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[2013] NSWLEC 1057
Land and Environment Court (NSW)
2013-03-20
Original judgment source is linked above.
Mr S Patterson of Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11122 of 2012
Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act (EPA Act) against the deemed refusal of a development application (307/2012/10) for alterations and additions to an approved mixed use development at 29-33 Cooper Street and 9 Hilts Road, Strathfield (site). 2The key issues in dispute between the parties are whether the proposed additions are of acceptable height, bulk and scale and whether the objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) is well founded.
Background 3On 17 January 2012, the Court made orders in Appeal No. 10422 of 2012 (Approved DA) in accordance with the agreement reached between the parties at a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). The terms of the agreement are: 1.The parties have reached agreement as to terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). 2. The terms of the decision are as follows: (a) The appeal is upheld. (b) The Applicant is granted leave to rely upon the plans listed in condition 1 of Annexure "A" hereto. (c)The objection to compliance with the FSR standard imposed by clause 61H(11) of the Concord Planning Scheme Ordinance is upheld. (d) Development Application No. 600/2010 as amended, for: the construction of a mixed use development comprising three basement levels for parking, commercial space and eight levels of residential apartments at 29-33 Cooper Street and 9 Hilts Road Strathfield, and the demolition of existing structures upon those properties, is approved subject to the conditions set out in Annexure "A" hereto. (e) The Applicant is to pay the Respondent's costs of $10,000 within 28 days of the date of these Orders in satisfaction of the order made under section 97B of the Environmental Planning and Assessment Act on 14 October 2011. 3. Pursuant to Section 34(3)(a) and (b), the parties request the Commissioner to dispose of these proceedings in accordance with the terms of the decision set out in paragraph 2 above. 4The development for which consent was granted under the Approved DA is currently under construction. A development application was lodged on 18 August 2012, for "modification of a Court approved mixed use development by adding twelve (12) apartments" (Original DA). As a result of conferences held under s 34 of the LEC Act, the application was amended (Amended DA). The parties did not reach agreement and the s34 conciliation conference was terminated. The parties agreed to my disposing of the proceedings under s 34(4)(b)(i). At the hearing, the applicant sought and was granted leave to amend the application and to rely on amended plans subject to a cost order under s97B of the EPA Act (Further Amended DA). A summary of changes between the Approved DA, the Original DA, Amended DA and Further Amended DA is below: Approved DA Original DA Amended DA Further Amended DA No. of units 56 68 66 65 (none on (none on ground (4 on ground (4 on ground ground level) level) level) level) Increase in no. of units - 12 10 9 (4 on ground (4 on ground level) level) Commercial area 329.7m2 328.3m2 36.6m2 36.6m2 GFA 5541.3m2 6,873.9m2 6,016.7m2 5,949.2m2 Predominant height of roof of uppermost storey RL39.7m RL42.70m RL41.42m RL41.42m Maximum no. of storeys 8 9 9 9
5The Further Amended DA seeks approval for alterations and additions to the approved mixed use development. A summary of changes includes: Overall
Site and its locality 6The site is located within the "Strathfield Triangle" on the north eastern corner of Cooper Street and Hilts Road. It is rectangular in shape with a frontage of 39.6 m to Cooper Street and 45.9 m to Hilts Avenue with a site area of 1795 sq m. A mixed use development is currently under construction on the site. 7The Strathfield Triangle is an area bounded by Parramatta Road to the north, Leicester Avenue to the east and railway lines to the west. It is close to Strathfield Station and Strathfield Town Centre and forms part of the Parramatta Road corridor. It is undergoing redevelopment for high density residential development. A number of developments have recently been approved and constructed in the area. Development in the vicinity of the site includes:
Planning controls 8The site is zoned 10(b) Enterprise Area under Concord Planning Scheme Ordinance (CPSO). The development is permissible with consent. Clause 61(H) applies to land within the Strathfield Triangle which is divided into Precincts. The site is within Precinct F and under cl 61H(11) a floor space ratio (FSR) of 2.5:1 is permissible for Precinct F as a whole. The proposal exceeds the FSR control and the applicant has lodged an objection under SEPP 1. 9Strathfield Triangle Development Control Plan 2002 (DCP 2002) applies to the site. It includes objectives for the Triangle Precinct (Part 2); urban form principles (Part 3); precinct controls (Part 4); street principles (Part 5) and built form controls (Part 6). The parties agree that there have been significant departures by the Approved DA and other developments in the Precinct from the numerical controls in DCP 2002, particularly the number of storeys control for the site in Part 4.10 of 3-4 storeys stepping up to 5 storeys on the corner of Cooper Street and Hilts Road. The parties disagree on the weight to be given to the objectives and principles contained in DCP 2002, which is discussed later in this Judgment. 10The Strathfield Triangle was a "deferred matter" in the Canada Bay Local Environmental Plan 2008 (LEP 2008). The Strathfield Triangle Planning Proposal (Planning Proposal) proposes to repeal CPSO and include revised standards for the Strathfield Triangle in LEP 2008. Under the Planning Proposal the site would be within the R4 High Density Residential Zone with a maximum height of 17m. There is no proposed FSR control. 1-14 Hilts Road is proposed to be zoned RE 1 - Public Recreation under the Planning Proposal and is included on the Land Acquisition Map for the purpose of local open space. 11Draft Strathfield Triangle Development Control Plan (Draft DCP) is proposed to supplement the proposed amendments to LEP 2008 to provide detailed development principles, controls and guidelines for development in the Strathfield Triangle. 12The Planning Proposal and the Draft DCP have been exhibited three times and are to be further considered by council in April. 13State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered. 14The applicant submits that State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land) (SEPP 32) also applies to the development, which is discussed later.
Evidence 15The Court visited the site and heard evidence during the s 34 conciliation conference from Mr R Chambers (planner) and Mr S Thorne (architect of the proposal), for the applicant, and Mr S Ardlie (planner) and Ms G Morrish (architect and urban designer), for the council. The parties agreed that the evidence and view during the conciliation conference were evidence in the hearing under s 34(4)(b)(i) of the LEC Act. The same experts provided further evidence during the hearing. 16The experts agree that the changes proposed to the south west corner element and to the squaring off of the curved façade elements on level 6 and 7 are acceptable, except for the eaves on level 7. The experts also agree that the conversion of commercial space on the ground floor to four residential units is acceptable. Their key disagreement centred on the height and bulk of the additional levels to provide five units and the decrease in the floor to floor height on the residential floors. The experts also disagreed on the proper planning approach to the assessment of the application.
Proper planning approach 17The Further Amended DA seeks approval for "alterations and additions to the approved development". The changes are illustrated in clouding on the plans for which leave was granted. The Parties agree that the Approved DA can be amended by a new DA and that the matters to be considered relate to the substantive development and not merely amendments to the existing consent (see Waverley Council v C M Hairis Architects [2002] NSWLEC 180; Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780; Humphrey & Edwards v City of Sydney [2009] NSWLEC 1075). Although, the council submits that the changes to the floor levels make it difficult for the two consents to operate in tandem, even if a condition under s 80(1)(b) and (5) of the EPA Act were imposed. 18The Parties disagree on the planning framework under which the development should be assessed, in particular the weight to be given to DCP 2002, the Planning Proposal and the Draft DCP. 19The experts agree that the Approved DA and the Further Amended DA do not comply with the FSR control in cl 61H(11) of CPSO and the height control in DCP 2002 and in the Planning Proposal. They agree that there is surrounding development within the immediate context which breaches the existing and proposed building height controls. They also agree that the Planning Proposal is neither imminent or certain but may be considered in determining the likely future character for the precinct 20Mr Chambers considers that due to the non compliances, the controls in DCP 2002 should be given little weight and the development should be assessed against the existing context and the likely future context. He acknowledges that the Planning Proposal and Draft DCP should inform an understanding of the desired future character, but places greater emphasis on the increase in the heights of buildings rather than the concept of reducing height towards the centre. He considered that there is little certainty that the park proposed in the Planning Proposal for opposite the site would be realised. Mr Chambers also considered the increased height and density of the Further Amended DA are consistent with the objectives of SEPP 32 21Ms Morrish and Mr Ardlie consider that, despite the non compliance with numerical controls, the objectives for the Strathfield Triangle and Precinct F in both the DCP, the Planning Proposal and the Draft DCP are relevant considerations. In their opinion, the breaches in the height controls of developments are generally limited to two storeys and maintain the relativity sought by the controls, with taller buildings around the edge stepping down towards the centre. Ms Morrish prepared a diagram, which illustrated that this concept was retained in the different versions of the DCP, despite changes in the numerical height controls. 22Mr Drury, for the Applicant, submits that the Approved DA exceeds the controls and the proposal is a further exceedance with acceptable impacts. In his submission, the FSR control in CPSO and the height control in DCP 2002 have been effectively abandoned. The Planning Proposal and the Draft DCP have not been adopted by council and should be given little weight. Nevertheless, the development responds to the existing context and is supportive of the strategic approach sought by the controls, including SEPP 32. 23Mr Patterson, for the council, submits that the exceedence of the FSR control in CPSO is a prohibition unless the SEPP 1 objection is well founded. He submits that DCP 2002 must be given weight despite the non compliance with the height controls. The Planning Proposal and the Draft DCP have been advertised three times and are to be considered by council in April. In his submission, they demonstrate the strategic direction for the precinct and should be given weight. Further, he submits, that SEPP 32 requires consideration of whether "urban land is no longer needed or used for the purposes for which it is currently zoned or used, ...is suitable for redevelopment for multi unit housing and related development...". It therefore does not apply to the site as it is zoned for multi-unit development at increased densities.
Findings 24The proper planning approach is established by the zoning and FSR control in CPSO and the SEPP 1 objection. As discussed below, I do not accept that the FSR control has been abandoned and I am required to determine whether to uphold the SEPP1 as a precondition to the granting of consent. The DCP must also be given weight (see Zhang v Canterbury Council [2001] NSWCA 167 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). However, the Approved DA and other developments in the Precinct have exceeded the numerical height controls. Nevertheless, I accept that the desired future character for the Precinct in DCP 2002 remains valid and, is maintained in the Planning Proposal and the Draft DCP. Although, these documents have not been adopted by council and therefore can be given little weight. The key criterion to establish the appropriateness of the proposal is its relationship to its immediate context, which has recently been developed and is therefore unlikely to change. Clearly, if the site opposite is to be a park there is greater sensitivity, however, I accept that there is no certainty that this will occur. 25I do not accept that SEPP 32 is justification for any increase in density on the site given that its objectives have been achieved through the current zoning of the land for multi unit purposes and the increased densities that are already permitted. Clearly the land is needed for the purpose for which it is currently zoned. Any further increase in density should be implemented through the strategic planning framework and not through one off development proposals.
Height and bulk of the proposal 26The experts agree that the three dimensional comparison views of the built form provide a clear and concise summary of the differences between the Approved DA and the Further Amended DA. However, they disagree on the impact of the changes in the height and bulk of the building. 27In Mr Chambers' opinion, the proposed development is appropriate, even if assessed under DCP 2002 and the Draft DCP, as it responds to its context and the height of existing buildings, it represents only a minor increase in height over the Approved DA (max 1.72m) and the setback of the additional floors and units do not add to the perceived bulk of the building. 28Ms Morrish and Mr Ardlie consider that the Approved DA meets the objective of the controls as it maintains the relative heights between taller development along the edges which steps down towards the centre. The Approved DA also responds appropriately to existing development by stepping down in height along Cooper Street and respecting the height of the buildings in Hilts Road to "create an appropriate height and storey relationship to the existing context". They consider the proposed changes will result in a 9 storey building which will increase the bulk of the building and is excessive in comparison tho the Approved DA and the planning controls. 29The experts disagree on the appropriateness of reducing the floor to floor height of the residential floors from 3.0 m to 2.915 m to insert the additional floor generally into the approved height of the building. 30Ms Morrish considers the reduction in floor to floor height to not be standard practice as the construction tolerances are tight and may result in a further increase in the building to maintain the 2.7 floor to ceiling height required by the Code. Further, the proposal impacts on future residential amenity as it provides no ceiling space and therefore limits options to change fittings and provide LED downlights, which are more environmentally sustainable. 31Mr Chambers considers the reduction in floor to floor heights to be acceptable, as it limits the overall increase in height of the building, maintains the floor to ceiling height of 2.7 m and has been approved in other developments (16-24 Parramatta Road). Mr Thorne stated that it is not usual construction practice as it involves greater costs with set ceilings and surface mounted fittings and services. He accepted that it would reduce flexibility and limit choices, such as the provision of downlights.
Findings 32The Approved DA exceeds the 3-5 storey height limit in DCP 2002. However, it maintains a five storey street wall to Hilts Road with a set back sixth floor, which forms a transition to the height of recent development along Hilts Road. As the number of floors increase they are setback further from Hilts Road and the adjoining development to the east. Levels 6 and 7 are partial floors, which are located towards Cooper Street and the centre of the site, in response to the adjoining development along Parramatta Road and to screen the blank southern wall of 39 Cooper Street. 33The experts agree that the setbacks and location of the floors in the Approved DA which exceed the DCP control reduces their visibility and perceived bulk when viewed from the public domain. I acknowledge that considerable effort has been undertaken to respond to the building's context, particularly in Hilts Road and to maintain the objectives in DCP 2002 to step taller building down to the centre. However, it could be argued that the Approved DA is beyond what is anticipated under the planning controls. It is a large building within the Hilts Road context and the upper floors are visible from certain vantage points, albeit against the backdrop of the buildings in Parramatta Road. 34Furthermore, the Approved DA results in considerable overshadowing in midwinter of the site on the opposite side of Hilts Road. Whether this is to be developed for a park or for a residential flat building, the overshadowing from the Approved DA and other approved developments will impact on its amenity. While the additional overshadowing resulting from the Further Amended DA is a minor increase, I do not accept that it is reasonable to further increase the bulk of a development, which may already go beyond the controls. 35The reduction in floor to floor height enables an additional floor to be inserted generally into the approved height. It can be achieved while maintaining the 2.7 m floor to ceiling height in the Code and is therefore not a reason for refusal of the application. However, I accept that this reduces the overall amenity of the proposal. It is a more expensive option, which limits the choice of fittings and services and is not a common construction technique. 36Due to the reduction in the floor to ceiling heights, the overall height of the Approved DA is increased by only 1.72m. However this does not accurately reflect the increase in the bulk of the Further Amended DA, which results from the additional level 8 and the increased floor plate and reduction in setback of level 7, as well as the "blade" walls. 37The experts agree that the three dimensional comparison views illustrate the change in the bulk of the building between the Approved DA and the Further Amended DA. I accept the evidence of Ms Morrish and Mr Ardlie that the change is unacceptable. The Approved DA permits greater massing towards Cooper Street and Parramatta Road. The Further Amended DA extends the additional massing into Hilts Road and closer to the adjoining development. The development in Hilts Road is recently constructed and therefore represents not only the existing context but also the desired future character of the immediate area. 388-14 Hilts Road is opposite the site and is developed with single storey dwellings. Under DCP 2002, a 4 - 6 storey residential flat building is permitted on the land. Under the Planning Proposal and Draft DCP, the land is required for acquisition for a public park. Either option does not justify the site being developed for a 9 storey development. 39Within the immediate context of Hilts Road, the additional massing proposed in the Further Amended DA is unacceptable and does not adequately respond to the existing or future context nor achieve the objectives of the controls. 40The application in its current form cannot be approved. However, given that the council does not raise concerns with the changes to the ground level and changes to the facades, an application which deleted level 8, unit 7.05 and the "blade" walls on levels 6 and 7 would be acceptable, particularly if the floor to floor heights of the residential levels were retained at 3.0m. 41As Talbot J stated in Waverley Council v C M Hairis Architects at [29], an application for changes to the Approved DA can be made, it may be complicated, inept, inconvenient, inappropriate or conceptually sound but that does not make it incompetent. A far simpler method would be for the changes to the Approved DA to be made by an application under s96 of the EPA Act.
Is the SEPP 1 objection well founded? 42Mr Chambers prepared a SEPP 1 objection for the Further Amended DA. He considered the purpose of the FSR standard is "to ensure that the bulk and scale of development is reasonable and appropriate in the context of the location of the Strathfield Triangle and its proximity to public transport and the Strathfield town centre". For the reasons discussed above, Mr Chambers considered that the bulk and scale of the development was reasonable and he concluded that: ...the proposed additional non compliance with the 2.5:1 FSR standard control does not undermine or frustrate the underlying objectives of the standard. The additional non-compliance also gives rise to no significant or unreasonable environmental impacts. On the grounds stated above, it is considered that strict compliance with the FSR standard is unreasonable and unnecessary in the circumstances of the case.
Findings 43Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states at [39] to [40] that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: "(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use and development of land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 44At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 45His Honour reviews other ways to establish that a standard is unreasonable or unnecessary which include at [47] that "the development standard has been virtually abandoned or destroyed by Council's own actions in granting consents departing from the standard". 46Under cl 61H(11) of CPSO, the maximum FSR for Precinct F is 2.5:1. Mr Chambers based his SEPP 1 objection for both the Approved DA and the Further Amended DA on the basis that the development met the objectives of the standard. 47Mr Drury submits that the FSR control for the Precinct has been abandoned as other developments in the Precinct already exceed the control and the site is the last one to be developed in Precinct F. However, there is no evidence to support this submission. Based on the information in the SEPP 1 objection for the Approved DA, the FSR for Precinct F would have been below 2.5:1 at the time the DA was approved. Whether individual sites exceed 2.5:1 is unclear and irrelevant, as the control is based on the FSR of the Precinct as whole. Even if the FSR of individual sites were relevant, the Approved DA has a FSR of about 3.25:1, based on its site area. 48The following table provides a summary of the FSR for the Approved DA and the Further Amended DA and the Precinct based on the evidence in the SEPP 1 objection for the Approved DA and the SEPP 1 objection for the Further Amended DA. I note that there are different figures in these documents, which make it difficult to provide an accurate summary, but they do not change the conclusions. Approved DA SEPP 1 objection March 2013 SEPP 1 objection December 2011 Approved DA Further Amended DA GFA 5840sqm 5541.3sqm 5949.2sqm FSR of Precinct F 2.57:1 2.583:1* 2.621:1* GFA of Precinct F ** 27670.16sqm 27810.12sqm 28219.25sqm GFA of Precinct F without Approved DA** 23,229.82sqm 22,268.2sqm FSR of Precinct F without Approved DA** 2.16:1 2.06:1 FSR based on area of the site*** 3.25:1 3.08:1 3.31:1
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: 08 April 2013
Al Maha Pty Ltd
Canada Bay City Council
(1999) 103 LGERA 94
(1999) 110 LGERA 262