11 Church Street Pty Ltd ATF The Trustee for 11 Church Street Discretionary Trust v Newcastle City Council

The site and its context

1. The site is currently occupied by a largely derelict three-storey building with a 10.3m frontage to Hunter Street, a depth of 51m and total area of 523m2.
2. The site is legally described as Lot 1 in DP998023.
3. To the east of the site is a commercial premises occupied by NSW Health, known as No 621 Hunter Street.
4. To the west of the site is a commercial premises used for community mental health at No 627 Hunter Street.
5. Relevantly, the site has no current vehicular access to the Hunter Street frontage and, to the south, the site abuts the rear of No 7 Steel Street.
6. Also relevantly, a laneway connects the south of No 7 Steel Street to King Street.
7. The arrangement of the subject site, No 7 Steel Street and the laneway is depicted in an aerial photo map (Exhibit B, Tab 2), re-produced below, with annotations applied by the court.
8. In September 2021, a cycleway was installed on Hunter Street along the frontage of the site. The timing of the cycleway is relevant as some of the plans and documents prepared in support of the development application anticipate the potential for a cycleway, and others refer to the cycleway in situ.
9. The site is located within the B4 Mixed Use zone, according to the Newcastle Local Environmental Plan 2013 (NLEP), in which commercial premises and shop top housing is permitted with consent, and where consistent with the following objectives of the B4 zone: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To support nearby or adjacent commercial centres without adversely impacting on the viability of those centres.
10. While the site itself is not identified as an item of heritage significance, or an Aboriginal place of heritage significance, the site is located with the Newcastle City Centre Heritage Conservation Area (Newcastle HCA), and is identified as a contributory building, classified 'Contributory 1'.

The issues

1. The parties agree that the proposal, as amended, meets the 'must not refuse' standards at cl 14 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) in respect of the building height of 45m, landscaped area, solar access, private open space, accommodation size and the applicable floor space ratio (FSR) for the site.
2. For completeness, the FSR is ultimately determined by reference to cl 4.4 of the NLEP, and to cl 7.10A which provides that the maximum FSR for a building located on land with a site area of less than 1,500m2 is the lesser of the FSR identified on the Floor Space Ratio Map, or 3:1. The bonus available under cl 13 of the Affordable Housing SEPP provides for a final FSR standard of 3.6:1, with which the proposal complies.
3. I note here that the Affordable Housing SEPP was repealed on 26 November 2021, replaced by State Environmental Planning Policy (Housing) 2021 (Housing SEPP). However, the Housing SEPP includes a savings provision, effective 14 April 2022, at Schedule 7 that precludes the operation of the Housing SEPP to a development application made, but not yet determined, on or before the commencement date.
4. The parties are agreed that the primary question to be determined by the Court in this matter is whether the absence of provision for car parking is an acceptable outcome.
5. In summary, the Respondent identifies the nature of the impact as twofold: firstly, it would be an unreasonable impost on the future occupants of the site, and secondly, the externalising of waste collection, deliveries and the like to off-site imposes an unacceptable impact on traffic flow to Hunter Street.
6. The Respondent submits that the constraints of the site that preclude onsite car parking, servicing, deliveries and waste collection are of the Applicant's design, imposed upon the Applicant by its own decision to purchase the subject site and not the adjoining site at No 7 Steel Street when both properties were offered for sale by expression of interest in 2019.(Exhibit 8, folios 28-32)
7. Given the arrangement of lots depicted at [25], purchase of both properties would assure rear lane access.
8. As the development the subject of the development application, is for infill affordable housing, the provisions contained in the Affordable Housing SEPP apply to the site.
9. Of particular relevance in the circumstances of this case, cl 14 of the Affordable Housing SEPP sets out standards that cannot be used to refuse consent, including at subcl 14(2), in respect of car parking and dwelling size in the following terms: (2) General A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) parking if - (i) in the case of a development application made by a social housing provider for development on land in an accessible area - at least 0.4 parking spaces are provided for each dwelling containing 1 bedroom, at least 0.5 parking spaces are provided for each dwelling containing 2 bedrooms and at least 1 parking space is provided for each dwelling containing 3 or more bedrooms, or (ii) in any other case - at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms, (b) dwelling size if each dwelling has a gross floor area of at least - (i) 35 square metres in the case of a bedsitter or studio, or (ii) 50 square metres in the case of a dwelling having 1 bedroom, or (iii) 70 square metres in the case of a dwelling having 2 bedrooms, or (iv) 95 square metres in the case of a dwelling having 3 or more bedrooms. (3) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

The Applicant's submission

1. The Applicant invites the Court to consider any one of four pathways to determine that the proposal is deserving of the grant of consent. These pathways may be summarised as follows: 1. Firstly, while cl 14 of the Affordable Housing SEPP expressly stipulates the size of a bedsit or studio apartment, it does not identify a studio apartment within the car parking requirements and so it must be expected that no parking is required for studio apartments. That being the case in the proposal, the requirement is met and so the 'must not refuse' provision constrains the Court from dismissing the appeal on the basis of car parking. 2. The omission of studio apartments from parking requirements is clearly deliberate because immediately following, within the same subcl (2), the size requirements apply to studios as well as 1, 2 and 3 bedroom apartments. Given that the Affordable Housing SEPP promotes affordable housing, and it is commonly accepted that the provision of parking spaces add cost to development, it is a sensible and appropriate contextual approach to the construction of cl 14(2) that a zero requirement for studios is the outcome intended by the provision. 3. Secondly, that even in the event that studio apartments are defined as one-bedroom apartments, which the Applicant rejects, the number of spaces required by the provisions of the Newcastle Development Control Plan 2012 (NDCP) are more than accounted for by the site's historical parking deficiency. 4. Thirdly, in the event the provisions of the NDCP are a relevant consideration, the NDCP can have no effect as the provisions relied upon are the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or are inconsistent or incompatible with cl 14 of the Affordable Housing SEPP, pursuant to s 3.43 of the EPA Act. 5. Fourthly, in the event I find the provisions of the NDCP to be a relevant consideration, but do not accept that s 3.43(5) of the EPA Act excludes consideration of such provisions, the particular circumstances of the site and consistency with the objectives of the development in the B4 zone, and the NDCP, warrants the flexible application of the provisions of the NDCP.
2. Underlying all of the above is the consideration of merit that must conclude that the impact of non-provision of parking is minor, given that parking in this part of the Newcastle CBD is time-limited; is well serviced by public transport and is located close to a shopping centre, health precinct, university and CBD services.
3. Likewise, the objectives of the B4 Mixed Use zone seek to provide a mix of compatible land uses; to integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling; and, to support nearby or adjacent commercial centres without adversely impacting on the viability of those centres.
4. Additionally, the Aims of Section 7.03 of the NDCP seek to "ensure that parking and service provision is adequate relative to the likely demand" (Aim 1); "reduce motor vehicle dependency and increase the use of public transport, walking and cycling" (Aim 2); and "to provide adequate and safe vehicle access to sites without compromising pedestrian access and streetscape qualities" (Aim 4).
5. The Applicant also identifies consensus between the traffic and planning experts that driveway access from Hunter Street is not appropriate as it "would diminish the adaptive reuse of the façade and result in potential pedestrian and vehicle conflicts at the Hunter Street interface" (Exhibit 9, par 2.1) and "would have adverse and unacceptable streetscape outcomes and reduce the opportunity for street activation" (Exhibit 10, par 13).

The Respondent's submissions

1. The Respondent submits that as cl 14(2)(a) of the Affordable Housing SEPP does not identify a parking standard for studio apartments, the 'must not refuse' provision is not triggered and so refusal of the proposal is not precluded on the grounds of car parking.
2. In the alternative, if the car parking provisions in the Affordable Housing SEPP are to be relied on, then it is more appropriate to rely on rates applicable to dwellings containing 1 bedroom, which is the case in a studio apartment.
3. However, the Respondent considers the car parking standards at Table 1, Section 7.03.02 of the NDCP to be the relevant standard (Exhibit 2, 359).
4. For Residential Flat Buildings and Shop Top Housing in the Newcastle City Centre and Renewal Corridors, Table 1 provides, relevantly: "Small (<75m2 or 1 bedroom average 0.6 spaces per dwelling)" … Plus "1 space for the first 3 dwellings plus 1 space for every 5 thereafter or part thereof for visitors".
5. Additionally, Table 2 sets out requirements for delivery and service vehicles in respect of commercial premises with gross floor area (GFA) of less than 20,000m2 and requires provision for one space, and where development is for less than 200 flats or home units, 1 space per 50 flats or home units is also required (folio 362).
6. Finally, for development other than residential development in the Newcastle City Centre, Control A.11, Section 7.03.02 of the NDCP requires one car parking space be provided per 60m2 of GFA, which in this case, applies to the ground floor café (folio 349).
7. The total number of spaces required for the parking of vehicles, as assessed by Mr Kenney, is 29.
8. Variations to the parking rates in the NDCP are permitted under Section 7.03.02, Control B.2. However, the Respondent submits that absent a parking survey, green travel plan, car share strategy and the like, grounds for variation in parking rates are not made out.
9. The Respondent submits that the constraints of the site that preclude onsite car parking, servicing, deliveries and waste collection are all of the Applicant's design, imposed upon the Applicant by its own decision to purchase the subject site and not the adjoining site at No 7 Steel Street when both properties were offered for sale by expression of interest in 2019.(Exhibit 8, folios 28-32)

The parking requirements applicable to the site

1. The Applicant cites decisions of the Court supportive of an expansive view of the must not refuse provisions at cl 14 of the Affordable Housing SEPP, and principles of statutory construction that provide guidance where environmental planning instruments are silent or appear to conflict.
2. In Valen Properties Pty Ltd ATF Valen Properties Trust v Hurstville City Council [2015] NSWLEC 1045, the Commissioner found that, as 0.5 parking spaces had been provided for each dwelling containing 1 bedroom and at least 1 parking space had been provided for each 2 bedroom dwelling, the 'must not refuse' provision applied, but that as visitor parking was not a requirement of cl 14, the provision of none did not preclude the operation of the must not refuse provision.
3. Such a finding is said by the Applicant to be consistent with statutory presumptions where, in essence, express reference to one matter indicates that other matters are excluded, and where there is a conflict between general and specific provisions, the specific provisions prevail.
4. I do not read cl 14(2)(a)(ii) to omit essential text, or to be silent as to the parking provisions for studio apartments. The provision simply apportions car parking spaces on the basis of the number of bedrooms within a dwelling.
5. A dwelling, by its nature, cannot contain less than one bedroom, and so no lesser than one bedroom is required to be considered in the parking-to-bedroom ratio at cl 14(2)(a)(ii), which also provides for parking to 2-bedroom apartments and apartments of 3 bedrooms or more.
6. Clearly, where reference is made to a bedsitter or studio in cl 14(2)(b), such a reference assists in distinguishing the size of a studio apartment from that of a 1 bedroom apartment. However, notwithstanding the terminology adopted, both a studio apartment and 1-bedroom apartment share the characteristic of containing a bedroom.
7. A studio apartment is defined in the glossary of the Apartment Design Guide (ADG) as: "Studio apartment an apartment consisting of one habitable room that combines kitchen, living and sleeping space"
8. Whether a sleeping space, or bedroom, is fully enclosed by bounding walls is of little consequence, in my view. This is demonstrated by there being no practical difference between the open sleeping loft evident in the southern studio apartments, re-produced below, and a fully enclosed bedroom. In the case of the plan depicted below, the sleeping space is located on a mezzanine level, visually and physically separated from the living and kitchen areas by a stair and large void, but within the volume of one habitable room.
9. Likewise, the arrangement of partitions and built-in furniture, in the form of storage cupboards, in the northern apartments clearly delineate what may be considered a bedroom, albeit somewhat open to the kitchen and living rooms or living spaces.
10. Accordingly, I find the Applicant would need to achieve parking at the rate of 0.5 spaces/dwelling for the 34 units proposed, or 17 spaces for the residential component of the development to obtain the benefit of the must not refuse provision at cl 14(2)(a)(ii).
11. As this has not been provided, the Court's determination is not constrained by the must not refuse provisions in cl 14(2)(a) of the Affordable Housing SEPP, and it is appropriate for the Court to consider the likely environmental impact arising from the shortfall in the parking otherwise required.
12. In so doing, I note that subcl 14(3) relevantly provides that a consent authority, or the Court on appeal, may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (2).
13. While the parking provisions at cl 14(2)(a)(ii) apply to the proposed development for the purposes of triggering the must not refuse provision, the parking provisions are not parking requirements as such.
14. Instead, these are found in the NDCP at Table 1 and Table 2, as summarised at [46]-[48] and I accept Mr Kenney's assessment of 29 parking spaces.
15. That said, the parking rates contained in Table 1 and 2 are subject to variation in terms set out in Section 7.03.02, Control B.2 of the NDCP.
16. Control B.2 (a)-(m) sets out those things to which the consent authority, or the Court on appeal, must have regard when considering variation of the parking rates, in the following terms: "(a) the size and nature of the development, including any change of use proposed, the amount of additional floor area relative to the existing floor area and the increased parking demand likely to be generated (b) the applicability of other Council policies (c) the mix of uses, the hours of operation and timing of peak demand for each use, including any overlap of parking demand (d) results of any comprehensive parking survey submitted in support of the application (e) whether a Green Travel Plan has been provided and a written agreement between Council and the owner/occupier is established for implementation of the Green Travel Plan (f) whether a car sharing scheme is proposed to be implemented (g) access to public transport services and the probable transport mode of staff and patrons or customers of the development (h) availability and accessibility of public parking facilities in the vicinity of the proposed development (i) the availability of kerb-side parking opportunities in the vicinity of the proposed development (j) continuity, streetscape and heritage significance (k) existing and likely future traffic volumes on the surrounding road network, traffic circulation and safety (l) the impacts of providing on-site parking (m) anticipated impacts of not providing for adequate on-site car parking."
17. The Applicant considers the evidence of Mr Maynard at pars 3.3-3.9 of the joint report to provide an appropriate response to those aspects at [67].
18. Whether or not the rates contained in the NDCP are subject to variation, as sought by the Applicant, also depends, in part, on whether a historic parking deficiency applies to the site.
19. "Historic parking deficiency" is a term defined by the NDCP as follows: "The historic parking deficiency is determined by calculating the number of parking spaces required under the provisions of this DCP for an existing building or use and subtracting the number of spaces currently provided for that building or use." (Exhibit 2, folio 344)
20. Section 7.03.02, Control B.3, of the NDCP provides for the application of the historic parking deficiency: "For alterations, additions or change of use of an existing building, a departure from the rates set out in Table 1 may be considered if a historic parking deficiency applies. However, a historic parking deficiency does not apply in the case of total redevelopment of the site."

Whether a historic parking deficiency applies

1. While the Applicant's primary submission is that the must not refuse provisions apply, Mr Eastman, counsel for the Applicant, submits that in the alternative, the historic parking deficiency on the site leads to the same result.
2. The Applicant submits that as the Hunter Street façade is being retained, the proposed development is not 'total development' and so the site benefits from a historic parking deficiency, assessed by Mr Maynard in his Traffic Study to be 25 vehicles.
3. The Respondent submits such an assessment is based on a calculation of floor space of the previous warehouse development, using current commercial parking rates for the City Centre that does not reflect the true historical parking demand of the site.
4. In particular, as it is commonly held that rear access previously existed on the site, parking demand may have been lower than the rate assumed by Mr Maynard.
5. Furthermore, the nature of development now proposed on the site removes all traces of the former warehouse use, but for the front façade. Accordingly, the development proposed must be considered 'total development' to which the historic parking deficiency does not apply.
6. The architectural drawings at Exhibit C, Tab 2, indicate the front facade and footings are to be protected and maintained (Dwg A-091), and that portions of the side and rear boundary walls are also to be retained (A-030 and A-091). Where existing brick walls are to be demolished, notations advise bricks are to be salvaged for reuse in proposed paving. Six original cast iron columns, and an existing steel beam are also identified to be retained and relocated (A-030).
7. The term 'total redevelopment' is not further defined in the NDCP, however when Control B.3, Section 7.03.02 is read as a whole, the meaning of the term appears to be that which is other than alterations and additions, or change of use of an existing building. In the circumstances of this site, the existing building is to be demolished, but for those elements at [77] and the extent of demolition proposed is such that consent for alterations and additions is not sought.
8. That said, for the reasons set out below, I accept that a historic parking deficiency applies: 1. Firstly, I accept the Applicant's submission that the extent of the existing building fabric to be retained, and for that matter reused, is more than tokenistic. In addition to the full height of the front façade, somewhere between 30-50% of the perimeter walls are retained at the ground floor which is sufficient, in my view, to suggest that the development is other than 'total development'. 2. Secondly and relatedly, I accept the agreed position of the traffic experts, at par 2.1 of the traffic report (Exhibit 9), that "on site parking opportunities are constrained by the location and footprint of the site and intended reuse of the existing facade." That is, the retention of the front façade, while not a significant proportion of existing building fabric, is a significant element of building fabric that, in no small part, contributes to the shortfall in parking. 3. Thirdly, while rear access appears to have been possible sometime in the past, there is no evidence that the rear access, when it was in use, provided parking on the site and so I accept that a deficiency has been a feature of the site for some decades.
9. As I accept onsite car parking is unlikely to have been a feature of the site in the past, and access for the same today would "diminish the adaptive reuse of the façade and result in potential pedestrian and vehicle conflicts at the Hunter Street interface" as summarised by [42], for what the traffic experts consider to be, in essence, limited return, I consider the extent of existing building fabric proposed to be retained is sufficient to warrant application of a historic parking deficiency.
10. Furthermore, the parking deficiency is calculated in accordance with guidance found in the NDCP and so I find the historic parking deficiency of 25 spaces as assessed by Mr Maynard applies.

Servicing the site

1. The Respondent submits that a consequence of the failure to provide any parking on site, is that all deliveries, contractors, removalists and the like will be forced to rely on a loading zone in Steel Street, located 50m from the site to the west, or time-limited parking zones located approximately 80m-100m to the west of the site.
2. The planning experts agree it is not unusual for servicing, removals and maintenance vehicles to rely on loading zones in CBD locations, and the traffic experts agree that onsite parking for the same is not required for servicing of the development to be adequate.
3. That said, Mr Kenney believes the trips generated by service and delivery vehicles will have a substantial impact on parking demand in the area to the detriment of other users already reliant on the limited parking available.
4. The traffic experts agree that service and delivery vehicle trip generation is assessed by reference to the 'Freight Trip Generation to High Density Residential Developments in Sydney', published by Transport for NSW, and dated May 2021 (Exhibit B, Tab 5), reference to which concludes 0.17 trips are generated per unit, per day, resulting in a total of 1.33 trade or serviced-related trips for the proposed development.
5. Mr Kenney notes 23% of these trips are trade or service-related, with a dwell time of over 3 hours assumed. Conversely, Mr Maynard notes 77% of all trips are delivery/pick up-related, with a dwell time of just over 6 minutes assumed.
6. The Applicant submits that the requirements for delivery and service vehicles set out in Table 2, Section 7.03.02 of the NDCP (Exhibit 2, folio 362) is between 0-2 spaces.
7. Mr Maynard believes the Steel Street loading zone is a suitable location for general residential bulky deliveries, and for deliveries to the ground floor cafe.
8. Additionally, temporary parking permits are available from the Council to enable parking for extended periods in on-street locations (Exhibit 3, folio 16), and are suited for use by removalists and the like.
9. With respect to longer-stay trade and service-related parking, 1.33 trips per day with a dwell time of 3 hours is a negligible demand to impose that is likely to be adequately served by the 2 hour parking in the vicinity of the site.
10. The Respondent submits the Court is without a parking survey to verify that existing on-street parking can accommodate the additional demand.
11. According to the Applicant, that assessment is in the form of the review prepared by SECA Solution dated 5 June 2020, (the Traffic Study) (Exhibit A, Tab 4) and the Transport Addendum, prepared by Stantec dated 2 August 2021 (Tab 24) which includes a Loading Management Plan at Attachment 2.
12. The Applicant also proposes a Green Travel Plan be prepared as a condition of consent.
13. The Applicant's Waste Management Plan (WMP), prepared by MRA Consulting Group dated 21 October 2021, proposes waste collection by private contractor using a 'collect and return' collection method. (Exhibit C, Tab 6)
14. This method is described as being within 10m of the kerbside in accordance with Council's recommended travel distance, and where a rear loading waste collection vehicle will be able to stop for a period of around 3 minutes, clear of the cycleway.
15. The traffic experts agree that onsite waste servicing and collection is not required, that onsite manoeuvring of waste collection vehicles would be impractical, and that waste collection should occur on Hunter Street.
16. As the Hunter Street frontage is currently subject to 'No Stopping' restrictions, Mr Maynard proposes an application to the Council's Local Traffic Committee (LTC Application), set out in the Applicant's proposed Condition 13, to shorten the bus zone at the front of the site beyond peak periods to allow a time-restricted loading zone or a 'no parking' restriction at the eastern end of the bus stop.
17. In this scenario, waste collection would take between 3 minutes (WMP, p6) and 10 minutes (Exhibit 9, par 4.9), and occur outside commuter hours or at times when the cycleway is unlikely to be in use.
18. In the alternative, should the LTC application fail, waste collection would be from Steel Street loading zone, 50m to the east, which the Respondent believes would require multiple trips, cause noise and further compete with existing local businesses who currently rely on the Steel Street loading zone.

Conclusion

1. While the parties identify car parking as the central issue in this matter, it is necessary to first demonstrate that a number of jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met.

Acid Sulfate Soils

1. The site is identified at cl 6.1(2) of the NLEP as being within an area classified as Class 4 soils, and the development proposes excavation below the natural ground level greater than 2m in depth.
2. An Acid Sulfate Soils Management Plan prepared by Douglas Partners dated July 2020 is found behind Exhibit A, Tab 10 (Appendix 7) in which the following is identified:

• Reference to the Acid Sulfate Soil Risk Map prepared by the Department of Land and Water Conservation indicates a low probability of Acid Sulfate Soil at depths greater than 3m.
• Testing has identified Acid Sulfate Soils in locations north of the site.
• Acid Sulfate Soils are likely to be exposed during excavation and dewatering on the site.
• Neutralisation, management and remedial action in the event Acid Sulfate Soils are encountered.

Mine Subsidence

1. Part 3 of the Coal Mine Subsidence Compensation Act 2017 requires approval for certain development within mine subsidence districts. Stamped plans and a Notice of Determination dated 15 June 2020 (Exhibit A, Tab 10) confirm approval by Subsidence Advisory NSW.

Remediation of contaminated land

1. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, the requirements of which were transferred on 1 March 2022 to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP), I have given consideration to the potential contamination of the land.
2. The development application is not supported by a site investigation report, but instead relies on the Amended Statement of Environmental Effects, prepared by Willana Urban dated 27 July 2021, which states: "The land is unlikely to be contaminated and no preliminary investigation is triggered in this case given: The site is not within an investigation area or identified under the LEP as constituting contaminated land or land that must be subject to a site audit statement. The subject site and adjoining properties are not subject to a legal notice for a matter listed under Section 59(2) of the Contaminated Land Management Act 1997. There are no restrictions on the use of the site, or conditions attached to the previous consent for residential use. The site is not within an investigation area or contained land uses referred in Table 1 of the contaminated land planning guidelines. Given the above factors, no further investigation of land contamination is warranted in this case. The site is suitable in its present state for the proposed development. Therefore, pursuant to the provisions of SEPP 55, Council can consent to the carrying out of development on the land."
3. A chronology of land uses on the site and in the vicinity of the site is set out in the Statement of Heritage Impact Addendum (Exhibit A, Tab 22), including relevantly: "Following recommendations in Commissioner Bigge's report on the colony in 1824, the Australian Agricultural Company was invited to assist in the development of a coal mining industry. The AA Co. acquired 2000 acres of land to the west of Brown Street and coal production started on the last day of 1931. … The site is location opposite what was a harbour related, light industrial area. In the 20th century this area featured car yards, petrol stations, white goods wholesaler and similar businesses." (p 26)
4. While the site does not currently contain land uses referred in Table 1 of the contaminated land planning guidelines, the development application proposes to carry out development for the purposes of residential development, addressed by those provisions at cl 4.6(2)(c) of the Resilience and Hazard SEPP.
5. After careful consideration of the historical chronology contained in the Statement of Heritage Impact Addendum, I conclude there is incomplete knowledge as to whether development for a purpose referred to in Table 1 of the contaminated land planning guidelines has been carried out in the past, during which time it would have been lawful to carry out such development.
6. I note firstly the site appears to be within an area that would likely be within the area of 2,000 acres west of Brown Street, consistent with the parcel granted to the Australian Agricultural Company on which mining and extractive industries occurred from 1831; and secondly that land use on the site in the period of 1872-1917 is unknown, after which use of the site as a draper's is documented.
7. In that circumstance, and where, as in this matter, the application is for a change of use on the land, subcl 4.6(2) of the Resilience and Hazard SEPP provides that the consent authority, or Court on appeal, must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
8. Accordingly, I intend to direct the preparation of such a report which I address further at [129(1)].

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

1. Clause 16 of the Affordable Housing SEPP provides for the continued operation of the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65).
2. A note at the introduction to Part 4 of the SEPP 65, is in the following terms: Note - The Environmental Planning and Assessment Regulation 2000 also contains provisions dealing with the application of the design quality principles and the Apartment Design Guide in connection with development to which this Policy applies. See, for example, clauses 21A, 50, 115, 143A and 154A.
3. Clause 50 of the EPA Regulation provides, relevantly: 50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994) (1) A development application must - (a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and (c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and (d) be lodged on the NSW planning portal. (1A) If a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, the application must be accompanied by a statement by a qualified designer. (1AB) The statement by the qualified designer must - (a) verify that he or she designed, or directed the design, of the development, and (b) provide an explanation that verifies how the development - (i) addresses how the design quality principles are achieved, and (ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved.
4. In short, the design statement, prepared by a qualified designer, is a requirement of subcl 50(1A) of the EPA Regulation, and is to be in the form set out at cl 50(1AB).
5. For clarity, cl 3 of the EPA Regulation defines 'qualified designer' to mean a person registered as an architect in accordance with the New South Wales Architects Act 2003.
6. The design statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr John Baker (Reg No.3552) is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.
7. On the basis of the design statement prepared by Mr Baker, I am also of the opinion that the proposal, but for car parking, is consistent with those standards at cl 30 that cannot be used as grounds to refuse development consent, and I consider that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2) of SEPP 65.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1106555M_03, dated 28 October 2021) at Exhibit C, Tab 8, prepared by ANEC in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Merit considerations

1. As stated at [81], a historic parking deficiency of 25 car spaces applies to the site and the NDCP requires a total of 29 car spaces.
2. I accept a variation in parking rates should be applied to the proposed development for the reasons that follow: 1. Firstly, I accept the proposition advanced in the Traffic Study and Traffic Addendum that while the site lacks on street parking in front of the site, on-street and off-street parking options are located close by, and that permits are available to residents should longer-stay parking be required. 2. Secondly, on the basis of the same reports, I consider the site to be well served by a range of public transport modes including bus, light rail and heavy rail. 3. Thirdly, the site is located within close walking distance of shopping, study and recreational centres. 4. Fourthly, just as the Respondent submits that a parking space is an amenity that should be provided to residents of the development, I consider the separated cycleway installed by the Respondent to the frontage of the site is likewise an amenity. The immediacy of the cycleway to the site, coupled with the bike parking facilities proposed on the ground floor, represents a level of convenience that may be described as an amenity enjoyed by the site. 5. Fifthly, having regard to Section 7.03.02, Control B.2 of the NDCP, I accept that:

• It is appropriate to apply a historic parking deficiency to the site, for the reasons outlined at [79]-[81].
• The Traffic Study and Transport Addendum provide an adequate assessment of the location and characteristics of local traffic and parking conditions to serve as the survey sought by provision (d) of Control B.2.
• A green travel plan is proposed as a condition of consent, consistent with provision (e).
• Access to public transport services is immediate to site (provision (g)), and the site is in close proximity to both long and short stay public parking facilities (provision (h)), with kerb-side parking opportunities in the vicinity, where not otherwise precluded by the addition of the cycle lane (provision (i)).
• In respect of provision (j), I accept the agreement of the experts that the continuity, streetscape and heritage significance of the area are advanced by the avoidance of vehicular access through the Hunter Street frontage, which necessarily impacts on providing on-site parking (provision (l)). 1. Sixthly, I consider the proximity of the loading zone on Steel Street to be a common feature of sites in CBD locations and its use by vehicles servicing the subject site to be consistent with its intended purpose. In particular, I accept that the loading zone is likely to be available for waste collection services given the time of day in which collection occurs.

1. I have also considered the possible effect of the Applicant securing a right of carriage over No 7 Steel Street that would connect the site to King Street. Even if such access was secured, the traffic experts agree that parking on the site would be limited and to the extent that such access may assist in servicing the site with deliveries and the like, for the reason stated at [121(6)], I accept the loading zone performs that function.

Heritage Conservation and character

1. The proposal comprises new residential development behind the existing Hunter Street façade that is, according to notes evident on Drawing A-200 (Exhibit C, Tab 2), to be protected, retained and restored.
2. The protection, retention and restoration of the façade, and the proposed reuse of existing bricks salvaged from the existing building fabric is consistent with the objective of cl 5.10 of the NLEP to conserve the European heritage significance of heritage conservation areas.
3. On the basis of the Aboriginal Cultural Heritage Assessment Report (Exhibit D, Tab 4), prepared by AMAC Archaeological dated February 2022 and the conditions of consent, I am satisfied that provision has been made to secure an Aboriginal Heritage Impact Permit (AHIP) within the terms of the National Parks and Wildlife Act 1974 prior to excavation of the site, and so conserve Aboriginal objects and Aboriginal places of heritage significance.
4. Relatedly, for these reasons, I also consider the proposed development to be compatible with the character of the local area, pursuant to cl 16A of the Affordable Housing SEPP.
5. Heritage issues and streetscape constraints are matters to which the Court must have regard, among others, when considering whether the development exhibits design excellence pursuant to cl 7.5(3)(d)(i) of the NLEP. I have considered those matters set out at cl 7.5(3) of the NLEP and, assisted by written submissions prepared by the Applicant's architects, BKA Architecture, for the Respondent's Urban Design Consultation Group dated 20 August 2020 (Exhibit A, Tab 11) and 23 November 2020 (Exhibit A, Tab 12), and the design statement at [118] prepared by Mr John Baker, I conclude the development exhibits design excellence.

Directions

1. For the reasons set out above, it is my preliminary view that the development application is deserving of the grant of consent. However, for the reasons stated at [111], I consider it appropriate to direct the Applicant to provide the Court with certain documents to permit the finalising of conditions of consent.
2. The Court directs that: 1. The Applicant, within 21 days of these orders, is to file and serve a report specifying the findings of a preliminary investigation of the land concerned, carried out in accordance with the contaminated land planning guidelines. 2. The parties are to confer on the findings of the report, and within 28 days of these orders, file and serve conditions of consent incorporating relevant procedures or outcomes, if any, arising from the findings of the report.

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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: 13 May 2022