ABC Planning Pty Ltd v Cumberland Council

Land and Environment Court (NSW)|2019-04-12|Before: Exhibits J

Judgment

COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of Development Application DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail / commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn.
The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 23 January 2019 records the background to the application and the relevant statutory controls. The essential facts follow.

The site and its context

The site is an irregular shaped lot formed by its frontages to Auburn Road, Queen Street, Harrow Road and Mary Street at what is known as 'Five Ways' within the Auburn Town Centre and close to the Auburn Railway station.

The issues

On the eve of the hearing, the applicant was granted leave to rely on amended plans that the applicant states were responsive to the joint expert reports and which are found in Exhibits A, B, C and D.
At the commencement of the hearing, the respondent acknowledged that as a result of substantial effort on the part of the applicant, experts and Council staff, a large number of the contentions had been resolved.
The parties are agreed that the proposed development complies with the provisions of the Auburn Local Environmental Plan 2010 (ALEP) in relation to the zone objectives, the floor space ratio and height of buildings.
The parties also agree that the remaining issues comprise the following: 1. the potential for adjoining properties at No.43 and No.45 Auburn Road, and Nos.1-7 Mary Street to be isolated by the development 2. excessive street wall height in two locations at Auburn Road and Harrow Road 3. whether on-site detention of stormwater is necessary as required by the Auburn Development Control Plan 2010 (ADCP).
At the site view and in court at the commencement of the hearing, the Court heard from objectors on issues that included:

Failure to enter into genuine negotiations with adjoining properties owners with a view to purchase and amalgamation of the sites
Car parking, and traffic congestion in the area
The economic impact of the proposed retail mix which, a representative of the Auburn Central development stated should not consist of a supermarket.
Adverse impact on streetscape.

Statutory controls

The proposed development is located within the B4 Mixed Use zone, which permits residential flat buildings, business and retail premises with consent, and has as its objectives: • 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 encourage high density residential development. • To encourage appropriate businesses that contribute to economic growth. • To achieve an accessible, attractive and safe public domain.
While the application is for a mixed used development, a significant proportion of the proposal consists of residential apartment development which falls within the scope of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65), and the associated Apartment Design Guide.
The provisions of the ALEP apply including the development standards found in Part 4 including relevantly cl 4.3 (Height of buildings) which provides for a maximum height of 49m on the site, and cl 4.4 Floor space ratio (FSR) which provides for a maximum permissible FSR of 5:1 on the site.

Consideration

Auburn is located on the main suburban railway line in Sydney's west, and the Five Ways site is at a visually prominent intersection within the Auburn Town Centre. Consideration of the three issues identified by the parties follows:

Site amalgamation

A number of existing properties along the southern boundary of the site facing Mary Street do not form part of the subject site. These properties may be grouped as follows:

No.43 and No.45 Auburn Road which are a pair of two-storey brick terraces containing businesses fronting Auburn Road
No.1-3 Mary Street, comprising 2 buildings in strata ownership with three separate owners
No.5-7 Mary Street which is a place of worship known as the Christian Assembly of NSW.

The respondent contends that the applicant has failed to demonstrate that adjoining parcels of land, not included in the development site, are capable of being economically developed contrary to the provisions of clause 8.1 and clause 14.5 of the ADCP and as a result the proposal will isolate the adjoining sites.
The respondent also submits that amalgamation of all lots within the block would produce a superior development outcome as it could result in a more consistent development outcome, produce a slimmer tower at Building A and ensure more apartments receive the required duration of direct sunlight.
The applicant considers the proposed development is more correctly defined as mixed used across a precinct and so the provisions found in clause 8.1 of the ADCP relating to residential flat buildings do not apply and, as a consequence, asserts that the ADCP is silent on the matter of amalgamation of lots for the purposes of development.
Clause 8.1 of the ADCP is titled 'Lot amalgamation' and appears within a Section of the ADCP titled 'Residential Flat Buildings'. The respondent submits that clause 8.1 should be read in conjunction with clause 14.5 which contains more specific controls related to Five Ways.
It is common ground that clause 14.5 applies to the site, which it does by identifying 'Five Ways' as a key site and outlining the objectives and controls for its future development. The objectives are in the following terms: 1. To ensure architectural design recognises:

the strategic significance of the site within the Auburn Town Centre; and
the visual prominence of the site from public areas including the future Five Ways open space and along Auburn Road. 1. To reinforce Auburn Road as the main street of the southern section of the Auburn Town Centre. 2. To ensure the new Five Ways open space will become a focal point of the town centre. 3. To extend the active frontage along Queen Street, Harrow Road and Mary Street. 4. To ensure development is sensitive in scale and character to the town centre. 5. To improve pedestrian access and circulation within the town centre. 6. To minimise overshadowing impact to the surrounding public domain.

The introduction to clause 14.5 identifies the Five Ways site as being suited to intensification of mixed use development such as commercial and residential uses. It goes on to state that: "The development controls for this site apply in addition to the development controls presented in previous sections of this part".
In determining whether or not the provisions of clause 8.1 apply, I consider it relevant that the introduction to clause 14.5 does not state that applicable development controls include development controls in previous sections of the ADCP, but only previous sections of this part, being the part titled 'Local Centres'.
The introduction to the 'Local Centres' part of the ADCP confirms it applies to the B4 mixed use zone in which the site is located.
Additionally, the 'Local Centres' part of the ADCP contains sections that are titled the same as those found in the 'Residential Flat Buildings' part. This suggests to me that the Local Centres part is intended to be the primary reference for controls relating to Local Centres unless stated otherwise.
For example, clause 4.6 of the 'Local Centres' section refers to the 'Residential Flat Buildings' section of the ADCP in relation to the design aspects of a mixed use development that include residential flat buildings.
However, the applicant submits the most relevant development controls in relation to preferred development outcomes for the site are illustrated in Figure 5, Clause 14.5 and which is reproduced below.
Figure 5 shows an indicative building podium occupying virtually the whole of the block, an indicative building envelope that spans existing property boundaries, nominates building setbacks, identifies through-site links, the preferred location of public open space and the like.
The applicant submits that the development outcome illustrated in Figure 5 could, with the exception of a small portion of the sites at 43-45 Auburn Road, be achieved independently on each lot, and without amalgamation of sites.
Further, the applicant submits it is relevant that controls requiring site amalgamation that were a feature of the former Auburn Local Environmental Plan no longer appear in the current ALEP. For this reason, it is the applicant's submission that as the development controls do not require amalgamation, the questions to be answered when dealing with amalgamation of sites as set out in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas) are not applicable, and the principles to be applied when considering those questions as set out in Melissa Grech v Auburn Council (2004) 140 LGERA 1; [2004] NSWLEC 40 (Grech) are not engaged.
However, in the alternative, the applicant relies on correspondence found in Exhibit E that includes expressions of interest for the purchase of neighbouring properties, and property valuations prepared on behalf of the applicant, and shared with property owners as evidence of genuine attempts to purchase those properties and amalgamate the whole of the block.

Letters dated 9 March 2018 from the applicant to the owners seeking an expression of interest in the sale of their property
Letter from the owner of No.45 dated 14 March 2018 advising of their interest in potentially selling their property
Further letters dated March and April 2018 to the owners of No.43 to follow up on the expression of interest
Letter in reply from the owners of both properties dated 24 April 2018 making an offer to sell properties for $16,200,000
Letter from applicant to the owners requesting a copy of the owners valuation dated 30 April 2018, which may not have been received by the owners
Letter from the applicant dated 13 March 2019 enclosing a valuation of the property, and an offer to purchase for a nominated sum
Letters exchanged between parties dated 13 March - 8 April 2019 in relation to the offer, and the owner's consideration of the same. 1. No.1-3 Mary Street
Letters dated 9 March 2018 from the applicant to the strata owners of No.1 Mary Street seeking an expression of interest in the sale of their property
Letters and emails dated 20 March 2018, 3 April 2018, 4 April 2018, 18 and 19 April 2018 in relation to interest in sale, and advising on contact details for one of the owners
Letters and emails dated from 29 Mary to 3 October 2018 which record negotiations and an offer from the applicant for purchase of the whole site
Email dated 27 March 2019 with an offer to purchase two of the strata units on the site for a sum. 1. No.5-7 Mary Street
Letters dated 9 March 2018 from the applicant to the owner of No.5-7 Mary Street seeking an expression of interest in the sale of their property
Letter dated 22 March 2018 from the owner advising they are not prepared to sell the property, and the basis for that decision
Letter dated 20 March 2019 making an offer to purchase the property for a sum.

The respondent submits that the applicant left it to the eleventh hour to make reasonable offers for purchase only weeks before the hearing was scheduled to commence, limiting prospects of agreement, the result of which is that the development outcome in Figure 5 will not be realised and so an inferior development is likely.
In her oral evidence, the respondent's planning expert, Ms Brown, believes that failure to amalgamate the properties at Nos.1-7 Mary Street will result in a streetscape that is out of character with new development in the short to medium term, and an inferior development outcome on those sites some time in the future.
The respondent's urban design expert, Ms Roopali Pandey, considers the schematic proposal for No.43 and No.45 Auburn Road and Nos. 1-7 Mary Street to be sub optimal as the communal open space will not receive sunlight, apartments would have limited amenity, and the proposals do not include a basement layout. Further, in the case of No.43 and No.45 Auburn Road, Ms Pandey is of the opinion that the result has the potential to create a wind tunnel effect.
The respondent's Town Planning expert, Ms Brown, agrees that the nil or minor setbacks to Auburn Road and Mary Street would compromise residential amenity.
The applicant's schematic proposals were prepared by the architect, Mr Peter Smith and are found in Exhibit A. They illustrate the following: 1. No.43 and No.45 Auburn Road

Option 1: a 5-storey building with retail and commercial uses
Option 2: an 8-storey residential flat building with ground floor retail
Option 3: a 6-storey boarding house with ground floor retail. 1. Nos.1-7 Mary Street
A 13-storey residential flat building inclusive of 4-storey podium and ground floor retail.

The location of a possible connection to basement car parking at Nos. 43 and 45 Auburn Road is shown on the basement plans, and the architect, Mr Smith, identified a location in oral evidence where a connection could also be made to basement car parking under Nos.1-7 Mary Street.
The respondent asserts that the schematic proposals prepared by the applicant do not achieve a development that is consistent with the planning controls.
In oral evidence, the architect acknowledged a number of instances identified by Mr To for the respondent where solar access does not appear to comply with requirements found in the Apartment Design Guide and, in the case of the schematic proposal for Nos. 1-7 Mary Street, where the ground floor plan shows car park access that would appear to clash with the location of a lift core that does not appear on other plans.
Mr Smith considers the lack of solar access to the proposals for neighbouring sites to be a function of their southern orientation, and notes it would be a challenge to achieve the required direct solar access whether the sites are amalgamated or not.

Findings

I agree with the applicant that the questions set out in Karavellas, and the planning principle found in Grech, have their origins in a dispute in which site amalgamation was an explicit provision of the LEP to the extent that a minimum lot size applied. No such numerical control is found in the ALEP for the Five Ways site.
However it is my view that Figure 5 of the ADCP clearly implies or infers site amalgamation at the Five Ways site for the following reasons: 1. The indicative building envelope is shown overlaid and spanning across the cadastral boundaries of the Mary Street and Auburn Road properties. 2. In the case of 43 and 45 Auburn Road, the indicative building envelope occupies a small portion of the north eastern corner in a manner that would not be feasible unless it was an amalgamated entity. 3. The indicative building podium is shown continuously across the block in a manner that cannot be achieved, in my view, without amalgamation first. 4. There are only two indicative locations for vehicular access shown on Figure 5 where, for the applicant's submission at [28] to be entertained, each site would require separate vehicular access
Consequently, I consider it reasonable to ask whether a failure to amalgamate the neighbouring properties will result in isolation that would prevent development by their owners at a future date and in a manner that is consistent with the planning controls.
However, as the amalgamation of sites is implied in the ADCP through the illustration at Figure 5 and is not explicit in the ALEP, I propose to give it weight accordingly.
In Karavellas, Commissioner Tuor posed general questions at [17] to be answered when dealing with amalgamation of sites, or when a site is to be isolated through redevelopment. These questions are in the following terms: "Firstly, is amalgamation of the sites feasible? Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?"
The principle found at [51] in Grech is intended to assist in formulating an answer to whether amalgamation of sites is feasible, and consists of three parts: "Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application. Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979."
As the first step in applying the planning principle set out in Grech relates to minimum lot requirements, I note that no such minimum lot requirements apply in relation to the Five Ways site and so I move to the considering the negotiations between the owners, which are set out at [31] and do not need to be reproduced here.
In considering whether amalgamation of sites is feasible in this case, I have given weight to the following: 1. Correspondence initiated, and subsequently followed up, by the applicant in March and April 2018, and the provision of valuations sourced by the applicant to the owners of neighbouring sites which assist in establishing the bona fides of the offers made, albeit only weeks before the hearing. 2. Where owner's indicated interest, such as in the case of Nos. 1-3 Mary Street, the applicant reciprocated with continuing efforts. Where owner's declined the approach, as in Nos.5-7 Mary Street, it did not stop the applicant from making an offer in any event. 3. In relation to correspondence with the owners of No.43 and No.45 Auburn Road, I accept and agree with the applicant's submission that the offer from the owners to sell for a sum of $16,200,000 in April 2018, was a significant order of magnitude over what may be regarded as the market rate, and this could have had the effect of stifling further negotiations between the parties until early 2019.
In my view, the evidence shows that amalgamation of the adjoining sites is not feasible by reason of agreement not being reached, and so I next consider the second question posed by Commissioner Tuor in Karavellas which asks whether orderly and economic use and development of the separate sites is achieved if amalgamation is not feasible.
Commissioner Tuor provides further assistance in addressing this question in Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189 (Cornerstone) at [34] with the following: "• …the key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. • To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. • The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments."
As in Cornerstone, the question before the Court is not to determine a fully developed design for the neighbouring sites, but rather to be satisfied that the development proposed by the applicant will not prejudice reasonable development on those neighbouring sites of appropriate urban form and an acceptable level of amenity.
I note that the schematic proposals prepared by the applicant for adjoining sites assumes that the owners of those sites might themselves amalgamate. This is especially relevant to Nos. 43 and 45 Auburn Road given the narrow terrace-like form of the existing properties, and is less likely to Nos.5-7 Mary Street given reasons provided in their letter dated 22 March 2018.
In considering whether adjoining sites can be developed independently of the application before the Court, it is relevant in my view that all of the adjoining properties are either corner sites or, in the case of 1-3 Mary Street, enjoy two street frontages by virtue of the 'L' shaped block, ensuring the sites are desirable locations and providing the owners with flexibility in planning any future development.
Furthermore, new through-site links such as that formed by Queen Lane and Mary Lane effectively increases the frontage available at street level for retail or commercial uses in any future development at Nos.1-7 Mary Street, which may have the effect of increasing the value of those properties and the likelihood of economic and orderly development in the future.
Alternatively the architect, on questioning from Mr To for the respondent, was able to extemporise on modifications that could be made to Building A in the event that agreement is reached with the owners of Nos. 43 and 45 Auburn Road and which the respondent considers to be preferable.
Whether the applicant reaches agreement with some or all of the owners of adjoining properties in the future, the application before the Court and in its current form does not appear to inhibit future development of all of the adjoining sites on the block.
Notwithstanding the departure from the development outcome illustrated in Figure 5 of the ADCP, it is my view on the basis of all the evidence before me, that the neighbouring sites are not prevented from being developed by their owners at a future date and in a manner that is consistent with the planning controls, having an appropriate urban form and with an acceptable level of amenity.

Stormwater provision and on-site detention

To the north of the site, located across Queen Street and standing between the site and the railway line is the Auburn Central Development (Auburn Central). The development is built on land that is at a natural low point in the topography of Auburn and which is subject to flooding during extreme weather events.
At the time of its development, I am advised that Council and the developer agreed that a large detention basin would be provided in the basement of Auburn Central, with an outlet that discharges under the railway line to lower contours beyond.
It is common ground that the detention basin is protected by a positive covenant in favour of Auburn Council who is named as the relevant authority. It is the view of Council's stormwater expert, Mr Bala Sundarson, that the detention basin is more correctly identified as flood storage provided at the time of the development of Auburn Central, and it should not be considered a regional basin for the entire catchment.
In deference to Mr Sundarson's advice, I will refer to the detention basin under Auburn Central more generically as the Auburn Central water storage (water storage).
During the site view, the Court was shown the location of the water storage, the extent of which is highlighted in Exhibit K. The Court was able to view the interior of the water storage chamber through a hole in the blockwork wall which forms part of the perimeter barrier to the basement car park below Auburn Central.
It was acknowledged by those present at the site view that the hole through which the water storage chamber could be viewed represents a breach through which water would flow, expelling stormwater in to the basement car parking of Auburn Central, and that repairs may be required.
The Court was also directed to the location of the culvert (Ex H) which is under Harrow Road and Queen Street, before it turns in to the basement of Auburn Central.
In their oral evidence, the experts initially disagreed on the capacity of the existing water storage. Mr Kozarovski states in the joint expert report (Ex 5) that the capacity is 5800m3, which equates to the volume required by Council's site storage requirements of 325 m3/ha, as set out in Table 3, clause 5.2 of the ADCP and when a catchment area of around 18ha is assumed.
On the eve of the hearing, Mr Sundarson sourced 'as executed' plans of the water storage which satisfied both experts that the capacity is, in fact, in the order of 3400m3.
To assist in determining the required storage capacity at the time, a report prepared by Warren Smith and Partners and dated July 2002 (Ex J) provides guidance as to the underlying assumptions on which the designer's relied.
Exhibit J tells us that Warren Smith and Partners used a factor of between 55% - 59% of the catchment being impervious surface when determining the required capacity. During his oral evidence, Mr Kozarovski advised that he relied on the same proportion of impervious surface assumed by Warren Smith and Partners in 2002, when undertaking recent modelling, despite the passage of time which may have altered the amount.
Mr Sundarson acknowledged in his oral evidence that the proposed development does not propose any additional impervious surface on top of the amount currently agreed on site, being 100%.
However, the applicant submits that due to the close proximity to, and capacity of, the Auburn water storage, it is reasonable for the proposed development to make a direct connection into the culvert instead of providing for detention onsite.
Mr Kozarovski, for the applicant, states in Annexure A of the joint export report, that there is no need for an onsite detention for the site because the objectives of Council's OSD policy have been achieved for the entire catchment, including the area of the site, and that an OSD would not result in any reduction of flow downstream of the water storage and it would be a waste of resources.
Section 5.0 the ADCP requires on-site detention. The objective of which is: "To ensure that through the on-site detention (OSD) of stormwater, discharge is controlled thereby ensuring development does not increase the risk of downstream flooding of roads and properties, or erosion of unstable waterways."
Modelling prepared by Mr Kozarovski shows no increase in the rate of discharge from the water storage as a result of this connection, and so poses no risk of downstream flooding or roads and properties, according to the applicant.
Mr Kozarovski considers an OSD on the subject site would be ineffective in a 1:100 year event because an OSD tank would likely overflow at a time when the Auburn water storage also reached its peak capacity.
Further, the applicant's stormwater expert asserts that due to the limitations of existing pits and lintels in Queen Street to dispose of stormwater generated by overland flow, the proposed direct connection into the culvert below Queen Street will reduce the level of flooding in the street during a 1:100 year flood event by 60mm.
Despite this, it is common ground that the basement and ground floor of the Village Tavern will be inundated, as I am told is the case now, in the event of a 1:100 year flood as shown in Exhibit B, whether or not on-site detention is provided. Whether or not consent is granted, the Court trusts that appropriate safety measures are in place to avoid risks to patrons, workers or others in this event.
Mr Kozarovski provides specifications for flood related controls in Annexure A of the joint expert report, including a dimension for freeboard, flood compatible materials and the like.
In essence, the applicant submits that a small additional volume of water, estimated to be in the order of 200m3 generated by the proposed development can be accommodated by the existing water storage under Auburn Central without any impact on roads or properties in the vicinity or downstream.

Findings

I have considered the particular circumstances of the topography of the Five Ways site and the localised flooding that occurs at the junction of Queen Street and Harrow Road in extreme weather events. I am satisfied from the evidence before me that: 1. there is not likely to have been a significant change in impervious surface across the catchment, and so I consider it unlikely that the factors informing the capacity and function of the water storage have changed; and 2. there is no change in the proportion of impervious surface on the site, and so it is unlikely to be any change in the volume of stormwater arising from the proposed development; and 3. the flooding of Queen Street and Harrow Road is due to overland flow from the wider catchment, and is not a result of stormwater expelled from the site. As such, flooding can be expected to continue, and will only benefit from the approach proposed, based on modelling provided by the applicant.
In my view, it appears preferable for the pits and lintels in Queen Street that are already strained during extreme weather events from overland flow originating from a catchment of around 18ha in size to not be further strained by overland stormwater flow from an OSD on this site, if a direct connection to the culvert can be made that effectively bypasses those pits and lintels.
From the evidence before me, a direct subterranean connection from the site, to the culvert forming the inflow to the detention basin is likely to achieve the objectives in the ADCP, and may avoid further exacerbating future flooding by reducing the maximum flood level by 60mm.

Street wall height

The respondent asserts that a portion of the interface between the proposed development and surrounding streets including Harrow Road and Auburn Road consists of a section where the street wall height is 5-storeys and so will not provide a built form at a human scale, will not deliver a pedestrian friendly space and will fail to preserve the character of Auburn Road.
The amended plans indicate that the 5-storey buildings occur at the corner of Auburn Road and the public open space addressing the Five Ways intersection, and at the corner of Harrow Road and at the entrance to the proposed new laneways called 'Queen Lane' and 'Auburn Lane' on the plans.
The architect, in his oral evidence, described the consideration involved in determining what he considers to be an appropriate street wall height to the perimeter of the site. His description commenced by first reflecting the height of the Auburn Ambulance station at 54 Queen Street, a local heritage item located opposite the Village Tavern which retains a 2-storey street wall height. He then considered the existing and current development to Harrow Road and Mary Street, and what he considered to be an appropriate bulk and scale of development marking new laneway connections.
In the joint expert report, Mr Smith outlines a proportional basis for enclosure around public squares, arguing that a ratio of 1:1 of building height to open space width is considered good practice. He then applies this approach to enclosure of the street.
Mr Smith relies on published research from Danish urbanist, Jan Gehl which is described in a diagram contained in the joint expert report depicting a sightline from across the street from the development using a 50 degree angle of incline overlaid on a 2-storey podium, and 5-storey podium. The result of the diagram purports to show a 5-storey podium dominating a pedestrian's sightline, with the tower form as a minor element when viewed over the parapet of the podium.
Ms Panney prefers to rely on a 1:3 ratio, and recommends a 2-storey street wall height to Harrow Road, and a 3-storey height to Auburn Road.
Ms Panney also provides diagrams in the joint expert report titled Figure 1 and Figure 2, and is of the strong view that a lower 2-storey podium achieves a greater human scale and does not accept Mr Smith's position that, from an aspect taken from across the street, a lower podium would merely provide greater view to the lower levels of a tower form located over.
In the joint expert report, Ms Panney relies on the published work of Professor Bill Hillier to caution that the proposed development risks providing indiscriminate enclosed space, and refers to a Draft Auburn and Lidcombe Town Centre Strategy dated December 2016 to support a view that the preferred deserved future character is suburban in feel achieved through generally low-scale built form.
The applicant submits an inventory of developments said to be constructed, approved, or currently awaiting development assessment in the vicinity that purport to show street frontage exceeding 2-3 storeys in height.
Drawing DD-A-835 (Ex A) also notes the existing street wall height to the north of the site across Queen Street is 9-storeys and 12-storeys in height, and Nos. 1-5 Harrow Road is an existing building of 5-storeys in height, located diagonally opposite where the applicant proposes a 5-storey street wall height on Harrow Road.
According to the applicant, the height of the development facing Auburn Road also carries with it consequences for the future development of the properties at Nos. 43 and 45 Auburn Road. In essence, should the proposed development adopt the 3-storey street frontage recommended by Ms Panney, the applicant submits that it then follows that this would also apply, to the detriment of the owners, to Nos.43 and 45 Auburn Road.
While this is not determinative of the matter, given the properties at Nos.43 and 45 Auburn Road, when viewed as an amalgamated site, form a corner site at the intersection of Auburn Road and Mary Street, I note that the properties could be said to form a gateway to the more urban character of the Five Ways site when viewed from the southern end of Auburn Road.
Performance criteria 2 (P2) of the ADCP appears relevant in this context: "Ensure key landmark corner sites are developed to ensure distinctive and unique design of buildings that will form gateways and entrance statements to commercial centres"
Further, development control 4 (D4) in section 4.1 of the ADCP encourages the design of buildings on corner sites to emphasise the corner as a focal point.
With these provisions of the ADCP in mind, I consider the potential future development of Nos. 43 and 45 Auburn Road to be most likely of a scale that is greater than 3 storeys, either as part of the proposed development or independently, and so likely to integrate well with a higher form on the subject site.

Findings

The objectives of streetscape and urban form as described in section 3.0 the ADCP, are as follows: "a. To ensure development integrates well with the locality and respects the streetscape, built form and character of the area. b. To encourage innovative development which is both functional and attractive in its context."
I accept and agree with the applicant's submission that the manner in which the street wall height and setbacks are designed would appear to satisfy the performance criteria found in section 3.2 Setbacks as follows: "P1 the setback of new buildings is generally consistent with the setback of adjoining buildings P2 the built edge of development at the street frontage contributes to a sense of enclosure and scale within the centre P3 Building design minimises building bulk within streetscape through the use of setbacks, architectural features and variations in materials and colour palette."
Clause 14.2 provides guidance on setbacks specific to the Five Ways site. As shown in Figure 2, this permits built form to build to the boundary.
Clause 14.3, Figure 3 requires that the full perimeter of development on the Five Ways site include active frontages.
Achieving the aims of the current ADCP as stated then requires a development at the Five Ways site to provide an interface with surrounding streets that balances respect for the streetscape; is innovative, functional and attractive while providing a sense of enclosure that minimises its bulk through architectural features and variations in materials and colour.
I prefer the careful articulation of Mr Smith's methodical logic in deciding on the form of the interface with the street. In my view, he was able to describe a highly contextual response based on both the existing urban form and topography when compared with Council's urban design expert who, in my view, was advocating for the Court to act in anticipation of a future development control that may or may not result from a draft strategy being prepared now, according to Ms Panney.
The Court was ultimately unable to reconcile Ms Panney's assertions that the desired future character for the Auburn Town Centre is to conserve a suburban feel and low scale built form with the relevant B4 Mixed Use zone objectives at [11] and development standards found in the ALEP including a 49m height limit, and FSR of 5:1. Consequently I have given Ms Panney's evidence lesser weight.
In the absence of a control that would provide guidance on the number of storeys considered appropriate for the street wall height on the Five Ways site, the applicant has been deliberate in the location, height and material choice of the street interface.
From all the evidence before me, I am satisfied that where a 5-storey street wall height is located, it appropriately integrates with adjacent development that varies from an older 2 and 3-storey character on Auburn Road, and more recently approved development in the immediate vicinity that is characterised by zero setbacks and which commonly rises between 5- and 12-storeys in height on Queen Street and Harrow Road.

Conclusion

The parties agree that the indicative development layout depicted in Figure 5, clause 14.5 of the ADCP illustrates the intended development outcome at the Five Ways site. In essence, the dispute centres on whether a departure from the indicative development layout is an acceptable development outcome for Auburn.
Development control D1, clause 14.5 makes the relevance of Figure 5 explicit in the following terms: "Development should be in accordance with Figure 5".
The application before the Court is clearly not in accordance with the indicative development layout depicted in Figure 5, clause 14.5 of the ADCP. There appear to be three primary departures from the indicative layout. These are: 1. Not all sites within the block are amalgamated, resulting in tower forms that are located further north on the block than intended. 2. The siting and orientation of multiple tower forms independently address street frontages instead of the more singular indicative tower envelope suggested in Figure 5. 3. Where podium forms are shown in the application, they provide for through-site links that are open to the sky in the form of three new laneways and are varied in their materials, scale and colour, in contrast to the indicative building podium in Figure 5 that appears unbroken and lacking in opportunities for access to natural daylight and ventilation.
For the reasons I have previously given, I regard the departures from the indicative development layout to have arisen from highly contextual circumstances.
It is also reasonable to view the indicative development layout in Figure 5 as just that, an indicative layout found in the ADCP and that is intended to be read in conjunction with clause 14.5 more generally. In my view this is supported by a close reading of the indicative building envelope shown in Figure 5 which reveals a continuous tower form spanning the entire length of the block facing Harrow Road of more than 100m in length, and presumably at or around 49m in height.
Presumably, an application that included such a tower form would be required to evidence that it meets the objectives found in clause 14.5, including: "… e. to ensure development is sensitive in scale and character to the town centre … g. to minimise overshadowing impact to the surrounding public domain"
Further, such an application would presumably be found to breach the development control which, at D6 seeks to limit the maximum building dimensions to 60m.
In circumstances that were similar, but not the same as found in this matter, Molesworth AJ provides guidance on the circumstances where adherence to indicative amalgamation plans is required in 680-682 Kingsway Caringbah Pty Ltd v Sutherland Shire Council [2017] NSWLEC 99: "[111]… Whereas it is preferable for a (presumably carefully formulated) DCP amalgamation plan to be given significant weight in order to reinforce the desirability of orderly planning based on a strategic assessment of the needs of a district or locality, the Court has carefully considered whether the preferred amalgamation pattern here should be complied with irrespective of the material changed circumstances that have arisen in the precinct. [114]… The DCP amalgamation plan should not be slavishly followed without regard to the practical outcomes of these plans and the proper consideration of the end that those plans aim to achieve. Moreover, the amalgamation plans must be understood in the overarching context of the regulatory regime created by the EPA Act and relevant environmental planning instruments."
To the extent that the application varies from the indicative development layout in Figure 5, it may be said that the development application does not comply with provisions of the ADCP. In circumstances where an application does not comply with those standards, s 4.15(3A) of the EPA Act requires that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: … (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development …
The development application before the Court does not depart from the indicative development layout through wilful disregard for the objectives, performance criteria or development controls found in the ADCP relating to the Five Ways site.
Instead the applicant, through their architect, has satisfied the Court that the proposal may even represent a superior development outcome to the indicative development layout found in the ADCP, and may also improve the development potential of adjoining sites by virtue of the departure from the indicative development layout, in particular with the addition of Queen Lane and Mary Lane which may act to catalyse development to those sites on Mary Street.

Directions

For the reasons already stated, I propose to grant consent to the development. However as the parties require my findings in order to settle an agreed set of conditions, the Court directs: 1. That Drawing A-104 be updated to remove erroneous information that purports to show vehicular access to the basement car parking, as identified during the hearing. 2. The Council is directed to prepare the modified conditions of consent to reflect my reasons for judgment, including any amendments that flow from my finding that an OSD tank is not required and any drawings that may require amendment as a result and provide them to the Court within 14 days. 3. In the event that the parties cannot agree the terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue.

Addendum made 13 August 2019

In accordance with the terms of my directions at [117], the parties conferred with a view to settling the final form of the conditions of consent. While a majority of the conditions were agreed, the parties sought for the matter to be relisted before me on 31 July 2019 for oral submissions on those conditions that remained in dispute.
The conditions that remained in dispute were as follows: 1. Condition 2A and condition 135, which relate to urban design considerations. 2. Condition 85 and condition 157, which relate to stormwater drainage provisions.

Condition 2A and condition 135

Condition 2A seeks to require amendment to the architectural drawings in accordance with the Respondent's preferred street wall height of 3 storeys and so appears to have been prepared prior to my finding at [105] that a five-storey street wall height, where shown, is appropriate. For the reasons contained in my judgment at [92]-[96], I do not consider this condition to be relevant or necessary.
Condition 135 seeks to require amendment to the architectural drawings to create visual interest to the southern elevation blank wall of Tower A. Reference to drawing DD-A-202 indicates that a blank wall, containing four openings, extends to level 3, 4 and 5. For the reasons contained in my judgment at [96], and in consideration of the articulation shown to the southern elevation of Tower A on Levels 6-13, I do not consider this condition to be relevant or necessary.

Condition 85 and condition 157

While the applicant initially submitted the provisions contained in condition 84 were sufficient to verify that all hydraulic works would comply with the Flood Assessment report, and have no adverse impact on flood levels and/or adjoining properties, the parties subsequently agreed that conditions 85 and 157 may be amended to require supporting documents to be submitted to, and approved by the Certifying Authority.
Furthermore, the parties agreed that the schedule of drawings listed in condition 2 would be amended to include reference to relevant stormwater drainage plans.
The amended conditions of consent, and final amended plans were filed on 2 August 2019. I am satisfied that the amended plans respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans.
Accordingly the Court orders that: 1. The appeal is upheld. 2. Consent is granted to DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail / commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn is approved, subject to the conditions in Annexure 'A'. 3. All exhibits are returned, except for Exhibits J and 9.

Amendments 13 August 2019 - See final orders in addendum at [118] to [125] 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 August 2019

(2004) 139 LGERA 245

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Judgment (17 paragraphs)

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Cases Cited (6)