unnecessary or unreasonable in the circumstances. In particular, it was argued that the fourth test as set out in that case applied. Namely, the development standard had been abandoned or destroyed by the Council’s own actions of granting development consents departing from the standard.
The Court held that prior consents on the same site or in the locality ‘may be instructive for the purpose of an ‘abandonment’ argument or in informing the desired character or future streetscape of a locality’.
This, however, was not sufficient to demonstrate abandonment of the development standard.
A finding that a development standard has been abandoned requires evidence of a ‘pattern of abandonment such that the development standard can no longer be said to represent the existing and/or desired character of the locality would mean that the development standard had been “virtually abandoned or destroyed….It will be a matter of fact and degree in the circumstances of each case.’
The case reinforces the fact that each application seeking to vary a development standard must meet the requirements for the variation on the merits. In Abrams the Commissioner was not satisfied that this requirement had been made out. No error of law had been made in reaching that decision.
The Abrams case can be found here: https://www.caselaw.nsw.gov.au/decision/5b10c9d3e4b074a7c6e1fcbd