The application does not complement the local character as established through the current controls
On considering the evidence before the Court and summarised above, I have determined that the application should be refused as the proposed modified development does not complement the character of the area as informed by the current controls, and is inconsistent with the desired future character of the area as established through those same controls. My reasons are as follows.
Firstly, I accept the submission of the Council that little weight can be given to the Urban Design Study and the Town Centre PP. I accept the evidence of Mr McDonald that the Urban Design Study is consistent with strategic planning regularly carried out by councils, and that there is no certainty as to whether the Town Centre PP will proceed in its current form and result in an amendment to the FLEP 2013 consistent with the Urban Design Study. Rather than accept the evidence of Mr Swan that all planning proposals supported by a strategic planning review (such as the Urban Design Study) proceed without amendment, I prefer the evidence of Mr McDonald that a planning proposal may not proceed for a variety of reasons. I accept his evidence that one such reason could be concerns by the RMS about increased intensity along a major arterial road such as Woodville Road. This is supported by his evidence about planning proposals in other council areas that have not proceeded for that very reason (forcing that council to form a different strategy). It is also supported by his evidence concerning the delays in the planning proposal for the residential area to the west of the town centre. Further, even without those potential concerns arising, I accept the Council's submission that it would be inappropriate to pre-empt the outcome of the Town Centre PP by applying the development standards therein, particularly when the Town Centre PP has not yet been exhibited. To do so would be to subvert the process that the Town Centre PP must undergo before amendments to the FLEP 2013 are made.
Secondly, it follows from this that the character of the area and its desired future character must be informed by the current controls. I accept the Council's submission in that regard. I accept the evidence of Mr McDonald that the intended character of the area is expressed both by the 20m height standard and the 6 levels/storeys documented in Part 7.3.1 of the FDCP 2012. To this end, the Structure Plan provides the strategic background to the 20m height standard and Part 7.3.1 of the FDCP 2012, and to the extent that it relates to "levels" or storeys it is therefore also informative of the intended character of the town centre. However, the departure of the road network and of existing approvals from the road layout and massing depicted in the Structure Plan means that little weight can be placed on it informing the intended character of the area insofar as massing and built form are concerned.
Thirdly, I find that the 7-storey proposed modified development is not consistent with that desired future character and does not complement the intended streetscape and character of the Villawood town centre. In that regard, I accept the evidence of Mr McDonald that introducing a whole residential storey above the height development standard, resulting in a breach of that standard by 38% with a 7th storey of 1000m2 in area and of considerable bulk, does not complement a streetscape intended for 6 storeys. The additional setback of 3m on the southern side of the additional storey is not sufficient to reduce the overall bulk of the 7th storey or ameliorate its presentation as a 7 storey building, particularly when approaching the town centre along Woodville Road.
Therefore, for these three reasons together, I consider that it is not appropriate to grant the modification application as the proposed modified development would be inconsistent with objective (b) of the height control in the FLEP 2013 to "ensure that the height of buildings complements the streetscape and character of the area" and would be similarly inconsistent with the SEPP 65 Design Quality Principles 1 and 2 to identify and respond to "the desirable elements of an area's existing or future character" and achieve a "scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings." As such, the modification application should be refused on that basis.
Additionally, I accept that to grant the modification application would create an undesirable precedent. I accept the evidence of Mr McDonald that acceptance of the modification on the basis of the Town Centre PP would undermine the future implementation of the planning controls, and as such, I accept it would create an undesirable precedent for the town centre that an application can be granted on the basis of a planning proposal that has not yet proceeded to implementation.
For completeness, I turn to the question of overshadowing and whether there is consistency with objective (c) of the height control in the FLEP 2013 to "minimise the loss of solar access to existing development" (cl 4.4(1)). I accept that the overshadowing impact is minor, and that the proposed additional 7th storey uses an additional setback of 3m to achieve the objective of minimising the overshadowing impact to properties to the south. However, I do not accept that the proposed modification minimises the overshadowing to be caused to the Department of Housing property to the east, in relation to which I accept the evidence of Mr McDonald that occupants would be more sensitive to impacts on their amenity. I acknowledge that, consistent with the submission made on behalf of Ahmad, this could be resolved through a direction for amended plans to provide an additional setback to the eastern edge at the 7th storey. However, there is no evidence that such amended plans could go so far as to resolve my determination above that the 7th storey is not consistent with the local character as defined by the current controls. As a result, the modification application should be refused on the basis of that determination.
The Court orders that:
1. The application to modify the development consent for the construction of a 6-storey mixed use development at 882-890 Woodville Road and 3-5 Howatt Street, Villawood (granted by the Land and Environment Court on 10 November 2015 in proceedings 15/10306), by adding one additional level comprising 12 residential units, is refused.
2. The exhibits are returned, except for Exhibits A, B, 4 and 6.
……………………….
Commissioner Gray
[2]
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: 09 October 2018
Parties
Applicant/Plaintiff:
Ahmad Corp Pty Ltd
Respondent/Defendant:
Fairfield City Council
Cases Cited (10)
Is it substantially the same?
In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, the Court of Appeal endorsed the approach of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, in which His Honour found that the word "substantially" in this context means "essentially or materially or having the same essence."
In considering this in the context of a predecessor to s 4.55(2)(a) in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ("Moto Projects"), Bignold J observed (emphasis added):
"54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.
55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development.
56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."
In Vacik Pty Ltd v Penrith City Council, Stein J considered that whilst the use of the land will be relevant to the comparative exercise, that the use of the land remains the same is not determinative.
In Moto Projects, Bignold J determined that a modification application to remove separate ingress for vehicular traffic resulted in a proposal that was not substantially the same because that separate ingress was "a material and essential physical element of the approved development" (at [59]). This "material and essential physical element" was ascertained from the reasons given on the grant of development consent. Similarly, in Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, I considered the reasons given by the consent authority and determined that 3-storeys was an essential element of the development consent.
In Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241, Commissioner Morris determined that the modification application to add an additional storey to the building would result in a development that was not substantially the same because the 5-storeys was "an essential element of the council's determination of the application". The Commissioner reached that conclusion because the conditions of the development consent required additional storeys to be removed.
Circumstances in which the development consent was granted
In the present application, the development consent was granted following a conciliation conference and, as is the custom, the reasons given for the grant of development consent did not address the merits of the proposed development: see Ahmad Corp Pty Ltd v Fairfield City Council [2015] NSWLEC 1450. A Commissioner conducting such a conciliation conference is required by s 34(3)(a) to "dispose of the proceedings" in accordance with an agreement reached by the parties. At [3] of those reasons, it is explicitly stated that:
"In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties."
Additionally, as the appeal the subject of those proceedings was lodged following the period after which a development application is "deemed" to be refused, there was no assessment report prepared with respect to the proposed development.
As part of the orders made in accordance with the agreement reached at the conciliation conference, leave was granted to Ahmad to rely on amended plans, which reduced the scale of the development from a 9 storey mixed use development to 6 storeys.
The only other evidence of the circumstances in which the development consent was granted is a letter dated 8 April 2015 from a Senior Development Planner of the Council and addressed to Architecture Design Studio Pty Ltd. That letter sets out various issues with the development application for the 9-storey mixed use development as originally sought. In particular, the letter states at pages 1-2 (emphasis added):
"the site is subject to a maximum building height of 20metres (6 storeys) in accordance with Fairfield Local Environmental Plan 2013 Building Height Map. In this regard, the proposed 9-storey development with a building height of approximately 31.4m significantly departs from the allowable building height. The proposed variation from the building height development standard is considered excessive and does not appear justified in this instance.
The urban design analysis accompanied the application suggests additional building height for the subject site and adjoining properties within the Villawood Town Centre. The content of which has been noted. However, and as advised in Council's previous letters including the Development Advisory Meeting Notes, the proposed development, in its current form, is unlikely to be supported by Council.
Furthermore, the proposed scheme is inconsistent and does not comply with the building envelopes outlined in the Concept Structure Plan 2008 for the Villawood Town Centre.
The desired built form of the site is predicated on the amalgamation of lots north of Cheryl Lane. As such, the built form and scale of development for this site provides for a 6-storey perimeter building along the Howatt Street and Villawood Place frontage with a roof terrace to the rear facing Woodville Road instead of the built form proposed with the bulk predominately located along the Woodville Road frontage.
The building envelopes as set out in the structure plan outlines Council's vision for Villawood Town Centre and the height of which are· prescribed in Clause 4.3 of Fairfield LEP 2013.
Should you wish to pursue an alternative building height and built form that departs from the details in the structure plan, a planning proposal will need to be lodged to amend the height limit currently applicable on the site as identified in the Fairfield LEP 2013. This was outlined to you previously from Council's Strategic Land Use and Planning Division.
In view of the above, the significant departures from the Fairfield LEP 2013 and the Villawood Town Centre Structure Plan in respect to building height and built form are unlikely to be supported. Accordingly, the application shall be amended to achieve a maximum of 20m or 6 storeys and comply with the built form detailed in the Villawood Town Centre Structure Plan."
Ahmad's position that it is substantially the same
Ahmad submits that the proposed modified development has the same essence as originally approved, as it remains for the same land use, is materially the same mixed use form of development, and there are no essential or critical elements of the approved development that can be discerned from the circumstances that would be altered by the modification application.
Ahmad submits also that the Court cannot be satisfied that the circumstances of the consent identify any essential element such as a 6-storey building form. It refers to the decision of Commissioner Tuor in Parker Logan Property Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1333, in which she considered a modification application following a grant of consent arising from an agreement reached at a conciliation conference held pursuant to s 34 of the LEC Act, and said (at [26]):
"Even if the "circumstances" are relevant, in this case the consent was granted on the basis of a s34 agreement and there is no documentation or evidence before the Court, other than plans prior to the s34 conciliation conference and the plans approved under the Development Consent, which can demonstrate the "circumstances" given that there is no written assessment of the DA under s 79C of the EPA Act."
As to the evidence of Mr McDonald, Ahmad submits that his opinion can only be considered speculation and inference, given that he has no personal knowledge of the circumstances of and leading to the s 34 agreement.
Further, Ahmad submits that the letter relied upon by the Council does not support the interpretation that the Council would never have approved a development that was something other than 6-storeys. Rather, Ahmad says that the letter required amendments to the proposal "to achieve a maximum of 20m or 6 storeys… and comply with the built form detailed in the Villawood Town Centre Structure Plan". Notwithstanding this, the Council agreed to the grant of development consent for a built form that exceeded the height development standard and had a form that did not comply with the Structure Plan. As such, Ahmad submits that there is no evidence that the Council would not have agreed to something other than a 6-storey development.
Finally, Ahmad submits that consistent with the decision of Commissioner Moore in Bassett and Joans Architects Pty Ltd v Waverley Council (No 2) [2005] NSWLEC 530, the mere passing of a planning control or standard, is not a relevant matter for consideration in determining the question of whether a proposed modified development is substantially the same.
The Urban Design Study and the Town Centre Planning Proposal
Ahmad submits that the strategic direction of the Council and the desired future character of the Villawood town centre should instead be taken from the Urban Design Study and the Villawood Town Centre PP. Ahmad submits that in adopting the Urban Design Study and moving forward with the Town Centre PP, the Council has abandoned the 2008 Structure Plan and taken steps consistent with its implementation of the RDS.
In support of this submission, Ahmad relies on the fact that the Council's Town Centre PP reflects the controls envisaged by the Urban Design Study. In the justification supporting the Town Centre PP, it states that "The Planning proposal is a result of the Villawood Town Centre Urban Design Study (VUDS). The VUDS was prepared to provide greater density and housing choice within close proximity to Villawood Train Station."
For these reasons, Ahmad submits that the strategic direction for the Villawood Town Centre is for higher density and greater heights than what the current controls allow, and that both the Urban Design Study and the Town Centre PP should be given significant weight in the assessment of the modification application.
In support of this submission, Ahmad refers to the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472, in which His Honour considered the relevant matters in determining the weight to be given to a planning policy, as follows (at [92]):
"To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
• the extent, if any, of research and public consultation undertaken when creating the policy;
• the time during which the policy has been in force and the extent of any review of its effectiveness;
• the extent to which the policy has been departed from in prior decisions;
• the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it."
Ahmad therefore submits that, given that the Urban Design Study has been researched and widely consulted, and is consistent with the Town Centre PP, is would be given significant weight as compared to the 2008 Structure Plan.
Ahmad also relies on the evidence of Mr Swan that the Town Centre PP, which aligns with the Council's strategic plan, will be eventually adopted and result in changes to the FLEP 2013. His evidence is that based on his experience with planning proposals for other local government areas (such as that for Leppington in Camden Council), there is sufficient strategic planning to support the Town Centre PP, he has never experienced a planning proposal 'fall over' due to the position of the RMS, and as a result, with the proximity of the town centre to public transport, there is sufficient certainty that the Town Centre PP will move forward without any change to the proposed increase in the height development standard.
The letter goes on to outline an additional 18 issues that need to be addressed. There is no other document that establishes the Council's position with respect to the original development application or that records the reasons why an agreement was reached at the conciliation conference.
As to the timeline for the amendment to the FLEP 2013, the evidence of Mr Swan (based on correspondence with officers of the Council) is that the exhibition of the Town Centre PP has been delayed due to additional information sought by RMS. He says that otherwise, the dates on the timeline have been met for the report to the Council and the Gateway Determination. As such, Mr Swan opines that the project timeline is on track to see the amendment to the plan made by April 2019.
Ahmed submits that, based on this evidence, planning outcomes consistently sought by a council are likely to be achieved, with the only uncertainty relating to the timing.
On the other hand, Mr McDonald's evidence is that the strategic process that the Council is undertaking through the Urban Design Study is consistent with base-line strategic planning regularly undertaken in the Sydney urban environment and may or may not result in changes to the planning controls. Mr McDonald observes that there is no publicly exhibited Planning Proposal and no draft DCP. He opines that any potential change to the current planning controls, should they occur, is sometime away in the future and is not imminent or certain. His oral evidence was that in his experience, planning proposals can change or may not be pursued following public exhibition, or even prior. He gave evidence with respect to the planning proposal for the residential area to the west of the town centre, that although that has been on public exhibition, feedback from the RMS has raised concern about the increased density along Woodville Road and so there remains doubt as to the outcome of that planning proposal. His evidence is that this has occurred notwithstanding that the RMS did not raise concerns during the exhibition of the urban design study that informed that planning proposal. Contrary to the evidence of Mr Swan, Mr McDonald's experience is that he has been involved in planning proposals (such as in the Canterbury-Bankstown Council area) that have not eventuated in a change in development standards due to RMS feedback concerning traffic on an existing arterial road. His evidence is that the current context is distinct from Mr Swan's experience with Leppington, which is a greenfield development area. Based on Mr McDonald's experience in planning proposals for established areas, he is uncertain as to what the position of the RMS will be with respect to increased densities proposed in the Town Centre PP. On his evidence, that is just one example of what could change throughout the consultation process. As a result, he opines that no one can be certain as to whether the planning proposal will result in a change to the height development standard.
The Council submits, therefore, that based on the evidence of Mr McDonald, there is no certainty that the height development standard will increase, and it would be irresponsible to pre-empt the outcome of the process embarked upon in the Town Centre PP. As such, it submits that little weight can be placed on the Town Centre PP or the Urban Design Study, and the focus must be on the current controls.