32 The Avenue Hurstville Pty Ltd ATF 32 THE AVENUE HURSTVILLE TRUST v GEORGES RIVER COUNCIL

Background

1. On 27 September 2022, the Council filed its Amended Statement of Facts and Contentions (ASOFAC) (Exhibit 1).
2. Leave was subsequently granted by the Court on 28 October 2022 for the Applicant to rely on an amended development application (the Proposed Development, as amended) (Exhibit N), on the basis agreed by the parties pursuant to s 8.15 of the EPA Act.
3. The Proposed Development, as amended, is for demolition of the existing structures on the Site, construction of a mixed-use development containing a ground floor retail tenancy, 23 residential apartments and rooftop communal open space with barbeque and toilet and one level of basement carparking for 31 cars and associated landscaping.

Hurstville Local Environmental Plan 2012

1. The Site is zoned B4 Mixed Use under Hurstville Local Environmental Plan 2012 (HLEP). Residential flat buildings and commercial premises (including retail shops) are permitted with consent in the B4 zone and consent is required for demolition (cl 2.7 of the HLEP).
2. Clause 2.3(2) of HLEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are: • 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 allow for residential development in the Hurstville City Centre while maintaining active retail, business or other non-residential uses at street level.
3. Part 4 of the HLEP contains Principal Development Standards.
4. Clause 4.3 of the HLEP, Height of buildings, specifies a maximum building height of 15m. The parties agree that the height exceeds that development standard by 2.32m or 15.46%, with a maximum height of 17.23m.
5. A request to vary the maximum building height (Written Request) under cl 4.6(3) of HLEP, was prepared by GYDE consultants on behalf of the Applicant to justify the contravention of the development standard (Exhibit O).
6. Clause 4.4(2) of the HLEP provides for a maximum floor space ratio (FSR) of 1.4:1 for No 30 The Avenue and 2.5:1 for No 32 The Avenue.
7. Clause 4.4(2) states that "the maximum floor space ratio for a building on any land is not to exceed the floor space ratio for the land as shown on the Floor Space Ratio Map". The FSR Map shows that there are two FSRs applicable to the Site. Lot 185, No 30 The Avenue has a maximum FSR of 1.4:1; Lot 186, No 32 The Avenue has a maximum FSR of 2.5:1. The parties agree that the amended plans satisfy the FSR development standard.
8. Clause 6.6 of the HLEP, Active Street frontages, applies to the Site. Development consent must not be granted to the erection of a building unless the consent authority is satisfied that the building will have an active street frontage. The updated Statement of Environmental Effects prepared by GYDE (Exhibit B) addresses how the design has met this standard. The Proposed Development provides for retail uses along the street which satisfies the requirement for an active street frontage along The Avenue.
9. Clause 6.7 of the HLEP, Essential services, states that consent must not be granted unless the consent authority is satisfied that services that are essential to the development are available or that adequate arrangements have been made to make them available when required. I am satisfied from the evidence that adequate services (including vehicular access) are available to the Proposed Development.
10. Clause 6.9 of the HLEP, Airspace Operations, applies to the Site. It is understood that the DA was referred to Sydney Airport Corporation by the Council on 13 October 2021 and no response was received.

Georges River Local Environmental Plan 2021

1. The Georges River Local Environmental Plan 2021 (GRLEP) commenced on 8 October 2021 and repealed the HLEP. However, as the DA was lodged on 1 October 2021, it remains subject to the provisions of the HLEP as a result of the savings provisions in cl 1.8A of GRLEP: 1.8A Savings provisions relating to development applications (1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
2. As a result of cl 1.8A the GRLEP does not apply to the DA, but as a draft instrument, is a matter for consideration under s 4.15(1)(a)(ii) of the EPA Act. I note that the zoning, maximum building height and FSR controls remain the same under GRLEP as they are under HLEP. Although residential flat buildings are prohibited under GRLEP, commercial premises (including retail premises) and shop top housing remain permissible with consent.
3. Of relevance to the DA, there are some new clauses in GRLEP, including:

• Clause 4.4B Exceptions to floor space ratio - non-residential uses
• Clause 6.10 Design Excellence
• Clause 6.11 Environmental sustainability
• Clause 6.13 Development in certain business zones

1. There is also a new objective in the B4 Zone in GLEP: "… • To encourage the provision of community facilities and public infrastructure so that all residents have reasonable access to a range of facilities and services."
2. I have taken these clauses in GRLEP into account in my consideration of the DA.

Hurstville Development Control Plan No.2-Amendment No. 12

1. Hurstville Development Control Plan No. 2- Amendment No. 12 (HDCP) applies to the Site with Parts 1. Introduction; 3. Strategic Context; 4. Hurstville City Centre Precinct (4.4 City Centre North); 5. Controls for Residential, Commercial and Mixed Used Development (including 5.4 Transport, Traffic, Parking and Access); and 6. Site Planning Considerations, particularly relevant to the application. The Site is located within the City Centre North Precinct under Part 4 of HDCP.
2. Under Section 5.3.4 of HDCP, The Avenue has been established as a Second Order Street and a transition zone as it adjoins an established residential area with a maximum 12m building height limit under the HLEP.
3. The Building Form Character principles guiding the future development included in Section 5.2.1 are: "(a) Provide an appropriate high quality public domain; contribute to the character of streetscapes, parks and public spaces and linking them. (b) Establish an appropriate scale and character for the City Centre while promoting pedestrian comfort, safety and sustainability. (c) Promote a high quality urban form outcome through appropriate articulation and building material. (d) Respond to the natural topography, creating an interesting skyline, whilst optimising views. (e) Contribute to achievement of a sustainable City Centre which is functional and adaptable for current and future uses. (f) Provide an active streetscape, promoting visual and physical connections at ground level. (g) Be appropriate in scale so as to protect amenity and privacy and optimize passive solar access in both the private realm and the public domain. (h) Protect and enhance the heritage values of the City Centre. …"

State Environmental Planning Policies

1. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG) apply to the application and are relevant to the contentions in the case. Clause 28(2) of SEPP 65 requires a consent authority to take into consideration the following prior to determining a development application: 1. The advice (if any) obtained from the design review panel, and 2. The design quality of the development when evaluated in accordance with the design quality principles, and 3. The Apartment Design Guide.
2. State Environmental Planning Policy (Resilience and Hazards) applies to the Site. Chapter 4 Remediation of land is of relevance. The Applicant provided a Preliminary Site Investigation (PSI) Report by Canopy Enterprises within the Amended Application (Exhibit E).
3. State Environmental Planning Policy (Biodiversity and Conservation) 2021, in particular, Ch 11 Georges River Catchment applies to the Site.
4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also applies to the application.

Public submissions

1. The Application was placed on neighbour notification between 28 October 2021 and 11 November 2021. One submission in objection was received. The submission raised privacy and solar access as concerns. The objector's submission was considered by the Council and the Court.

Issues

1. The contentions of the ASOFAC that the Council has pressed in the matter, can be summarised as follows:

• Contention 1 - Inappropriate siting and bulk;
• Contention 2 - Development results in poor amenity (solar access);
• Contention 3 - Inadequate provision for on-site loading and waste removal;
• Contention 4 - Vehicular access is unsatisfactory

1. The Council's contentions regarding the non-compliant building height and FSR and stormwater drainage are resolved by the Amended DA and further information submitted. A number of other contentions relating to inadequate information raised by the Council's ASOFAC (Exhibit 1) were addressed, to Council's satisfaction, by the Amended plans (Exhibit N).
2. The traffic experts agree that with regard to parking provision, the proposal provides a surplus of one visitor space, and allocation of the one visitor space to the retail component of the development would resolve this issue. They also agree that the amended plans resolve the bicycle parking issue raised by the Council.

Contention 1 - Whether the proposal will have an inappropriate siting and bulk

1. The particulars in this contention are as follows: 1. This part of the Avenue has a suburban character and is a transitional area between the residential zones and the main retail core. A building typology of a continuous street wall is not appropriate in this context. The proposal should not emulate the poor urban design of the corner building at No 38 The Avenue. 2. The proposal does not adequately respond to SEPP 65 Principle 1: Context and neighbourhood character, and the ADG with regards to building separation and ADG Building separation Objective 3F-1. Considering the blank northeast façade of No 24 The Avenue, the context and the streetscape, a minimum 6m setback should be provided to the southeast boundary, especially considering the non-compliant rear setback and 0m setback to the northwest boundary. This will reduce the building bulk, contribute to the urban form of the area, enhance amenity and sky-views. 3. Although there are no windows (other than a bathroom) to Units 2.07, 3.07 and 4.07, not compromising on the setback, would also improve the amenity to the main bedrooms (by the provision of larger windows), and would also reduce the extent of blank façade on the south-eastern elevation. 4. Where the side setback has increased to 5.661m, the angled windows should be setback 6m and the angled arrangement would not be required if the setback of Units 1.07, 2.07 and 3.07 was 6m. 5. The largely unarticulated south-eastern façade, with little architectural detail or variation in material and colours will dominate the streetscape when travelling west and adds to the building bulk. Amendment to this façade in terms of materials, finishes and greater articulation is required. 6. The predominately flat roof form does not relate to the streetscape or enhance the streetscape character. The enlarged pitched roof skylights are not integrated with the overall roof from and appear as "add-ons". 7. A similar setback for future development on No 26 and 28 The Avenue, would then result in total 12m break in the building mass along The Avenue and maintain the rhythm and landscape setting of the streetscape dotted with heritage items in accordance with the design principles.
2. In essence, this contention relates primarily to building separation and the siting of the Proposed Development. The planning and urban design experts did not agree on whether the proposal will have an inappropriate siting and bulk. In particular, there was disagreement in the Joint Expert Report (Exhibit 5) with regard to the proposed setback from the south-eastern boundary.
3. The planning and urban design experts did agree that:

• The Site is within the City Centre North Precinct under Part 4 of the HDCP
• Clause 4.4 of the HDCP states that this area has an "interface with residential areas to the northern side"
• Clause 4.4.3 of the HDCP, Key Land Use Principles, discusses "3. where land adjoins established residential area on the boundary of the City Centre, the Precinct performs a transitional role, with new development to be suitably designed to maintain the amenity of adjoining residential land use."
• Clause 4.4.1 Characteristics of the HDCP also states "1. The City Centre North precinct concentrates most civic and community activities and high-rise residential and commercial developments in the City Centre.". The character of the street is a blend of development types, comprising single dwellings, some heritage items and four-storey mixed-use developments. This is consistent with the objectives of the B4 Mixed Use Zone under HLEP which include: • 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. …

1. The Council has relied upon Principle 1 of Sch 1 - Design Quality Principles under SEPP 65 and Objective 3F-1 of the ADG to contend that the Proposed Development presents a building typology that is inappropriate in context and too bulky and dominant on this lower side of The Avenue.

Particulars (a) - (d) and (g) - building separation/setbacks

1. Regarding particulars (a) to (d), Objective 3F-1 of the ADG relates to visual privacy. It identifies building separation distances that, if adopted in the proposed design, would achieve reasonable levels of privacy and requires separation distances to be shared between neighbouring sites. There are no particulars raised by the Council or their experts with regard to visual privacy.
2. Mr Dickson, architect and urban designer for the Applicant, provided evidence that the portion of the wall along the south-eastern boundary, where the setback is 4m from the side boundary, is less than a third of the overall distance, being a depth of 11m. Within that part of the building, Mr Dickson, noted that there is a high-level window on Levels one to four to bathrooms which are non-habitable rooms and which do not overlook the neighbouring property. Mr Dickson argued that for non-habitable rooms, the ADG requires a 3m setback and a 4m setback is proposed which therefore complies with the ADG and provides an acceptable separation between the Proposed Development and the neighbouring properties. He further argued that no separation is required for blank walls and the nil setback proposed at ground level for a length of 11m, complies with the ADG.
3. Mr Dickson's view is that a 4m setback to the south-eastern boundary is acceptable and consistent with surrounding development. He argued that there is no control in Council's DCP applying to this site for building setbacks or building separation. The proposal with a setback of 4m, was in his view in compliance with the ADG which sets a 3m setback for non-habitable rooms.
4. Mr Dickson noted that Principle 1 of SEPP 65 is satisfied because the application responds to the adjoining buildings by abutting 38 The Avenue and providing a reasonable side setback to 28 The Avenue. In Mr Dickson's view, the proposed building has a similar bulk to the building at 28 The Avenue and is consistent in height with other mixed-use buildings in the vicinity of the Site. Mr Dickson provided a drawing in the Joint Expert Report (Exhibit 5) which shows a form of future development at 28 The Avenue, which demonstrates a setback and physical separation from the Proposed Development can be achieved (Figure 4). Figure 4 Extract from Urban Design/Planning Joint Expert Report (Exhibit 5)
5. Ms Christy, the Applicant's Town Planning expert, provided evidence that she does not see any benefit in setting the ground floor 6m off the side boundary but believes this would result in a poorer design for the streetscape and pedestrian activity. She notes that the current design provides all essential services, fire egress and driveway, and still achieves an active frontage for at least half of the Site. Ms Christy notes that this would be significantly reduced if the 6m side setback was imposed for the ground floor, for no real benefit.
6. Contrary to this, the Council's urban design expert, Ms Pandey was of the view that a 6m setback to the southeast boundary will provide the much-needed relief and be in keeping with the desired streetscape character. Ms Warton, town planner for Council was similarly of the view that.
7. In Ms Pandey's opinion a minimum 6m landscape setback from the south-eastern boundary for the driveway and levels above ground will result in a good urban design outcome for the street and the area. It was Ms Pandey's view that a 6m setback will provide opportunity for the car park access to be totally integrated with the building's overall façade, which will present an aesthetically pleasing built form, minimises the dominance of the car park entry on the streetscape, enhances privacy and amenity and provide relief form the built-up area appropriate for a transition zone.
8. Ms Pandey provided evidence that the four-storey street wall height of the proposal was unacceptable, as the existing development at No 38 The Avenue with no building separation combined present an approximately 45m long four-storey wall with only a 4m setback to the southwest boundary above ground.
9. It was Ms Pandey's view that given the uplift in height and FSR for the area in recent years, it is very likely that the sites to the southeast will be re-developed to a similar scale to the proposed building. Ms Pandey's opinion was that if No 26 and No 28 were re-developed with no building separation, it will result in around a 75m long (including No 24 The Avenue) four-storey street wall height. Lack of adequate building separation will present an overwhelming bulk and scale, which is inappropriate and unsuitable to the context and contrary to the desired future character of performing a transitional role.
10. Ms Warton's evidence is that a 6m side setback can be achieved by minor changes to the proposed apartment design by converting the apartments in the north-eastern corner from 3 bedroom to 2 bedroom, relocating the driveway to be along the northwest boundary and relocating the ground floor waste rooms to the basement. However, when questioned about this at the on-site view, Ms Warton's evidence was that this change would be a substantial change to the design of the Proposed Development.
11. Ms Warton disagrees with Ms Christy that the provision of a 6m setback at ground level would on the south-eastern side would diminish the activation to the street. Ms Warton noted that the need for street activation in the statutory instrument (cl 6.6 of HLEP) refers to activation of the building, not the site boundary. In any case, having a break between buildings means that amenity and interest on the street will be provided by landscaping or there could be a landscape feature such as public art. Ms Warton is of the view that a 6m setback to south-east boundary for the proposed four storeys will reduce the building bulk, contribute to the urban form of the area, enhance amenity and sky views, provide opportunity for deep soil planting that will enhance the aesthetic appeal of the development. In Ms Warton's view this does not mean that the building is any less activated, it is simply a function of the Site being approximately 30.5m wide. Ms Warton's evidence was that the limits of further activation of the building are a result of the waste facilities being placed on the street and as outlined in the Waste Contention, the waste collection facilities should be moved into the basement. Figure 5 HDCP Vehicular Access Map (Extract from Exhibit 5)

Particular (e) - materials

1. The Council contends that architectural detail or variation in material and colours will dominate the streetscape when travelling west and adds to the building bulk.
2. Mr Dickson provided evidence that a mix of materials was proposed along the south-eastern façade and included angled walls, balconies and landscaping above the carpark entry to provide articulation in the building form.

Particular (f) - roof form

1. The Council contends that the predominately flat roof form does not relate to the streetscape or enhance the streetscape character and the enlarged pitched roof skylights are not integrated with the overall roof from and appear as "add-ons".
2. Mr Dickson and Ms Christy pointed out at the on-site view that a number of buildings in the streetscape have a flat roof form and, in their view, the proposed roof form will relate to the existing streetscape. Mr Dickson also pointed out at the on-site view that the clerestory windows would not be visible from the street.

Contention 2 - Whether the proposal would result in poor amenity (solar access and natural ventilation)

1. The amended plans provided an increased width of the slot on the south-eastern side of the building, which the planning and urban design experts agree improves natural ventilation to the building. Ms Pandey and Ms Warton agree that this slot will improve air circulation and hence cross-ventilation, and that this Particular would be satisfied with that amendment.
2. Contention 2 is therefore limited to solar access. The Council's contention is that the development has apartments with poor internal amenity in terms of solar access and that the development fails to meet the requirements of SEPP 65.
3. Ms Pandey provided evidence, with reference to Objective 4A-1 of the ADG, that a minimum of 70% of the habitable rooms of apartments do not receive 2 hours of sunlight between 9am and 3pm in mid-winter.
4. Alternatively, Mr Dickson provided evidence that the Proposed Development complies with the ADG, as identified in Drawing DA - 0-911, solar access for at least two hours to habitable rooms for 17 of the 23 units is achieved, which equates to 74% of the apartments. This exceeds the 70% minimum requirement in the ADG as the Site faces south. Mr Dickson noted that clerestory windows are employed in the design and these windows which provide sunlight to 3 apartments are not skylights.
5. Ms Pandey and Ms Warton raised concern that 3 of the 17 apartments rely on the clerestory windows to meet the requirements for solar access under the ADG.
6. Ms Pandey is also concerned about solar access to private open space within the Proposed Development. Mr Dickson provided evidence on Drawing DA - 0-911, that 14 units receive direct solar access in mid-winter. He noted that whilst there are 9 units which don't receive solar access on their private open space, the ADG recognises achieving the design criteria may not be possible on south facing sites. For those 9 units, Mr Dickson noted that daylight is maximised by the use of windows and balconies.
7. The Joint Expert Report (Exhibit 5) makes reference to the proposed common circulation spaces. Mr Dickson provided evidence that the proposal achieves the design criteria in Part 4F-2 of the ADG, with no more than 7 units off a circulation core and wider areas at apartment entry doors are provided. He notes that the ADG states a maximum of 8 units should be allowed and the proposal complies with this requirement.

Contention 3 - Whether the proposal has inadequate provision for on-site loading and waste removal

1. The Council originally raised a contention that there is insufficient information concerning waste management on the Site. Additional information has been provided, and the Council's position is now that the proposed waste management systems are not appropriate for the development and that conditions of development consent should be imposed that require a redesign of the development to provide waste collection onsite instead of kerbside collection.
2. The Council raised concern with the proposed kerbside collection of waste in front of the Site, due to safety reasons. Ms Ballesty, Council's waste expert, raised concern with the collection of waste from the kerbside noting in her evidence that it is expected that waste collection may be refused by private waste collection contractors, for safety reasons and indicated that she does not support the current proposal that places waste management operators (either Council contracted, or private waste contractors) at direct risk of physical harm.
3. The proposal, as amended, now proposes kerbside collection of waste outside the adjoining property, 28 The Avenue. There were no issues raised at the hearing by Ms Ballesty, with regard to collection of waste from outside 28 The Avenue. Mr Maynard, traffic expert for the Applicant, undertook an updated swept path assessment showing safe passage of vehicles when the loading zone is in use for waste collection. At the onsite inspection, on the first day of the hearing, Mr Maynard identified to the Court, the clear site lines available on approach from either Cross Street or The Avenue and that currently kerbside waste collection occurs along this section of the Avenue (see Figure 6). Figure 6 Existing kerbside waste collection (Extract Exhibit 4)
4. The traffic experts both agreed that waste collection could occur in front of 28 The Avenue. In paragraph 2.25 of the Joint Statement of Traffic Experts, Mr McCarthy, for the Council indicates that the Council does not raise any issues with waste collection being located along the frontage of 28 The Avenue (between the two driveways of 28 and 26 The Avenue), although in Mr McCarthy's view the superior option would be to ensure that reliance upon the adjoining neighbour's frontage did not occur. Mr McCarthy noted in his evidence that it was his preference that waste removal and unloading should be via the proposed basement.
5. The proposed redesign of the waste collection and unloading via the basement, as suggested by Mr McCarthy, was discounted by Mr Dickson and Ms Christy for several reasons including the Site constraints, the need for further excavation and the potential loss of deep soil planting at the rear of the Site. Ms Christy's town planning evidence is that providing the waste services in the basement will result in a poorer design outcome with amenity impacts on adjoining residents and the future users of the Site. The basement would need to be extended closer to the rear boundary which would result in a loss of deep soil landscaped area and potential to grow mature trees. Ms Christy believes this is a worse outcome from an environmental point of view.
6. Further, the Applicant's waste consultant, Mr Dickens provided evidence that due to the size of the block and the buildings' design constraints, it is not possible to service the building from within the Site. Mr Dickens notes that as indicated in the Waste Management Plan it is proposed to service the development utilising the Council's 'On Property Collection Service'. Mr Dickens noted that the Council has a contractual arrangement with its waste and collection contractor to collect the bins from a ground floor on-site bin storage area, where the storage area is located within 15m from the boundary. Mr Dickens noted that the bin storage area for the Proposed Development will comply with this requirement, and as such abate the need for on-site servicing.
7. The Council has proposed a condition, in accordance with the agreement reached in the Joint Expert Report (Exhibit 4) that an application be made to the Local Traffic Committee and if necessary Transport of NSW, to modify the "no parking signage" on the northern side of The Avenue along the frontage of 28 The Avenue, to provide for a "loading zone". That condition with minor variation is agreed to by the Applicant. The Council's legal representative noted in their closing submission that whilst the proposed waste removal method is acceptable, it is not its preferred option.

Contention 4 - Whether the proposal has unsatisfactory vehicular access

1. The issue relating to vehicular access was not resolved by the experts. Mr McCarthy raised concerns with vehicles entering the proposed driveway (pars 3.25 and 3.28, Exhibit 4) and suggested that the driveway should be positioned in the location of the intersection and become a fourth leg to the intersection. My Maynard expressed concerns with this suggestion at the on-site view.
2. Mr Maynard is of the view that it is clearly an untenable position to state that no suitable vehicle access location is available for the Site and is also contradictory to the HDCP. He notes that there are two existing driveways along the subject Site's frontage, as well as a further driveway for the adjacent medical practice immediately south of the Site boundary, with no known operational or road safety issues in that location over the last five years. In Mr Maynard's opinion the vehicle access driveway, in the location proposed, will provide safe ingress and egress to drivers and sufficient space so as not to interrupt the flow of traffic.
3. Additionally, from a planning perspective, Ms Christy notes that the proposed driveway is consistent with the HDCP controls, in particular the Figure 5.4.4 Vehicle access map which demonstrates that car park entries are permitted in this location (refer to Figure 7 below). Further, Ms Christy further notes that control (a) of Section 5.4.5 of the DCP states that Vehicular access points must be provided in accordance with Figure 5.4.4. She noted that the map from the HDCP shows a green line where car park entries are permitted, and it clearly demonstrates that a carpark entry is permitted on the southern side of the subject Site fronting The Avenue. Ms Christy notes that Section 5.4.5 of the HDCP, Vehicular Access and Manoeuvring, Location of Vehicular Access Control (a) states "Vehicular access points must be provided in accordance with Figure 5.4.4" and in her view, the subject application complies with this figure.

The Proposed Development exceeds the height of buildings development standard

1. The exceedance of the height control is not raised as a contention by Council, and I note, that the Council accepts that the Applicant's Written Request to vary the height control is satisfactory and that compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify contravening the development standard.
2. Notwithstanding, I need to be satisfied that the non-compliance with cl 4.3 of HLEP is acceptable.
3. The objectives of cl 4.3(1) of the HLEP are: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes, (c) to minimise the adverse impact of development on heritage items, (d) to nominate heights that will provide a transition in built form and land use intensity …
4. Clause 4.6 of the HLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the HLEP, but that power is subject to conditions.
5. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) of the HLEP requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The Proposed Development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and 2. The Proposed Development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 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 4. The Written Request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
6. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that: 1. the Applicant's Written Request has adequately addressed the matters required to be demonstrated by subcl (3) and; 2. that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
7. Clause 4.6(4)(b) of the HLEP also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the HLEP (Initial Action at [29]).
8. In support of the proposal, the Written Request states that, for the following reasons, compliance with the development standard found in cl 4.3 of the HLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard because: 1. The portion of the building which exceeds the maximum height limit is primarily situated in the centre of the building or relates to the north-western and rear parapet of the building, with the exception of the clerestory windows, which will not be visible from the public domain. 2. The proposed encroachments above the height limit (except for the clerestory windows) are limited to the lift over run, pergola, communal WC and they have been located in the centre of the roof, to minimise any potential impacts on neighbours. 3. The variation in height is a direct result of the slope of the land and the ground level being limited by the 1 in 100 year flood level. 4. The proposed built form of four storeys is consistent and compatible with surrounding development along The Avenue and within the CBD. 5. The minor variation sought will have no impacts on the surrounding buildings or the streetscape. 6. The front elevation, despite the variation, remains consistent with the existing and future character envisaged for this area. 7. Despite the minor non-compliance, the Proposed Development does not result in any unreasonable adverse amenity impacts on surrounding properties through appropriate building setbacks and separation. 8. Strict compliance would undermine the achievement of the B4 Zone objectives, namely to promote a mixture of compatible land uses and the carrying out of mixed use development so as to maximise public transport patronage.
9. The Applicant also submits that the underlying objective or purpose would be defeated or thwarted if strict compliance was required, because the proposal is generally of a height and scale permitted by the height control.
10. I am satisfied that the Written Request adequately addresses the matters required to be demonstrated by cl 4.6(3)(a) such that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the underlying objective or purpose of the development standard is met notwithstanding the contravention the standard, and because the underlying objective would be thwarted by requiring strict compliance.
11. Next, the Written Request addresses the environmental planning grounds on which the Proposed Development seeks to justify contravention of the development standard. The environmental planning grounds relied upon must be sufficient to justify a contravention of the development standard with a focus on the aspect of the development that contravenes the development standard, not the development as a whole.
12. Accordingly, the environmental planning grounds found in the Written Request must be adequate to justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
13. The Written Request relies on the following environmental planning grounds to justify contravening the development standard: 1. The Proposed Development, as amended, is of a form and scale that is consistent with the existing and future planning controls for the locality and is close to facilities and public transport. 2. The design of the proposal ensures that the dwellings within the development have an appropriate amenity in terms of privacy and solar access that complies with the ADG and HDCP. 3. The exceedance does not impose significant overshadowing, or loss of sky exposure on adjoining properties or on the public domain and does not result in unreasonable visual impact or loss of privacy to adjoining properties.
14. While I consider the location of the Site, and amenity of the proposed dwellings to be grounds that promote the benefits of carrying out the development as a whole, I accept that, other than the exceedance of the lift over run, pergola, communal WC and clerestory windows The development complies with the height standard and does not impose adverse environmental impacts on adjoining properties.
15. I am satisfied that the public interest test in cl 4.6(4)(a)(ii) of the HLEP is evidenced by conformity with the zone objectives at [15], and the objectives of the height standard at [19]. Furthermore, as the exceedance is primarily limited to the centre of the building, setback from neighbouring properties (with the exception of the clerestory windows) I am also satisfied that the concurrence of the Secretary of the Department of Planning may be assumed in accordance with cl 4.6(4)(b).

The proposal will have an appropriate siting and bulk

1. With regard to the siting of the Proposed Development, I do not accept the evidence of Ms Pandey and Ms Warton that a 6m setback to the southeast boundary will be in keeping with the streetscape character. There is no control in Council's DCP applying to this site for building setbacks and the Proposed Development complies with the required setbacks in the ADG. In addition, from my observations at the on-site view, the proposed setbacks either exceed or are consistent with other mixed-use developments in the vicinity.
2. I also do not concur with Ms Pandey's evidence that the 6m side setback can be achieved by minor changes to the proposed apartment design. In my view, a 6m setback would require substantial design changes and relocation of the proposed driveway, which the traffic experts agree is in the most appropriate and safest location. In Ms Christy's evidence, such changes are unwarranted as the location of the proposed driveway is consistent with the vehicle access diagram in the HDCP.
3. From my observations of the Site and the surrounding development and having regard to this context, I consider the development's design to be a reasonable response and consistent with the requirements of SEPP 65 and the ADG. I am satisfied that the setbacks of the Proposed Development, as amended, are appropriate to the Site and consistent with the existing and desired future character detailed in the HDCP.
4. I prefer and accept the evidence of Mr Dickson and Ms Christy that the 4m side setback is a suitable side setback, as it causes no amenity loss to surrounding buildings and is larger than the side setbacks of some of the nearby and adjacent buildings in the street.
5. A 6m setback would, in my view provide no benefit when viewed from the street as a break is already provided by the proposed setbacks at Levels one to three, which vary from 4m to 8m. A setback of 6m would also reduce the extent of the building fronting to The Avenue, which is inconsistent with the active street frontage requirements in HLEP.
6. Further, from my observations of the Site, the surrounding residential flat buildings and mixed-use buildings are generally of a similar height and bulk to the Proposed Development. The GRLEP also envisages a similar form of development, with no changes to the key numeric controls such as height and FSR and therefore the Proposed Development will be consistent with the desired future character of the area, as contemplated under the GRLEP.

The proposed internal amenity of the building is satisfactory

1. The Council's contention is that the development has apartments with poor internal amenity in terms of solar access and that the development fails to meet the requirements of SEPP 65.
2. From the evidence provided by the Applicant, I am satisfied that the proposal provides adequate solar access to the apartments (17 apartments out of 23 apartments) and complies with the design criteria in the ADG. I concur with Mr Dickson that the solar access provided by the clerestory windows to 3 apartments is acceptable in the circumstances of this case.

The proposed waste management is satisfactory

1. In considering whether the proposed waste management is acceptable, it is not the role of the Court to consider whether there is another, more efficient means of managing the waste within the Proposed Development. The assessment of the development application is instead confined to considering the acceptability of what is proposed. In doing so, I consider that the proposed waste management is satisfactory, for the following reasons.
2. Firstly, the proposal to have kerbside collection of waste outside No 28 The Avenue is agreed by the traffic experts to be acceptable and capable of occurring, subject to an application being made to and approved by the Local Traffic Committee to change the no parking signage. Whilst this method of waste collection is not the Council's preferred option, the Council do concede that subject to an appropriate condition on the consent to change the signage, the proposed method of waste removal is acceptable.
3. Secondly, as noted in the judgment by Commissioner Gray in Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405 at [104]: "In considering whether the proposed waste management is acceptable, it is not the role of the Court to consider whether there is another, more efficient means of managing the waste within a proposed development. The assessment of the development application is instead confined to considering the acceptability of what is proposed. …"
4. In considering the evidence before me, including the constraints of the Site, I accept the evidence of Mr Dickens, that kerbside waste collection utilising the Council's 'On Property Collection Service', as proposed by the Applicant, is acceptable. The Council's preference for an alternative design is of no relevance as the proposed method of waste removal complies with Council's HDCP.
5. Finally, I accept Mr Dicken's evidence that due to the size of the block and the buildings' design constraints, it is not possible to service the building from within the Site. I also accept Ms Christy's evidence that providing the waste services in the basement will result in a poorer design outcome due to the Site constraints, with potential amenity impacts on adjoining residents and the future users of the Site.

The proposed vehicular access is satisfactory

1. Regarding vehicular access to the Site, I am satisfied that safe vehicular access can be provided, it being noted that the Site currently has two existing driveways in The Avenue. So, to require the Applicant to go to the cost of having to redesign and move the location of the basement to the intersection, which effectively creates a fourth leg to this intersection, is in my view unnecessary, having regard to the low level of traffic that's generated as a consequence of the Proposed Development.
2. The evidence provided by Mr Maynard is that in this location the cars are travelling in a one-way direction and will likely be travelling at only 15 to 20 Km/h. Mr Maynard also pointed out that there is sufficient space within the service lane for cars to safely pass vehicles that are entering the driveway.
3. From my observations of the Site and the existing driveways in this location, I concur with Mr Maynard and accept his evidence that the proposed vehicular access is satisfactory.

Development consent should be granted

1. For the reasons that are set out above, all of the contentions raised by the Council, have been overcome with the Proposed Development, as amended.
2. I am satisfied that the Proposed Development is permissible on the Site, is consistent with the objectives of the B4 Mixed Use Zone and responds appropriately to the context of the Site and the desired future character of the area. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction, have been satisfied:

• The Proposed Development complies with the applicable development standards in the HLEP, apart from the maximum height development standard.
• For the reasons stated in [77] to [91], I am satisfied that the Written Request under cl 4.6 of HLEP, prepared by Gyde, seeking a variation to the height of building development standard is acceptable and should be upheld (Exhibit O).
• The Proposed Development, as amended, is accompanied by a BASIX certificate 1243990M dated 25 September 2021 prepared by Efficient Sustainability in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (Regulation 2000) (Exhibit L).
• Consideration has been given as to whether the subject site is contaminated as required by Ch 4 of the State Environmental Planning Policy (Resilience and Hazards). I am satisfied, from the Preliminary Site Investigation (PSI) prepared by Canopy Enterprises, that as the Site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated (Exhibit E).
• Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) and, in particular, s 2.48, which requires notice to be given to the electricity authority of the DA. The parties confirmed that the DA was referred to Ausgrid and that a response consenting to the application and providing draft conditions was received by the Council. I understand that the Council has reviewed the updated plans and documents submitted and is satisfied that the Proposed Development is consistent with the planning principles and environmental considerations under Ch 2, Subdivision 2 of the Transport and Infrastructure SEPP.
• In relation to SEPP 65 a Design Verification Statement, as required under cll 50(1A) and 50(1AB) of the Regulation 2000 has been prepared by, Paul Oreshkin, Registered Architect, dated 13 September 2021 and was submitted with the Proposed Development, as amended (Exhibit B) and there are conditions of consent requiring further design verification at the Construction Certificate stage and prior to the issuing of an Occupation Certificate. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the Proposed Development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria. On the basis of the architect's statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG and the design quality principles.
• Consideration has been given to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), Ch 11 Georges River Catchment. The minor tree removal proposed as part of the application is acceptable and the Council has not raised any issue with the proposed trees to be removed which are detailed in the arboricultural impact assessment (Tab 5 Exhibit A). I am satisfied that the Proposed Development, as amended, is consistent with the requirements of this SEPP, in particular Ch 11 which raises certain planning principles to be considered. I am satisfied that the updated Flood Study report prepared by Kozarovski and Partners and Amended stormwater plans (Exhibit D and G) and the Proposed Development are consistent with the relevant planning principles and environmental considerations in Ch 11 of the Biodiversity and Conservation SEPP.

1. For these reasons, consent should be granted, subject to the conditions of consent as proposed by the Applicant.
2. The Orders of the Court are: 1. The Applicant's Written Request prepared under clause 4.6 of the Hurstville Local Environmental Plan 2012, seeking variation of the development standard for height under clause 4.3 of the Hurstville Local Environmental Plan 2012, is upheld. 2. The appeal is upheld. 3. Development Application No. DA 2021/0399 for demolition of existing structures, amalgamation of two existing lots, and construction of a four-storey mixed use building containing ground floor non-residential floor space and a residential flat building containing 23 units (3 x 1 bed, 9 x 2 bed, 11 x 3 bed), basement car parking for 31 cars and associated landscaping at 30 and 32 The Avenue, Hurstville is approved subject to the conditions in Amended Annexure A. 4. All exhibits are returned, except Exhibit A.

Acting Commissioner of the Court 122081.22 Amended Annexure A (479669, pdf)

Amendments 14 April 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as "Amended Annexure A". 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: 14 April 2023