Akbal v City of Canada Bay Council

Will the Proposed Development detract from the streetscape and local area?

1. In determining a development application, s 4.15 of the EPA requires the Court, as consent authority, to take into consideration such of the following matters as are of relevance to the development the subject of the development application: … (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
2. The Site is 12.04m wide as it presents to the street and is located within Zone R2 where dwelling houses are permitted with development consent pursuant to the CBLEP. Relevantly, the height of the building for the Proposed Development is 7.15m and complies with the maximum height of buildings development standard of 8.5m provided in cl 4.3 of the CBLEP. Similarly, the Proposed Development does not exceed the maximum Floor Space Ratio of 0.5:1 provided in cl 4.4 of the CBLEP.
3. The Site is not located within the vicinity of any heritage items of heritage conservation areas pursuant to cl 5.10 of the CBLEP.
4. I have considered the objectives of the R2 Low Density Residential (cll 2.2 and 2.3 of the CBLEP) and consent is sought for the demolition of the existing dwelling (cl 2.7 of the CBLEP).
5. The agreement between the experts is that the character of the area is: 1. "defined by low density residential development with various mature street trees." 2. "is not strictly uniform." and 3. "Lenore Street comprises various original and altered Californian bungalows as well as examples of single and two storey 1980's style dwellings and more recent infill development comprising contemporary detached dwellings and dual occupancy development"
6. The Proposed Development complies with all relevant development standards and controls in the CBLEP and has no unreasonable amenity impacts on any of the adjoining neighbours. The non-compliances referred to by the Respondent are confined to the CDCP 2017. In closing submissions, the Respondent submits that consideration of the CDCP 2017, Part E Residential Development is a fundamental element of the Court's decision making (Tcpt, 2 February 2023, p 89). Whereas, the Applicant submits that this really is a direct quote from the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang), "but unfortunately that decision is really old law that can really no longer stand in the face of the amendments to the statutory scheme, because that decision preceded the amendments that were made to s 4.15 to introduce s 4.15(3)A to the EPA Act." (Tcpt, 2 February 2023, p 94(16))
7. The Respondent agrees with the application of s 4.15(3A) of the EPA Act, and submits that "if a standard is not met in the DCP, then you have regard to the objectives and you're flexible in applying those provisions and you allow reasonable alternative solutions to deal with the aspects of the development . . . Mr Hemphill has gone into evidence and considered how, particularly for E1.1, where there's non-compliance with the controls relating to front façade articulation and roof design and control relating to verandas, he's considered the objectives and he's on the basis of this street and their character analysis that has been submitted, applied them to the assessment of the application." (Tcpt, 2 February 2023, p 89(16))
8. The Applicant further submits that the Zhang decision is also old because at the time of the Zhang decision the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP Exempt and Complying) did not exist either and, "so, this overlay of State policy that influences character of local areas, you can have all the DCP controls you like, but the reality of planning now is that the State has taken much more control through exempt and complying development provisions, not only ‑ once upon a time only for dwelling‑houses and secondary dwellings, but now we have exempt and complying development for dual occupancies, for townhouses, for villa houses. The reach of State control is growing bigger and bigger and, therefore, these DCPs can no longer be said to be the focal point for consideration. Yes, they have to be considered, but they no longer have the same role to play, especially ‑ it would be fine if it didn't purport to say you have to, you know, respect streetscapes and existing character. The trouble is that that brings with it the overlay of the over planning controls." (Tcpt, 2 February 2023, p 94(26)).
9. I accept the Respondent's submission that "the fact that the Sites is not in a Heritage Conservation Area, the fact that complying development can be approved on the Site aren't matters that would cause you to give the DCP any less weight." (Tcpt, 2 February 2023, p 93(43))
10. I set out s 4.15(3A) of the EPA Act below: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (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, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
11. I acknowledge that the Respondent is not seeking a California Bungalow be replicated on the Site (Tcpt, 2 February 2023, p 92(45)). I have considered the objectives in the CDCP2017 where the controls are not strictly complied with.
12. The changes made by the Applicant to the presentation of the Proposed Development in the Rev E plans result in my finding that the design of the Proposed Development, including the basement carparking, is compatible with height, bulk and scale of pre-existing and desired future character of the locality. I have considered the evidence before the Court including the Streetscape Character Analysis prepared by Urbanesque Planning Fig 3 and 3.1 at Folio 474 and 475 Respondent's Bundle of Documents (Ex 3) and the evidence of the experts. When considering the streetscape, the visual catchment is an important focus. "[T]he southern portion of that visual catchment is what Mr Hemphill considers an intact group of Californian bungalows" (Tcpt, 2 February 2023, p 89(35)). "It's agreed that to the north of the Site, the northern side of the visual catchment and the streetscape in itself, there's a mix of architectural styles … however Mr Hemphill's evidence is that those styles are more sympathetic and don't detract from the streetscape as a whole." Tcpt, 2 February 2023, p 89(45))
13. I am not persuaded that the so-called ornate details of the architectural style of the Proposed Development contributes to not achieving a quieter architectural style and I am not persuaded that the Proposed Development remains offensive to the streetscape, notwithstanding the Rev E changes. I conclude that the Proposed Development will not detract from the local character which consists of a mix of architectural styles.
14. In relation to the future character, I have considered the decision of Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2) and in relation to that decision the Respondent submits that: "when considering the nature of the street, there was regard to the approvals and the constructions of the developments within the street and how they changed the desired future character and how they supplemented to the LEP and the DCP controls in order to change that character. The Council says that you shouldn't have regard to what potentially could exist in the streetscape in the future under the Code SEPP … The task that you need to deal with is the development application as it stands today, not consider this street as a series of complying developments that could potentially be approved under the Code SEPP." (Tcpt, 2 February 2023, p 90(6) to (19))
15. The Applicant submits that: "The simple proposition is that the CDC power and the State Environmental Planning Policy exempt and complying development provisions affect the likely future character of this area and it's that assessment, because the DCP is asking you to consider the compatibility with the character of the area, you can't just look at the character as if it were preserved, as I said before, in aspic, because it isn't, but, rather, you have to have regard to the fact of what's there that's been approved by the council or under CDCs and what's likely to come, because there is reference as well to the concept of the desired future character. That's the reason why it's relevant." (Tcpt, 2 February 2023, p 94(6))
16. Preston CJ, in SJD DB2, at [54] said as follows: "54. I consider SJD's construction is correct. The first reason flows from the fact that WLEP has not defined the meaning of the term "desired future character" that is used in various provisions of WLEP. The drafter of WLEP has, therefore, not confined the meaning of the term "desired future character" by reference to the particular provisions in WLEP, including those concerning the zoning, the permitted and prohibited development, and the development standards, that shape the urban character and built form of neighbourhoods or areas in Woollahra. In circumstances where the term "desired future character" is undefined and unconfined in WLEP, the matters that may be taken into account in evaluating what is the desired future character of a particular neighbourhood or area at any point in time will similarly be unconfined, except insofar as there may be found in the subject matter, scope and purpose of WLEP some implied limitation on the matters that may legitimately be considered. There is no limitation found in the subject matter, scope and purpose of WLEP which would preclude consideration of developments that have been approved and constructed in the neighbourhood or area."
17. As O'Neill C said in Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161, at [42] "The desired future character of any area cannot be determined by the applicable development standards for height and FSR alone."
18. I conclude that future possible complying development do not necessarily assist the Court in the broad consideration of the future character of a local area as there is sufficient uncertainty as to the probability or likelihood of that future development being under the SEPP Exempt and Complying or pursuant to the CBLEP. However, I do consider the existing developments within the streetscape and within the local area that have been constructed pursuant to the SEPP Exempt and Complying as contributing to the character.
19. I have considered the planning principle that deals with the concept of compatibility being the decision of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, Roseth SC at [22] to [26] states as follows: "22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. • Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. • Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character."
20. The Respondent's planner is of the opinion that the architectural style of the Proposed Development is not appropriate here. The Applicant relies on the Site Analysis Plan DA 03 noting that the façade elements compared with neighbouring facades are set back further than the existing neighbouring dwellings and submits that the Proposed Development is therefore less imposing. I reproduce the Site Analysis Plan below at Fig 3. Fig 3: Site Analysis Plan Dwg No D03 Rev E 1/02/2023 (Ex A)
21. The Respondent in closing submission, the experts stated: "acknowledgement that the most important contributor to urban character is the relationship of built form to surrounding space, a relationship created by heights, setbacks and landscaping, the reference to E1.1 and the objectives in the CDCP 2017, where the CDCP 2017 is seeking that building scale complement and conserve the visual character of the street, this sits with Project Venture and the fact that when dealing with compatibility, you'd have regard to the height, the form of the development." (Tcpt, 2 February 2023, p 93(26))
22. I accept the Applicant's submission that: "in respect of objective 1, E1.1. A lot of stress was placed on the proposition of the building pattern in relation to the architectural style. Building pattern has got nothing to do with architectural style. Building pattern is about relationships between buildings, both to the street and to each other. It's a building envelope control, essentially. It's about front façade articulation and presentation to the street by reference to the side setbacks and the front setbacks. It's got nothing to do with architectural style. Architectural style only comes into it in the context of E1.3 and the only mention of it is in O2, "to encourage complementary and sympathetic wall treatments and new and existing houses are consistent with the architectural style of existing dwellings in the street and adjoining locality", and when we do that, we go wider than the streetscape. We go as far as to consider the rest of the locality." (Tcpt, 2 February 2023, p 95(12) to (25))
23. For all these reasons, I have concluded that the Proposed Development will not detract from the streetscape and local area and that development consent can be granted.
24. The parties have agreed on Proposed/Draft Conditions of Consent (Ex 4).

Jurisdictional matters

1. There are some jurisdictional prerequisites which the Proposed Development must satisfy before I can exercise the Court's function. I will deal with these briefly below.
2. Clause 6.2 of the CBLEP contains matters that the consent authority must consider prior to granting development consent for earthworks. The Proposed Development proposes excavation to approximately 2m below the existing ground surface to accommodate the basement level (Class 1 Application, Tab 11 pages 2 and 5).
3. The Applicant submits that the Court can consider the matters specified in cl 6.2(3) of the CBLEP having regard to the Applicant's Geotechnical Investigation filed with the Class 1 Application at Tab 11.
4. The Site is contained within the Sydney Harbour Catchment pursuant to former Ch 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). Chapter 10 of the Biodiversity and Conservation SEPP has since been repealed, but continues to apply to the Proposed Development pursuant to s 6.65 of the Biodiversity and Conservation SEPP. Planning principles for land with the Sydney Harbour Catchment are contained in Pt 10.2 of the Biodiversity and Conservation SEPP. These principles are not required to be considered when determining the Proposed Development (s 10.9 of the Biodiversity and Conservation SEPP). The Site is not within the Foreshore and Waterways Area Boundary pursuant to Ch 10 of the Biodiversity and Conservation SEPP. As a result, the Site is not within a Zone indicated in Pt 10.3, Ch 10.
5. The Site is not within a coastal management area pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and there are no consequent development controls pursuant to Ch 2. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider whether land is contaminated before consenting to development on that land. Due to the existing and surrounding residential uses of the Site, I am satisfied that the land is not contaminated (Class 1 Application, Tab 13)
6. The Site is mapped as Class 5 land for the purposes of cl 6.1 of the CBLEP. Development consent is required for the carrying of works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely is to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. There is Class 2 land within 500m of the Site (Tab 5, Bundle of Documents Ex 3)
7. The Applicant provided a Geotechnical Investigation (GI) with the Class 1 Application, Tab 11. The GI considered acid sulfate soils (ASS) at pages 7-9 and concludes as follows: "Therefore, site development is extremely unlikely to result in the lowering of the groundwater where nearby ASS may be present. Therefore, the proposed works will not result in exposure of ASS allowing oxidation to take place and resulting in the development of acidic conditions. Based on our onsite observations, it is our opinion that the proposed construction will not intercept any ASS in the area nor cause lowering of any groundwater. Our assessment is the proposed construction will not require the preparation of an Acid Sulfacte Soil Management Plan."
8. Accordingly, I am satisfied that the Proposed Development is not likely to lower the water table below 1m AHD on adjacent Class 2 land.

Orders:

1. The Court orders: 1. The appeal is upheld. 2. Development application no 2021/0266 for demolition of structures and construction of a three-storey dwelling including basement parking and swimming pool (the Proposed Development) at 29 Lenore Street, Russell Lea is determined by granting consent to the application subject to the conditions in Annexure A. 3. All Exhibits are retained.

Commissioner of the Court 252946.22 Annexure A (386577, pdf)

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