Adouni and Raad Pty Ltd v Georges River Council

The onsite view and public submissions

1. In accordance with its usual practice, the proceedings commenced with an onsite view at which the Court heard public submissions from, or on behalf of residents at No. 2 Weeney Street, Nos. 1 and 2/32 Carroll Street, and No. 30 Carroll Street. Exhibit 5 contains agreed notes of the public submissions heard at the onsite view.
2. In the company of the parties, and the experts, the Court was also taken to view the medium density development located at Nos. 125-137 Rocky Point Road, and the residential apartment development in the R4 zone.
3. The Council's bundle of documents, marked Exhibit 2, contains written submissions responsive to the original application and amended application.

The contentions

1. The parties are agreed that the amended plans resolve a number of the contentions contained in the Amended Statement of Facts and Contentions (Exhibit 1). Those contentions remaining may be summarised as follows:

• Contention 1 - The proposed development exceeds the maximum height of buildings permitted by cl 4.3 of the KLEP
• Contention 2 - The site fails to achieve the minimum allotment size of 1000m2 permitted by cl 4.1A of the KLEP
• Contention 3 - The bulk and scale of the proposed development is excessive given the proposed nil setback to the northern boundary
• Contention 4 - The resulting site isolation of Nos. 139 and 141 Rocky Point Road is unacceptable
• Contention 5 - The proposed development exceeds the maximum site coverage in the Kogarah Development Control Plan 2013 (KDCP)
• Contention 6 - The proposed development exceeds the maximum impervious area in the KDCP
• Contention 7 - The proposed development does not demonstrate adequate regard has been given to the Design Quality Principles in the State Environmental Planning Policy No 65 - Design Quality in Residential Apartment Development (SEPP 65)
• Contention 8 - The proposed development does not demonstrate adequate regard has been given to the objectives in the Apartment Design Guide (ADG)
• Contention 11 - The proposed excavation is excessive

1. However as the proceedings evolved, natural correlations became evident in submissions that broadly addressed the following, and which I propose to adopt:

• The proposed development exceeds the maximum height of buildings
• The proposed development fails to achieve the minimum allotment size and isolates an adjoining site
• Bulk, form, scale and provisions of the SEPP 65 and ADG
• Site Coverage and impervious area

1. As the contentions relate primarily to town planning, the Court was assisted by Mr Simon Smith, for the Respondent, and Mr Rod Logan for the Applicant who conferred in the preparation of the joint expert report at Exhibit 2.

Statutory framework

1. As the proposed development is a residential flat building, the provisions of the SEPP 65 apply.
2. Clause 6A of the SEPP 65 provides that the objectives, design criteria and design guidance contained in Part 3 and 4 of the ADG, prevail over any provisions in a the KDCP to the extent they are inconsistent with the following: 1. visual privacy, 2. solar and daylight access, 3. common circulation and spaces, 4. apartment size and layout, 5. ceiling heights, 6. private open space and balconies, 7. natural ventilation, 8. storage.
3. Clause 28 of the SEPP 65 contains matters for consideration when determining development applications: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
4. Clause 30 contains provisions that, if met, cannot be used to refuse an application: 30 Standards that cannot be used as grounds to refuse development consent or modification of development consent (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide.
5. Further, at subcl 30(2), design quality principles, objectives and design criteria in the ADG must be regarded: (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
6. Relatedly, for development applications referrable to SEPP 65, cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) requires that a qualified designer, being defined at cl 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development.
7. Furthermore, the attestation must address the design quality principles in Schedule 1 to the SEPP 65, and demonstrate, in terms of the ADG, how the objectives in Parts 3 and 4 of that guide have been achieved. I am satisfied that the statement provided by Mr Nick Katris at Exhibit N, Tab 4 is in a complying form.
8. As the site has a frontage to Rocky Point Road, being a classified road, the provisions of State Environmental Planning Policy (Infrastructure) 2007 apply. However, the parties are agreed that the matters the Court must consider, at cll 101 and 102 are able to be satisfied by conditions of consent contained in Exhibit 3.
9. Clause 4.1A of the KLEP establishes the minimum allotment size for multi dwelling housing, residential flat buildings and seniors housing, and where the objective of the control is: The objective of this clause is to achieve planned residential density in certain zones.
10. Part C2 of the Kogarah Development Control Plan 2013 (KDCP) includes provisions for Medium Density development that are addressed in consideration of the contentions that follow.
11. Broadly speaking, the parties are agreed that the provisions of the KDCP, given effect on 8 February 2013, pre-date the decision by the Respondent to re-zone the land between Jubilee Avenue and Weeney Street in May 2017.
12. According to the Respondent, the rezoning of the subject site to the R3 zone merely resulted in a transfer of the relevant provisions from Part C1 of the KDCP, Low Density housing, to the provisions of Part C2 of the KDCP, Medium density housing. Furthermore, even though some of the provisions in Part C2 are now set aside by the KLEP or ADG, the provisions that are not set aside still apply, and this is made clear in the 'Interim Policy Georges River Development Control Plan 2020' (Interim Policy).
13. The Interim Policy was endorsed in June 2019, with effect from 22 July 2019 following the amalgamation of Kogarah City Council and Hurstville City Council in May 2016, the Georges River Council.
14. The aim of the Interim Policy is stated in the following terms: "The aim of the Interim Policy is to set a consistent approach for the assessment of residential development within the Georges River LGA, until such a time as a comprehensive DCP is prepared and implemented" (Exhibit 4, Folio 426)
15. Mr Pickles SC, counsel for the Applicant, submits that regardless of a decision to merge local authorities to form the Georges River Council under the Local Government Act 1993, the environmental planning instruments applicable in the local government area are given effect by operation of the EPA Act.
16. Furthermore, the Applicant submits that so much of the KDCP expressly excludes application to the subject site as to suggest the provisions are wholly out of date, and that development standards in the SEPP 65 or KLEP are preferred, as well as the objectives, guidance and standards in the ADG. For example: 1. S1.2 Site amalgamation requirements nominate specific sites that does not include the subject site. 2. S2 provides for a number of precincts zoned R3 - Medium Density Residential where specific planning controls have been developed that does not include the subject site. 3. S4 provides minimum site and density requirements for dwelling types referrable to Appendix 4 of the KDCP, and Schedule 1 of the KLEP that does not include the subject site 4. S5.2 stipulates maximum building heights at control (1) relevant to residential apartment buildings with four residential levels being 14m. The height applicable to the subject site in cl 4.3 of the KLEP is 15m. 5. S5.2, at (4), stipulates specific sites permitting residential flat buildings that does not include the subject site

The proposed development exceeds the maximum height of buildings standard

1. The parties are agreed that the proposed development exceeds the height standard of 15m set out in cl 4.3 of the KLEP and the Applicant relies upon a written request pursuant to cl 4.6 of the KLEP to justify the contravention of the height standard.
2. The objectives of the height standard, at cl 4.3 of the KLEP are in the following terms: 1. to establish the maximum height for buildings, 2. to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas, 3. to provide appropriate scale and intensity of development through height controls.
3. Mr Smith is of the opinion that the original written request, submitted with the Class 1 Application, failed to accurately identify the maximum extent of the exceedance measured at the lift overrun. However the Applicant now relies on a revised written request (Exhibit J) that identifies the exceedance as being 1.1m above the 15m height limit, which is a dimension accepted by the Respondent.
4. The Respondent submits that any justification of the contravention of the height control must address the fact that the lift overrun is also a consequence of the lift providing access to the topmost apartment, Unit 420.
5. While Unit 420 itself is located below the maximum permissible height, Mr Smith considers the apartment to present excessive bulk and scale at the most sensitive location of Rocky Point Road adjoining the R2 zone and so fails to achieve the objective of the height standard to provide appropriate scale and intensity of development.
6. As the written request fails to address the bulk and scale of Unit 420, the Respondent submits that the Court cannot form an opinion of satisfaction that the Applicant has adequately addressed the sufficient environmental planning grounds required by cl 4.6(3)(b) and the appeal should be refused on that basis.
7. Clause 4.6 of the KLEP 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 KLEP, but that power is subject to conditions.
8. 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) 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)).
9. 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.
10. Clause 4.6(4)(b) 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 Land and Environment Court Act 1979 (LEC Act) but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]).
11. 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 KLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard because: 1. The height of the building generally conforms to that permitted by the height standard, with the exceedance being limited to the lift over run, as evidenced by the height plane diagram 2. The additional shadow cast by the lift overrun has minimal impact on adjoining properties, being limited to No. 2 Weeney Street and No. 147 Rocky Point Road and any privacy impacts derived from the development do not originate in the exceedance, but in the complying aspects of the development which may be expected at the interface of zones. As a result, the proposal achieves the appropriate scale and intensity envisaged by the height standard.
12. 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. Enforcing strict compliance would impair access to the rooftop communal open space and Unit 420, both being within the allowable height limit.
13. 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.
14. In forming this conclusion I am assisted by the parties who are agreed that the first objective of the height standard is declaratory of its purpose. I also accept the Applicant's position that the objective for appropriate scale and intensity is achieved by virtue of the building, other than for the footprint of the lift overrun, being within the permitted height control.
15. Unit 420 is wholly within the height standard, and while lift access to a rooftop apartment is desirable, universal access to a communal space is a rightful expectation of future occupants and their guests who may have a disability or be mobility-impaired, and so can be said to be a necessity. Furthermore, the lift overrun would continue to exceed the height standard even in the event that Unit 420 was deleted from the application as it services the roof top communal open space.
16. 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.
17. 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]).
18. I accept the Applicant's submission that to consider the bulk and scale of Unit 420, which is wholly compliant with the height standard, would be to consider aspects of the development that are extraneous to the particular focus on the aspect of the development that contravenes the height standard.
19. The written request relies on the following environmental planning grounds to justify contravening the development standard: 1. The proposed development is of a form and scale that is consistent with the future planning strategy for the locality, 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 KDCP. 3. The proposed development complies with the statutory height limit, including those areas at the perimeter of the building form, with the exception of the lift over run. The exceedance does not impose significant overshadowing, 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.
20. 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, the development complies with the height standard and does not impose adverse environmental impacts on adjoining properties.
21. While public submissions assert adverse privacy impacts resulting from the development, the exceedance the subject of the written request, being 1.1m of lift overrun, does not of itself impose such impacts and I am satisfied that the public interest test in cl 4.6(4)(a)(ii) is evidenced by conformity with the zone objectives at [5], and the objective of the height standard at [23]. Furthermore, as the exceedance is limited to the 1.1m lift overrun, 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 proposed development fails to achieve the minimum allotment size and isolates an adjoining site

1. The parties agree that the contentions related to minimum lot size and site isolation are intimately related, and so I propose to consider these contentions in sequence.
2. It is agreed between the parties that the site fails to achieve compliance with the minimum lot size set out in cl 4.1A of the KLEP of 1000m2, and as the site has a total area of 999m2, the extent of the non-compliance is 1m2.
3. According to Mr Smith, the particular numerical non-compliance is not determinative, but is instead indicative of a site that has failed to amalgamate with the adjoining sites at Nos. 139 and 141 Rocky Point Road, and so compromises the orderly and economic development of those sites through site isolation.
4. Furthermore, the full width basement on a site that fails to achieve the minimum lot size for residential apartment development has the effect of limiting any flexibility in building siting, layout and design. The result is an inappropriate and abrupt transition in scale to neighbouring properties.
5. Mr Smith prefers the transition achieved at Nos. 125-137 Rocky Point Road, particularly the stepping down from the 4-storey medium density development, to the lower townhouse form which adjoins the former R2 zone. Such a transition is achievable on larger sites that are the result of site consolidation.
6. The Applicant considers the extent of the non-compliance to be trivial, and except for the exceedance in height at the lift over run, the proposed development achieves or exceeds development standards in the KLEP, and the ADG which indicates the suitability of the development for the site notwithstanding the minor shortfall in site area.
7. Additionally, if it was Council's intent to promote site consolidation when preparing its Planning Proposal (Exhibit 4, Tab 4), it is reasonable to expect that the minimum lot size would have been set at something more than 1000m2, given the site area common to properties between Jubilee Avenue and Weeney Street that were the subject of the re-zoning.
8. Furthermore, the full width basement that is the focus of Mr Smith's concern is directly responsive to the advice of the Design Review Panel (DRP) (Exhibit B, Annexure 4) which recommended the removal of a 6m setback to the northern boundary in favour of a 'nil setback', and the extension of the carpark to the east to align with the front setback.
9. The Applicant submits that the provisions at cl 4.1A are a development standard subject to variation by a written request prepared in accordance with cl 4.6 of the KLEP to justify the contravention of the minimum allotment standard.
10. In support of the proposal, the written request states that, for the following reasons, compliance with the development standard found in cl 4.1A of the KLEP, re-produced at [23] would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard because: 1. The variation of 1m2 would result in a loss of FSR of 1.5m2 which would have no resultant impact on achieving the overall yield permitted by the controls, and planned for the site. 2. Allowing the site to be developed independently of the adjoining land does not frustrate balanced growth in density in the locality. Development on adjoining land would be possible to a comparable size, and similar density and scale. 3. As the variation represents 0.1% of the overall site area, it is unlikely that the variation in development density would be perceptible
11. The written request also submits that the underlying objective or purpose would be defeated or thwarted if strict compliance was required, because: 1. The underlying objective of the standard is related to the provision of appropriately dense multi-unit development on land zoned for that purpose. 2. Enforcing strict compliance would frustrate provision of additional housing in the locality despite the lot size being capable of supporting an appropriately scaled and designed development that is consistent with similarly scaled development in the locality.
12. I am satisfied for the reasons argued in the written request that compliance with the development standard would be unreasonable or unnecessary as the proposal achieves the planned residential density for the R3 zone in a manner that is otherwise complying notwithstanding the minor non-compliance. Firstly, the proposal complies with the FSR standard at cl 4.4 of the KLEP and, other than for the lift overrun, complies with the height standard.
13. Secondly, the minor quantum of non-conformance results in a reduction of FSR of only 1.5m2 which is itself so imperceptible, and inconsequential to the yield intended for the site that the proposal can be said to achieve the objective of cl 4.1A.
14. I am also satisfied that to require strict compliance would, in my view, thwart the objective underlying cl 4.1A as the proposal demonstrates that a residential flat building can be accommodated on the site, and in a manner that is consistent with the advice issued by the DRP and being of a scale that is consistent with existing medium density development in the immediate vicinity.
15. Next, the written request addresses the environmental planning grounds on which the proposed development seeks to justify contravention of the development standard. The written request relies on the following environmental planning grounds to justify contravening the development standard: 1. The proposed development is of a form and scale that is consistent with the future planning strategy for the locality, 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 KDCP. 3. Strict compliance with the minimum lot size standard can only be achieved by consolidation with land immediately to the north, which has been acquired by the owner of land adjoining that site further to the north. That owner has expressly stated that their intention is to separately redevelop that parcel with their existing holdings to the north. Therefore, lot consolidation to achieve a complying minimum lot size is not possible.
16. I accept that the form and scale of the proposed development is consistent with the future planning strategy for the area, as contained in the Kogarah 2031 Housing Strategy. I also accept that the dwellings that are demonstrated to be achievable on the site are capable of complying, or substantially complying with the ADG and KDCP.
17. Finally I also accept that there are particular circumstances as to the ownership of the adjoining land that provide a sound basis to justify the contravention of the standard. The adjoining land at 139-141 Rocky Point Road is the sole site in the R3 zone with which the Applicant could consolidate so as to realise the development in strict compliance with the minimum lot size standard. As that is in the ownership of the landowner to the north of the adjoining site, and acquisition is not possible, I consider there to be sufficient environmental planning grounds to justify the contravention of the minimum lot size standard so as to permit the orderly and economic development envisaged in the R3 zone.
18. I am satisfied that the written request has adequately addressed those matters at cl 4.6(4)(a)(i) and cl4.6(4)(a)(ii) in relation to the justification for contravention of cl 4.1A of the KLEP in relation to the minimum lot size, and so now consider the related contention with respect to the isolation of the site at Nos. 139-141 Rocky Point Road.

Site isolation

1. It is agreed between the parties that the properties at Nos. 139-141 Rocky Point Road are in the same ownership as the medium density development at 125-137 Rocky Point Road, which is not a strata title but is held in sole ownership (Exhibit M, Annexure D, E, F, G and H).
2. To the Applicant, the like ownership of properties that are contiguous cannot result in one being described as isolated. The owner of Nos. 125-137 Rocky Point Road can simply choose to develop the sites at Nos. 139-141 Rocky Point Road, and connect a basement carpark to the existing common basement car park on the adjoining site at Nos. 125-137 Rocky Point Road to utilise the existing access to Rocky Point Road.
3. However, Mr Smith is of the view that the Applicant has failed to undertake sufficient negotiations with the owner of Nos. 139-141 Rocky Point Road to satisfy the Court by reference to the planning principle in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas), or in accordance with the requirements of Part C2, section 1.1 of the KDCP which stipulates site isolation requirements in circumstances where a site cannot satisfy the minimum lot requirements.
4. In summary, those provisions at Part C2, section 1.1 of the KDCP require: 1. Correspondence indicating negotiations between the owners prior to the lodgement of the development application or; 2. evidence of reasonable attempts to incorporate the adjoining site(s), including documented negotiations, or; 3. in support of reasonable attempts to facilitate amalgamation, the applicant should prepare a schematic design of how site(s) may be developed.
5. The Respondent submits that the Applicant has failed to secure an independent valuation of the adjoining site, and provides no evidence of an offer to purchase the site from its owner as required by the note contained in Part C2, section 1.1 of the KDCP which states: "that 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."
6. In his oral evidence, Mr Logan accepts that his affidavit (Exhibit L) provides evidence of an approach to the adjoining owner in relation to providing vehicular access only from the subject site, but does not record any discussion on purchasing the adjoining sites for the purposes of amalgamation.
7. Nonetheless, the Applicant prepared Schematic designs marked Exhibit F which demonstrate potential future development that generally complies with the provisions of the KLEP and ADG, with vehicular access from Weeney Street made possible via an opening in the proposed basement of the subject site.
8. A further alternative available to the owner of the sites at Nos. 125-141 Rocky Point Road, is to redevelop the southern portion of the medium density development at Nos. 125-137 in conjunction with the sites at Nos. 139-141 to realise the benefit of the R3 zone that was gazetted in the KLEP sometime after the completion of the medium density development.
9. Mr Smith considers this alternative to be uneconomic as the medium density development at Nos. 125-137 Rocky Point Road appears to have been built around the year 2000 and so it may not be feasible to redevelop such a recent development.
10. Furthermore, the schematic plans at Exhibit F merely replicate non-conformances evident in the development the subject of the development application, fails to include shadow diagrams and fails to demonstrate complying vehicular circulation in the adjoining basements.

Findings

1. While I regard the tests in Karavellas to be generally applicable in circumstances where the Court is asked to consider development on sites that may be isolated by a proposed development and which cannot satisfy the minimum lot requirements, in my view the planning principle set out by Commissioner Tuor does not apply to the particular circumstances of this case.
2. In this case, the question is whether the sites at Nos. 139-141 can be considered to be isolated by the proposed development. However, the sites are not an island.
3. I accept the evidence contained in Exhibit M that there is a common controlling interest in all of the sites that are contiguous between Nos. 125-141 Rocky Point Road, characterised by a combination of familial and company interests, with a common individual recorded on each certificate of title. The evidence is that the ownership is held by a director, and a majority shareholder, of a construction company.
4. Furthermore, the development at Nos. 125-137 Rocky Point Road is not a strata lot and the development was completed before the land was zoned for medium density development in 2015 and so is yet to benefit from the uplift in the re-zoning.
5. Additionally, I am told that the development at Nos. 125-137 Rocky Point Road has a common basement which could provide the means of access to the site at Nos. 139-141 Rocky Point Road and so provide vehicular access that may not otherwise be supported from its own land given Rocky Point Road is a classified road and the provisions of cl 101 of SEPP Infrastructure apply.
6. Given the particular circumstances of ownership of the land, and the potential for alternative arrangements for amalgamation to be found with the sites to the north of Nos. 139-141 Rocky Point Road, I consider amalgamation to be feasible, but with those sites to the north already in the ownership of the owner of Nos. 139-141, and not the subject site.
7. Nevertheless I also consider the test to be applied is agnostic as to the owner of the site, and planning controls should operate independently of present ownership. With that in mind, I am satisfied that there is sufficient information in the schematic plans at Exhibit F to understand the relationship between the subject application and the site at Nos. 139-141 Rocky Point Road, and the likely impacts the developments will have on each other.
8. In particular, the adoption of ADG setbacks and the arrangement of window openings at 90˚ to the boundary represent a reasonable schematic layout in the event that the present owner chooses not to amalgamate the site with those at Nos. 125-137 Rocky Point Road.
9. For the reasons stated above, and after careful consideration of the affidavits contained in Exhibits K, L and M in relation to the scope of discussions with the owner of the adjoining sites, I also consider there to be reasonable grounds on which the provisions of Part C2, section 1.1 of the KDCP should be applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act.
10. In the particular circumstances of the ownership of sites on Rocky Point Road, and the likelihood of competing interest in the site, I consider the focus on vehicular access to be a reasonable approach and I do not accept the Respondent's submission that the response from the adjoining owners could be construed as confected disinterest for the purpose of inviting an offer.

Bulk, form, scale and the objectives of the ADG

1. The Applicant submits that as residential flat buildings are a permitted use within the R3 zone, and the proposal complies with development standards relating to floor space ratio (FSR) and building height, other than for the lift overrun, and meets or beats objectives and criterion in the ADG, it cannot be characterised as excessive in its bulk, form or scale.
2. Furthermore, the controls evident in the KDCP were devised before the re-zoning in May 2017, and do not reflect the intent of the controls on this site. Instead, the provisions of the ADG apply and have been adopted.

Setbacks

1. In particular, the Applicant relies on Part 2H of the ADG for guidance on the role expected of the building setback in achieving the desired future character: "Consider zero side setbacks where the desired character is for a continuous street wall, such as in dense urban areas, main streets or for podiums within centres"
2. To the Applicant, the site answers the description of Part 2H in two ways, being on a main road and being considered a dense urban area. Furthermore, the advice of the DRP to adopt a nil, or zero, setback to the northern boundary was followed.
3. The Respondent considers the only grounds for a zero setback to the north to be founded on the adjoining property observing a similar development, and the future development of the B6 Enterprise zone on the opposite side of Rocky Point Road, within the Bayside Council area. As both represent assumptions that are yet to be realised, the Respondent submits that there is no cue to be taken from the character of the street.
4. In lieu of those cues, the desired future character is found in the controls within the KLEP which do not support a zero setback to the northern boundary. In particular, the Respondent draws my attention to the comments of the DRP in relation to Context and Neighbouring Character as follows: There has been limited context analysis provided, which is unacceptable.
5. Presumably resulting the DRP's advice, the Applicant's architect has included Drawing B01.2 Local Context Plan in Exhibit A plans which is not listed in the Pre-DA drawing set, and so appears to have been prepared in order to resolve this omission.
6. The Respondent cautions that in considering the nil setback to the north, I must not apply my own test but allow the provisions of the KDCP to be the focal point, and I am directed to an earlier decision in Atchison v Randwick City Council [2019] NSWLEC 1559 where I found the provisions of the relevant DCP deserved significant weight.
7. However in that matter, where the Applicant sought consent for construction of a single home in an R2 low density residential zone, the provisions that I found had application to the particular circumstances of the matter related to an objective to encourage contemporary and innovative design so as to establish a desired future character.
8. However, as I am required to do by cl 28(2)(a) of the SEPP 65, in this matter I balance the provisions of the KDCP with the advice of the DRP which is dated October 2017. I am advised by the parties that the advice of the DRP refers to the pre-DA drawings (Exhibit N, Tab 1) which depict a different scheme, with substantial setbacks to the northern boundary. In response, the DRP advice is highly specific and directive in its preference for a nil setback, which is described as intended to produce a more amenable built form.
9. Furthermore, the DRP expressly notes that the built form could be mirrored on the adjoining site to the north. If this were done, Mr Smith holds concerns as to the length of the street wall that would result, and both experts agree that an amendment to the plan in the north east would provide some relief in the event the adjoining site does develop in a similar manner. In summary, the amendment would set back a portion of wall currently shown on the boundary containing fire rated glass blocks to the southern extent of the basement fire exit shown in the Rocky Point Road setback, being a dimension of around 1500mm.
10. I give significant weight to advice provided by the DRP. It is clearly stated and is obviously tailored to the particular circumstances of the site, and it considers possible future development on the adjoining site.
11. The DRP supports some flexibility in the application of setback controls in the advice it gave: "This corner site affronts a busy road and comprises two (2) very narrow lots which result in a constrained site for residential development. To the north of the site are two (2) similarly sized lots which could be isolated if strict ADG setback compliance were to be applied."
12. A comparison of the architectural drawings from Pre-DA stage, to those in Exhibit A show significant amendment to the building layout on the site in a manner that corresponds with DRP advice.
13. The Applicant submits that the setbacks to the west also comply with, or exceed the requirements of Part 3F of the ADG. In particular, the additional setback of 3m in Fig 3F.5 required by the design guidance is evident to respect the scale of the adjacent R2 zone, and proposes mature trees on the western boundary to provide for the landscaping desired by the guidance.
14. While the west-facing apartments have large openings and balconies, in my view, the proposal addresses the concerns of residents in Carroll Street through an appropriate combination of setbacks and trees that are expected to reach a height of 9m when mature.
15. I also agree with the Applicant's submission that, as the western setbacks address the interface between R3 and R2 zones, I should follow Commissioner O'Neill's reasoning in Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 at [48] to the effect that development standards such as FSR and height were available to Council when preparing the Planning Proposal in order to manage transitions in scale between zones.
16. However, a consistent height and FSR was applied to all sites from Nos. 113-145 Rocky Point Road when the Council prepared the proposed rezoning so as to achieve the Kogarah 2031 Housing Strategy in the Planning Proposal (Exhibit 4, Folio 306).
17. For the reasons stated above, I find the setbacks to the west adequately address the transition in scale between the R3 and R2 zones.
18. Part C2, section 6 (Control 4) advises that side and rear boundaries to residential flat buildings should be 3m plus ¼ the amount that the wall exceeds 3m. However, according to Mr Smith, the southern setback to Weeney Street is more appropriately the subject of merit assessment.
19. Generally, a 2m setback is provided, with the lift and fire stairs encroaching on this setback. The Landscape plan, Exhibit E, shows low scale planting in the setback.
20. On the basis of the following, I am satisfied that the setback to Weeney Street is acceptable: 1. The shadow diagrams confirm that overshadowing of properties to the south of Weeney Street are not adversely affected by shadow from the proposed development after 12pm midday at the winter solstice. 2. The proposal, in my view, manages the corner site and secondary road frontages, accommodates landscaping and private open space and improves passive surveillance from windows and balconies in accordance by Part 2G of the ADG, without unduly imposing upon the properties to the south of Weeney Street. 3. The interface with the public domain provides an upper level balcony to overlook Weeney Street, front fences and walls fronting Weeney Street are low, or generally permeable to minimise the opportunity for people to be concealed in accordance with guidance on the public domain interface contained at Part 3C of the ADG.

Solar Access

1. The Respondent contends that Units 001 and 002 do not receive sufficient sunlight as required by Objective 4A-1 and 4A-2 of the ADG. According to Mr Smith, the fence enclosing the private open space to the apartments overshadows such that 2 hours direct sunlight is not achieved.
2. The Applicant tendered updated drawings of the fence and gate that provides access to the private open space of the apartments (Exhibit N, Tab 2) which the Applicant believes to resolve the issue. Mr Logan considers the solar access, when measured at a height of a seated person, to comply.
3. On the basis of the fence shown in Exhibit N, Tab 2 and careful consideration of Drawings B017, B020-B022, I am satisfied that the amendment to the height and permeability of the fence will result in sunlight striking the ground, and achieving the additional criterion of maximising the benefit to residents by achieving a minimum of 1m2 of direct sunlight, measured at 1m above floor level for at least 15 minutes.

Site coverage and impervious area

1. The objectives at Part C2, section 7 of the KDCP provide guidance on site coverage and are in the following terms:

• limit site coverage and excavation of new buildings
• maximise opportunities for onsite filtration of stormwater
• maximise opportunities for deep soil landscape areas
• maintain subterranean water flows as much as possible by minimising the extent of disturbance to a site

1. Mr Logan is of the view that the objectives are largely set aside by the provisions of the ADG, the requirements of BASIX and Council's own water management policy, which is not in evidence.
2. Mr Logan considers Objective 3E the ADG, which requires 10% of a site with an area between 650m2-1500m2 to be reserved for deep soil zones, to be a like requirement for site coverage in the KDCP, which is limited to a maximum of 45%. As the proposal provides a deep soil area of 123m2, or 12.3% of the site, it exceeds the requirement of the ADG, which prevails over the like provisions in the KDCP.
3. Relatedly, Contention 6 relies on Part C2, section 8 of the KDCP where, at objective (e), the provisions seek to minimise the impervious areas of the site to reduce stormwater runoff and the potential for local flooding. Controls set out in the table under section 8 of the KDCP require an impervious area totalling 55% of the site.
4. Drawing B012 (Exhibit A) calculates a total site coverage of 48.5%, which exceeds the maximum for residential flat buildings of 45%. However, if unenclosed balconies and terraces are excluded from the calculation, Mr Pickles submits that the proposal represents site coverage of 44.9% and so complies with the control in section 7 of the KDCP.
5. The Respondent considers the objectives go beyond aspects of deep soil and stormwater management, and seek to limit excavation, and the full width basement requires excessive excavation.
6. But Mr Logan notes that basements are excluded from the calculation of site coverage by the definition found in the dictionary of the KLEP, and so the extent of excavation associated with the basement should have no weight in considering the site coverage. Furthermore, as the proposal exceeds the area of deep soil landscaping required by the ADG, the provisions of the KDCP should be given little weight when considered against the provisions of the SEPP 65.
7. In support of which, Mr Pickles relies on cl 6A of the SEPP 65 to the extent that the deep soil requirements of the ADG prevail over the impervious area provisions in the KDCP as they are a like descriptor, as held by Commissioner O'Neill in Binnijig Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1086 (Binnijig).
8. However, while I concur with Commissioner O'Neill's view as expressed at [61]-[62] of Binnijig, to the effect that the provisions of the ADG encompass matters beyond the particular topic or heading of a section, in this case I consider impervious area and deep soil to be sufficiently differentiated as to exclude the operation of cl 6A of the SEPP 65.
9. Unlike the question in Binnijig which found Part 3F Visual privacy to incorporate aspects of solar access and amenity, the chapeau to Part 3E expressly excludes impervious surfaces including car parks, driveways and roof areas from the calculation of deep soil zones.
10. Nevertheless, I also note the chapeau states that one of the benefits of deep soil zones is a function to reduce stormwater runoff, which is an objective of Part C2, section 8(e).
11. I accept that the effective area of soil on the site is 15%, but that some of that figure consists of soil beds with less than a 3m minimum dimension and so cannot be countered as a deep soil zone for the purposes of Part 3E, resulting in the figure of 12.3%.
12. For the reasons that follow, I am satisfied that the provisions of the KDCP in relation to impervious area should be applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act: 1. Firstly, the proposal exceeds the requirement in Part 3E of the ADG for deep soil zone of 7% of the site area, by a factor of around 75%. 2. Secondly, that in addition to the deep soil areas that satisfy the definition in Part 3E, there are further areas of soil that assist in reducing stormwater runoff. 3. Thirdly, as the site is located on a classified road, vehicular access is required to be provided from Weeney Street, resulting in a greater impervious area due to the curved carpark ramp.

Conclusion

1. The development the subject of the development application is for a residential flat building on a site zoned for that purpose, and is in substantial compliance with the density controls evident in the KLEP, and also with the objectives, criteria and guidance found in the ADG.
2. To the extent that the proposal fails to comply with the controls in the KLEP, and the guidance set by the KDCP, it is, in the first instance, responsive to advice from the DRP and, in the second instance, the result of reasonable alternative solutions that, in my view, achieve the objects of those standards and controls intended to deal with that aspect of the development, and so is deserving of those controls being applied flexibly in accordance with s 4.15(3A)(b) of the EPA Act.
3. For the reasons already stated, I am satisfied that the proposed development is suitable for the site, and is in the public interest and it being otherwise compliant with provisions of the ADG, I am minded to grant consent.
4. However as noted at [100], the experts agree that the proposal would better reflect the desired future character and preferred street wall characteristics if amendments were allowed to be made to the north east corner of the development. The Applicant does not object to the amendments summarised at [100].
5. As the final resolution of this corner intersects with a fire exit from the basement, balconies and screening to the eastern elevation which is itself the subject of agreed changes to be made at Condition 10 of Exhibit 3, it is preferable for these amendments to be made in the drawing set prior to consent being granted.

Directions

1. The Court directs that within 14 days of these orders: 1. The Applicant is to file and serve amended plans that incorporate those changes summarised at [100], reflected on the relevant architectural floor plans, and elevations. 2. The Applicant is also to file and serve an amended landscape plan to reflect the final form of plantings consequential to the amendment at [100]. 3. The Applicant is also to make the necessary corrections to drawing B012 to accurately document the extent of deep soil zones in accordance with [126]. 4. The parties are to confer so as to file and serve the final corrected conditions of consent.

Addendum made 28 April 2020

1. In accordance with my directions at [133], the Applicant issued amended plans on 20 April 2020, along with the final and consolidated conditions of consent.
2. The directions at [100] indicated that the amendment is to be a dimension of "around 1500mm" and I am advised by the Applicant that the final dimension of 1105mm is determined so as to ensure a balcony area compliant with the ADG.
3. I am satisfied that the amended plans respond to my findings and so consent to the application should be granted on the basis that the development be carried out in accordance with those Approved Plans and Supporting Documents listed at Condition 1.
4. Accordingly, the Court orders that: 1. The Applicant's written requests prepared under clause 4.6 of the Kogarah Local Environmental Plan 2012, seeking variation of the development standard for height under clause 4.3 of the Kogarah Local Environmental Plan 2012, and the minimum lot size under clause 4.1A of the Kogarah Local Environmental Plan 2012, are upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 2018/0429 for the demolition of all existing structures, site consolidation and construction of a five (5) storey residential flat building containing a total of 19 apartments and two levels of basement parking at 145 Rocky Point Road, Beverley Park, subject to conditions at Annexure 'A'. 4. All Exhibits are returned, except for Exhibits 5, K, L and M.

Commissioner of the Court Annexure A (252 KB, pdf) Plans (2.90 MB, pdf)

Amendments 28 April 2020 - See Addendum at [134]-[137] for final orders. 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: 28 April 2020