Al Maha Pty Ltd v Strathfield Council

Land and Environment Court (NSW)|2017-02-07

Judgment

COMMISSIONER: This appeal was lodged against the refusal by Strathfield Council of development application 2015/020. The application seeks consent for the construction of additional levels of residential accommodation to an approved mixed use development. The subject site is located at 17-35 Parramatta Road and 5 Powell Street, Homebush.
The matter commenced by way of a conciliation conference held on 24 October 2016, agreement was not able to be reached between the parties and conciliation was terminated and listed for hearing. A number of objections were lodged to the development application, and at the commencement of the conciliation the objectors were given the opportunity to express their concerns. These objections form part of the evidence in the proceedings.
In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.
The issues for the Court to determine are: 1. The appropriate weight to be given to the NSW Governments 'Parramatta Road Urban Transformation Strategy' in the assessment of the development application; 2. Whether the requests for additional height and floor space are well founded and are worthy of support [Clause 4.6 requests]; and 3. Whether the impacts of the development are acceptable.

Existing Consent:

The approved mixed use development is configured into three towers as follows: 1. Building A: an 8 storey tower to the north of the site containing 94 residential units and 2 ground floor commercial tenancies; 2. Building B and Building C: are 8 storey towers on the southern portion of the site which are connected by a ground level podium containing 4 commercial tenancies and a totals of 127 residential units; 3. Four levels of basement car parking (344 spaces) with roof top communal open space.

The Application:

The development application refused by Council sought approval for the following: 1. Building A: and additional storey containing 13 additional units configured as: 5 one bedroom units; and 8 two bedroom units. 2. Building B: three additional storeys containing 24 additional units configured as: 9 one bedroom units; and 15 two bedroom units. 3. Building C: three additional storeys containing 24 additional units configured as: 9 one bedroom units; and 15 two bedroom units.
The development application also sought consent for the inclusion of a fire stair case to be located on the eastern elevation of Building A, the relocation of the approved communal BBQ area on the roof top of Building 8 (currently level 8) to the new roof top (level 9).

The Amended application:

At the commencement of the proceedings the applicant sought and was given leave to amend the architectural plans that form part of the application (Exhibit G). Leave was given subject to costs. An adjournment was provided for Council to review the plans, and for the experts to table an updated report (Exhibit 7).
The application before the Court seeks approval for the following: 1. Building A: and additional storey containing 13 additional units configured as: 5 one bedroom units; and 8 two bedroom units. 2. Building B: no change. 3. Building C: three additional storeys containing 24 additional units configured as: 9 one bedroom units; and 15 two bedroom units. 4. And approval of the amendments detailed in [13].

Planning Controls:

Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
The subject site has frontage to a classified road (Parramatta Road) and as such Clause 101 of State Environmental Planning Policy (Infrastructure) (SEPP Infrastructure) applies. Vehicular access to the site is provided via Powell Street, a local road and NSW Roads and Maritime Services provided concurrence to the development application. The appropriate construction method to ensure acoustic amenity is included in the draft conditions of consent, meeting the requirements of this policy.
Pursuant to SEPP Infrastructure the consent of NSW Trains (Railcorp) was also required. This was provided on 28 April 2015.
State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) applies to the site. Consideration was given to the requirements of Clause 7 of this policy under the original development application for the site (DA/2014/035). In providing consent Council confirmed the site was suitable in its current state for the purposes of constructing a mixed use development (Exhibit 3). The proposal is considered to satisfy the requirements of this policy.
In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement has been lodged by a registered architect at Squillace Architects.
In contest between the parties is the proposals achievement of the following principles of SEPP 65: Principal 2: Scale Good Design provides an appropriate scape in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of the existing development. In precincts undergoing a transition, proposed bulk and scale needs to be achieve the scale identified for the desired future character of the area. Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area, or in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities, and environmental quality. Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. Clause 30(2) of SEPP 65 requires that the design of the development is evaluated in accordance with the principles (cl30(2)(b)) and the Residential Flat Design Code (cl30(2)(c)).
The Residential Flat Design Code (RFDC) applies to the assessment of the proposal as the application was lodged on 13 March 2015, prior to the commencement of the current Apartment Design Guide.
Strathfield Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)): a) to achieve high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities and neighbourhoods in Strathfield, b) to promote the efficient and spatially appropriate use of land, the sustainable revitalisation of centres, the improved integration of transport and land use, and an appropriate mix of uses by regulating land use and development, c) to promote land uses that provide a wide range of employment, recreation, retail, cultural, service, educational and other facilities for the local community, d) to provide opportunities for economic growth that will enhance the local community, e) to promote future development that integrates land use and transport planning, encourages public transport use, and reduces the traffic and environmental impacts of private vehicle use, f) to identify and protect environmental and cultural heritage, g) to promote opportunities for social, cultural and community activities, h) to minimise risk to the community by identifying land subject to flooding and restricting incompatible development.
Pursuant to LEP 2012 the site is zoned B4: Mixed Use. The objectives of the B4 zone are as follows: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To facilitate mixed use urban growth around railway stations and transport nodes and corridors, commercial centres and open space. • To provide local and regional employment and live and work opportunities. The proposal is defined as a residential flat building and is permissible, with consent, in the zone.
The subject site is identified as Key Site 33 on the Key Site Map KYS_004 (KS Map) which forms part of LEP 2012. In relation to the subject site, the key site provisions operate to provide increases in height and floor space for sites that are amalgamated in accordance with the map.
Pursuant to cl 4.3A Height of Buildings, the maximum height for buildings on the site is 26m. The maximum variation proposed is for Building C which proposes a height of 36.66m. Building A has a maximum building height of 33.12m (Exhibit G). Therefore the proposal has a maximum height, above the control, of between 10.7 m and 7.1m.
The objectives of cl 4.3 Height of Buildings are: a) to ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area, b) to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area, c) to achieve a diversity of small and large development options. The proposals satisfaction of objective (b) is in contention between the parties.
Pursuant to cl 4.4A Floor Space Ratio (FSR) relates to the 'exceptions to FSR (Parramatta Road Corridor)' and since the site is designated a key site the FSR maximum FSR for buildings on the site is 2.7:1. The proposal has a maximum FSR of 3.09, which results in an exceedance of 2,423 sqm or 14%. (Exhibit G)
The objectives of cl 4.4 Floor Space Ratio are: (a) to ensure that dwellings are in keeping with the built form character of the local area, (b) to provide consistency in the bulk and scale of new dwellings in residential areas, (c) to minimise the impact of new development on the amenity of adjoining properties, (d) to minimise the impact of development on heritage conservation areas and heritage items, (e) in relation to Strathfield Town Centre: (i) to encourage consolidation and a sustainable integrated land use and transport development around key public transport infrastructure, and (ii) to provide space for the strategic implementation of economic, social and cultural goals that create an active, lively and people-orientated development, (f) in relation to Parramatta Road Corridor - to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor. The objectives relevant to the appeal are (a) (b) (c) and (f).
LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: (a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. Relevantly cl 4.6(4) states: Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained
Whether the Court accepts the applicant's clause 4.6 variation requests, in relation to the variation of the maximum FSR and height of the development, is a jurisdictional precondition to consent.
Clause 6.9 of LEP 2012 applies to the site and details additional provisions for development in Parramatta Road Corridor. The objectives of this clause are as follows: (a) to encourage a mix of commercial and residential land uses, (b) to encourage the integration of developments that require large floor areas with other land uses. . Sub clause (3) operates as a precondition and states: consent must not be granted for development unless the consent authority is satisfied that the development will contribute to: (a) the general mix of residential and non-residential land uses in the area, and (b) the vertical and horizontal integration of land uses in the area.
The following definition in the dictionary of LEP 2012 is relevant: building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. Gross floor area means gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
Strathfield Development Control Plan 20- Parramatta Road Corridor (DCP 20) applies. The relevant clauses for these proceedings are: 1. Cl2.3 Building height, in particular Figure 8 which designates a Parramatta Road/ Powell Street height limit of 6m, and a height limit of 3m to the northern half of the subject site. 2. Cl 2.10.2 Solar access requirements and in particular, sub clause1 (ii) which states: (ii) solar access to the windows of habitable rooms and to the majority of private open space of adjoining properties must be substantially maintained or achieved for a minimum period of 3 hours between 9.00am and 3.00pm at the winter solstice (June 22).
As a result of section 1.6.1 of DCP 20, the following sections of Strathfield Consolidated Development Control Plan 2005 (DCP 2005) are relevant to the application: 1. Part H - Waste Management and Minimisation 2. Part I - Provision of Off street Parking 3. Part L - Notification

Public submissions

The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with Strathfield DCP 2015. These submissions are summarised as follows: 1. Concerns in relation to the cumulative traffic impacts of the development, and its subsequent amendments, and the inconsistency of the assessment of current and future traffic conditions between NSW Roads and Maritime, the Council, and the WestConnex Delivery Authority. This inconsistency and the amendment applications are creating uncertainty on what the actual traffic impact will be; 2. The poor level of service already experienced at key intersections in proximity of the site; 3. Concern that the impact of the proposed Powell Creek off ramp from WestConnex and the impact of traffic noise on the proposed development is unable to be determined and has not been addressed; 4. Concern that overshadowing from the additional height sought will increase the existing overshadowing that will occur from the approved development. Approval of the amendment will result in an unreasonable impact and leave some units in 58 Parramatta Road receiving less than 3 hours of sunlight to habitable rooms and open space. The above submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

The Court heard expert planning evidence from Ms. Larissa Ozog, for the applicant, and Ms. Kerry Gordon for the Council. Architectural evidence for the applicant was provided by Mr Vince Squillace. The experts participated in a joint conferencing process prior to the hearing that sought to address the issues in contention. As a result of the conferencing process the experts prepared a joint report that was tendered as Exhibit 5. An additional joint expert report was provided to address the amended application [15] and was tendered as Exhibit 7.

Parramatta Road Urban Transformation Strategy

It is acknowledged by the planning experts, and the parties, that the area in proximity to the site is undergoing transformation from a low scale character of single detached dwellings and one to two storey non-residential development, to one of multi storey mixed use buildings and residential flat complexes.
It is also agreed that the planning context is likely to change further given the adoption of "Parramatta Road Corridor Urban Transformation Strategy" (the strategy) by the NSW Government in November 2016.
The subject site is contained within the scope of the strategy. Between the exhibition of the draft strategy and the final document, in what the applicant submits is an error in its finalisation, the nomination of the final preferred use of the site has been amended. In the final strategy the subject site is recommended to be zoned RE1 Open Space, with no designated FSR or height.
In summary the exhibited documents for draft strategy provided for the subject site: a land use designation of mixed use; a maximum height of 82m; and an FSR of 5.0:1. These building envelope controls are absent from the strategy. The applicants submits that the Court should rely on correspondence from NSW Urban Growth, who are responsible for the development of this strategy (Exhibit K), and the draft version to: 1. accept that the nomination of the subject sites as open space (with no height or FSR standard) as an error in the final strategy; and 2. when considering the strategy in relation to the current application, apply the 82m height and 5:1 FSR controls nominated in the draft strategy as applying to the site.
Of contention between the parties is the role of the strategy in the assessment of the development application before the Court. The strategy is supported by a direction from the NSW Planning Minister issued under s117(2) of the Act. Relevantly s117(2) states: (2) In addition to any direction which may be given under subsection (1), the Minister may direct a council: (a) to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and (b) without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and (c) to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council's performance in relation to planning and development matters. (2A) A direction under subsection (2): (a) may be given to a particular council or to councils generally, and (b) may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and (c) may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).
The relevant s117(2) direction is 7.3: Parramatta Road Corridor Urban Transformation Strategy (Exhibit 4). At paragraph [2] the document confirms that the Direction applies to the Strathfield Local Government Area, and relevantly at [3] it states: This direction applies when a relevant planning authority prepares a planning proposal for land within the Parramatta Road Corridor…
It is the submission of the applicant that whilst the s117 direction does not have statutory weight under s79C(1)(a) of the Act, it should be given weight as a non-statutory planning policy and provide support for the applicants requested variations to height and FSR under cl 4.6 of LEP 2012.
In the assessment of the application, the applicant seeks to rely on the fact that the strategic direction provided by the strategy, for the subject site and all the surrounding land, has radically increased heights and densities, only a relatively short time after the adoption of LEP 2012. It is this key circumstance that Mr To argues provides sufficient planning grounds to justify departure from the height and FSR standards and allow consent to be granted for the application.
In the alternative the Council argues that the role of the strategy is constrained to the exercise of planning functions in relation to the preparation of a local environmental plan (s117(2)(a)). Mr Seton submits that for the Court to take an alternative approach places undue weight on a document that has not been through: a fine grain assessment on a site by site basis; the appropriate statutory consideration; or engagement with the Council and the community.
In conclusion Council submits that, as identified in the s117 direction, the strategy should only be considered in the context of a planning proposal, not a development application such as that before the Court. Mr Seton argues that the potential of future changes to zoning should not be the focus for the Court's assessment of the cl 4.6 variation requests, or the merits of the application. He firmly puts that the assessment should be against the current controls, and their objectives, which Council argues are not met by the proposal.
It is the agreed evidence of the planners that any additional height or FSR proposed for the site or the precinct that results from the strategy would be implemented through a planning proposal. The strategies 'Implementation Tool Kit' (Exhibit D) identifies this process as follows: Future statutory planning processes will test and refine urban development and appropriate densities along the corridor. More detailed transport network assessments beyond the work presented in this report will be required to confirm the extent and density of urban development as part of future rezoning or development proposals.
It is the evidence of Ms Gordon that the current LEP controls in relation to height and FSR within the Parramatta Road Corridor are unlikely to remain in the medium to long term given the NSW Governments adoption of the strategy. However, she argues that it is not in the public interest to support significant variations to the height and FSR controls within the corridor under the provisions of the current LEP as to do so would undermine its integrity and the effectiveness of the Key Site provisions as an incentive for redevelopment.
In forming this view she relies on both the uncertainty of the implementation of the strategy, and the extended timeframe to achieve updated LEP controls. She argues that the direct application of the nominated heights and FSRs contained in strategy to the subject site is not appropriate. In preparing a Planning Proposal the Council would need to consider the suitability of individual sites for higher densities and buildings having regard to a number of impacts, including, but not limited to: streetscape; traffic; shadowing; provision of open space; setbacks and the like. The statutory process for such a change to the LEP would also involve engagement with the Council and the community. Supporting significant variations to the controls before this work is done would, in her view, result in cumulative and unacceptable impacts in relation to such matters as traffic and shadowing, amongst others.
In the alternative Ms Ogg argues that the proposal before the Court is in the public interest as: the site is a relatively large infill site; isolated by busy roads; the Westconnex on ramp; open space and bounded by low-activity uses. The site is highly accessible. Given the strategic outcomes sought in the strategy, and the above characteristics of the site it is her evidence that the site can afford additional density and height. Further it is her view that the proposal is in the public interest as it encourages a sustainable and economic use of the site that is a consistent, favourable and reasonable planning outcome at this point in time. She concludes that despite the non-compliance with the height and FSR controls, the high quality design outcome will establish a benchmark for future development, assist in providing additional housing and compliment the future strategic direction for redevelopment within this precinct.
Finally Ms Ogg argues that a common reason for Councils providing support for a variation or a departure from a control is because development anticipates changes in development standards that will occur in response to a new strategic direction. This is the case in these proceedings, and responding to a new strategic direction is a proper use of the flexibility inherent in clause 4.6.

Findings

The final strategy, and its supporting documents, identifies the subject site as having a proposed zoning of RE1: Public Recreation, with no designated height or FSR control.
If I was to accept Mr To's submission I would have to form a view that: 1. The strategy should be given significant weight in the assessment of the current application; and 2. In doing so effectively I would need to allocate an anticipated land use and associated controls to that site (based on the draft strategy document) that are not evident in the adopted strategy document.
In view of the submissions from the parties I have given consideration to the letter to the applicant from NSW Urban Growth (Exhibit K), and the statutory planning process that is required to be followed to translate the strategy into land use controls, as outlined in the Act. This strategic planning process will likely influence and shape the final outcome. The letter from Urban Growth includes the following statements: …the Strategy and Implementation Tool Kit do not rezone any land across the corridor including your property. … The Section 117 Direction issued by the Minister for Planning sets out when and how the Strategy and Guidelines should be considered. The S117 direction explicitly requires consideration of the Strategy when a planning proposal (rezoning) is being considered. The Strategy is not required to be considered when a DA is being considered.
In light of the evidence and submissions I prefer the position put by Ms Gordon and Mr Seton that at this time the role of the strategy is contained to the exercise of the planning functions in relation to the preparation of an LEP (s117(2)(a). I am not persuaded that either the strategy, or the draft strategy, is of relevance to the assessment of the current application before the Court.
In the course of the hearing evidence was provided by the planning experts that the applicant has a current planning proposal lodged with Strathfield Council in relation to the subject site. The experts agree that the making of this amendment is not imminent or certain. The conclusion of Ms Ogg's evidence however is Planning Proposal could be given some weight in the assessment of the current application on the basis it is in line with the stated direction of the strategy. Ms Gordon's evidence is that Planning Proposal before the Council should be given no weight as is not consistent with the DA before the Court, has no 'gateway approval' from the Council and has not been the subject of community consultation.
The planning proposal and it's supporting documents are not in evidence before the Court.
The consideration of the weight to be given to LEP amendments has been considered by the Court in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council 129 LGERA 195 and Maygood Australia v Willoughby City Council [2013] NSWLEC 142, with the approach outlined broadly as follows: (a) Consideration must be given to the draft or newly gazetted instrument; (b) The weight to be given to a draft environmental planning instrument depends upon the consideration as to whether the draft LEP is imminent and certain; (c) If the draft LEP imminent and certain, it is relevant to consider whether the proposed development will preserve the character anticipated by the zone in the draft plan and whether the proposed development will undermine the objectives of that zone.
The Planning proposal before Council is outside the parameters of this approach and as such I prefer the position put by Ms Gordon and have given no weight to the planning proposal.

Assessment of Clause 4.6 Variation request:

It is clear from a reading of cl 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the two development standards are justified. Ms Ogg provided a written request under cl 4.6(3) which seeks to justify the contravention of the FSR standard (FSR request).
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners on appeal exercising the functions of the consent authority have power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). I have applied these tests to the current application in the following.

Consistency with the zone objectives:

In considering the question of consistency in relation to the zone objectives, I have utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] as follows: the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible.
On the basis of the evidence of the oral evidence planning experts, and the variation request (Exhibit J), I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the zone in that it will: provide a mixture of land uses; facilitate mixed use urban growth in an accessible location; and provide local and regional employment and live and work opportunities.
Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

Consistency with the objectives of the standard in question:

The objectives of cl 4.4 Floor Space Ratio are: (a) to ensure that dwellings are in keeping with the built form character of the local area, (b) to provide consistency in the bulk and scale of new dwellings in residential areas, (c) to minimise the impact of new development on the amenity of adjoining properties, (d) to minimise the impact of development on heritage conservation areas and heritage items, (e) in relation to Strathfield Town Centre: (i) to encourage consolidation and a sustainable integrated land use and transport development around key public transport infrastructure, and (ii) to provide space for the strategic implementation of economic, social and cultural goals that create an active, lively and people-orientated development, (f) in relation to Parramatta Road Corridor - to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor. In the circumstances of the case objective (c) and (f) are the most relevant.

Objective C: Impact on amenity of adjoining properties

As shown within the site plan extracted at [10] directly opposite the subject site is an existing residential flat building at 58 Parramatta Road. The key contention between the parties, in determining if the development is consistent with or achieves objective (c) of the control, is the acceptability of the overshadowing impact to the units in 58 Parramatta Road.
In oral evidence the experts, based on the analysis in Exhibit 7, agreed that if the application was approved by the Court the impact on overshadowing at No 58 Parramatta Road is: 1. Four apartments will experience no change in solar access; 2. 18 of the remaining 27 (66.67%) of the apartments would not achieve two hours sunlight to their living area or balcony; 3. A number of apartments previously unaffected by the current approval will now have less than 2 hours. It is agreed that this impact is a result of the noncompliance with height, and the current configuration of the additional floor space.
My review of the material provided by the experts indicates that under the current approval currently greater than 85% of apartments in 58 Parramatta Road achieve greater than 3 hours sun light to their living rooms, all received 2 hours. An assessment of the information in relation to balconies indicates that under the current approval 80% achieve 3 hours to their private open space.
The FSR requests outlines the following to demonstrate the proposal is consistent with objective (c): The proposal development does not overlook any adjoining properties and the amended proposal has be sensitively designed to be setback from the main street frontage to reduce the bulk and scale of the additional levels. The proposal does not affect any view lines and complies with Councils car parking provisions. The additional floor space will contribute to some overshadowing impacts to 58 Parramatta Road however, solar access to the south apartments has been substantially improved by the removal of the three storey addition to Building B. The shadowing impacts allow for over 68.75% of living areas to units within the existing residential flat building at 58 Parramatta Road, to receive a minimum of 2 hours of solar access in accordance with the provisions of the Residential Flat Design Code and the Apartment Design Guide (SEPP No. 65 requirements). These provisions establish minimum expected solar access standards to be achieved by all new developments. They assist in guiding redevelopment to provide an acceptable level of solar access to living areas and private open spaces for apartments.
Ms Ozog's evidence in relation to the amenity impacts on the adjoining properties can be summarised as follows: 1. The proposal is designed in such a way that there is no additional overlooking created and the separation between the buildings is adequate and compliant with councils controls; 2. The proposal will increase overshadowing to No 58 Parramatta Road, located to the south. However given that the precinct is earmarked for higher density development amenity impacts is assumed. Given the context of increased heights and FSR the additional overshadowing is reasonable; 3. That a consideration of amenity needs to be broader than a consideration of solar access.
During her oral evidence, assessing the proposal against the wording of objective (c), Ms Ozog concluded that: 1. the application before the Court is not achieving the minimising of impacts on amenity when you consider the change in overshadowing impact to No 58 Parramatta Road; 2. The exceedance in FSR has not been placed on a location in the site that minimises or has no solar impact. 3. The consideration of amenity is broader that solar access, and that amenity should be considered wholistically; 4. The precinct is projected for increased development and solar impact will diminish as a result of the higher density living in proximity of 58 Parramatta Road; 5. Objective (c) of cl 4.4 Floor Space Ratio is not achieved by the proposal.
It is the evidence of Ms Gordon that the increase in heights and densities nominated in LEP 2012 was carefully planned having regard to the desired number of additional dwellings in the area, the streetscape character desired, impacts of the increased height and density, traffic impacts and the like. It is her evidence that the increase in floor space sought by the applicant has not been based on the same considerations. In particular it is her evidence concludes that the FSR request does not address the impact on adjoining properties, or quantify it within the request. It is her conclusion that the increased shadow impacts on 58 Parramatta Road are a direct result of the breach in the FSR and height controls and result in a significant loss of amenity to those affected apartments. As the impact is a direct result of the non- compliances and is unreasonable the variation sought is not well founded (Exhibit 5).
Ms Gordon's assessment of the impacts between the approved development and the proposed works is summarised below (extract of Exhibit 7): Balconies. Units 1, 2, 8, 9, 16, 24 and 32 maintain over three hours of solar access Units 3 - 7, 10-15, 17-23 have their solar access reduced to below 3hrs Units 25-31 currently have less than three hours sunlight and this in unchanged Living Areas Units 1-9, 15, 16, 23, 24, 31, 32 maintain over three hours of solar access Units 10-14, 17-22, 25, 27, 29, 30 have their solar access reduced to below 3hrs Units 26, 28 currently have less than 3 hours sunlight and this is reduced by the proposal The applicant's assessment provides a final solar amount projected for after the development, and a cumulative total for the living areas and balconies for the properties. I am satisfied after comparing the two exhibits, that the accuracy of the above is sufficient to determine the differential between the approved development and the proposal.
Ms Gordon concluded that, in her opinion, the location of the additional building mass on Building C, and the exceedance of floor space on the west of the site has the greatest impact. It is her evidence that alternative locations of the same floor space to the east or the rear of the site would not have the same impact on 58 Parramatta Road. She argues that as a result the development cannot sustain that it achieves objective (c) of the standard: to minimise the impact of new development on the amenity of adjoining properties. She does not agree that the upper storey setback provided in the proposal achieves this objective. It was her evidence that the same height located on Building B or A with the same additional FSR would have no impact. It is her analysis that due to the location of Building C, in relation to 58 Parramatta Road, it impacts solar access to the residential flat building in the middle of the day, and even one additional storey to that currently approved is likely to have an unreasonable impact.
The approach taken by Ms Gordon concurs with the submission put forward by Mr To who argues that objective (c) of the density control should be understood to not relate principally to minimising amenity impacts arising from height, but more appropriately from bulk and scale and the distribution of that floor space.
In oral evidence Ms Gordon agreed that the overshadowing is the only component of amenity that is impacted by the proposal. It was her evidence that to achieve the intent of object (c) the design approach to the site should seek to deliver any additional floor space sought in a location of lowest impact, and that this is not achieved by the application.
In contrast in the consideration of the reasonableness of the impact, Mr To places weight on the fact that the LEP controls already allow greater heights [42m] on neighbouring land, that a development of this magnitude is likely to overshadow 58 Parramatta Road. He argues therefore that Council accepted the solar impacts on this residential flat building at the time of the gazettal of LEP 2012.

Findings

In a town planning sense amenity can include: the physical landscape or streetscape; areas of vegetation and public and private open space for recreation, such as parks, reserves and gardens; urban design, including the scale and dominance of buildings; historic and cultural heritage; public views and outlooks; sunlight and breezes; privacy; physical safety; and the accessibility of places. Relevantly amenity also relates to the ability of people to lead their lives free of nuisances including those arising from noise, odour, vibration, dust, wastewater or waste products.
In addition to the expert evidence of the planners, members of the public provided evidence to Court in relation to the impact of additional residential development on the subject site [38]. Whilst these issues are not pressed by the Council, they form part of the impacts on the amenity of adjoining neighbours and as a result I have placed some weight on their concerns for traffic and overshadowing in the assessment of the application. The proposal, if supported by the Court, would provide for an additional 37 residential units of varying configuration which would have a direct nexus to the traffic and congestion issues raised by the objectors by increasing traffic movements.
The Court has established planning principles to assist when making planning decisions where policies are expressed in qualitative terms and allow for more than one interpretation. The objectives of clause 4.4, in particular (c)) are such controls. The relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141, extracted below: Criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: •How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? •How reasonable is the proposal causing the impact? •How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? •Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? •Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
Applying these principles in relation to overshadowing, and reviewing the analysis in Exhibit 7, leads to the following conclusions: 1. The existing approval results in: 1. in the balconies of 7 apartments, no longer receiving three hours, although they receive more than 2 hours. 2. The living rooms of 2 apartments, no longer receiving three hours. 1. The amendment results: 1. In the balconies of an additional 18 apartments, which currently receive more than three hours sunlight, no longer receiving three hours. 2. The living rooms of an additional 15 apartments, which currently receive more than three hours sunlight, no longer receiving three hours and 10 receiving less than 2 hours.
The provisions of DCP 20 require that solar access be 'substantially maintained or achieved for a minimum period of 3 hours between 9 and 3 at the winter' to the windows of habitable rooms and the majority of private open space of adjoining properties. Based on the table at [76] and the evidence of the experts this is not achieved by the proposal.
The amendment results in a material change in impact to the solar amenity experience by 58 Parramatta Road. That impact arises from an exceedance of the controls. Variations to controls that exceed such bonus provisions require greater scrutiny as they exceed the built form, and its associated impacts, that were foreseen and subject to consultation in the making of the LEP. In considering the differing evidence of the experts, and reviewing the evidence and architectural plans, I accept the evidence of Ms Gordon that through a change in site design, additional floor space may be able to be achieved for the proponent, that has a reduced the impact on the solar amenity of neighbours. I note than an assessment of the merits of such an option is not in evidence, and would be a matter for a future consent authority to consider. It has relevance in this matter due to the wording of objective (c) which seeks to minimise the impact of new development on the amenity of adjoining properties.
With the benefit of a site inspection, I accept the evidence of both planners that the breach of the FSR standard in the current development proposed does not meet the objectives of the standard. Applying the principles in Davies v Penrith City Council and the common meaning of minimise from the Macquarie Dictionary: to reduce to the smallest possible amount or degree; I conclude that, for the reasons outlined, the proposal is inconsistent with objective (c) of the FSR standard. The summary at [76 and 84] of the impact of this noncompliance is compelling. The FSR request references, in my view, incorrectly to two matters. The first is when reviewing incremental changes in solar impact to 58 Parramatta road the FSR request analyses the comparative merits of the current proposal against an the proposal refused by Council. This refused application not the appropriate benchmark. The comparison should be between the approved development under construction and the proposal for which consent is sought from the Court. Such a comparison allows a true determination of whether the objective is achieved. Secondly the FSR request concludes that the Residential Flat Design Code (RFDC) in establishing the minimum expected solar access requirements assist(s) in guiding redevelopment to provide an acceptable level of solar access to living areas and private open space areas for apartments (Exhibit J). Within the FSR request no reference is made to the applicable DCP control [refer 36(2)] which requires the substantial maintenance of solar access to the windows of habitable rooms and to the majority of private open space of adjoining properties for a minimum period of 3 hours for the relevant date. This control is not achieved by the proposal.
In relation to Mr To argument the LEP controls already allow greater heights in proximity to the site, I accept the evidence of Ms Gordon that any maximum height and FSR is not guaranteed and they would be subject to merit assessment. Therefore the potential for another site to potentially overshadow 58 Parramatta Road is not certain, and in the absence of any evidence quantifying to what extent this is the case I have not placed weight on this consideration.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is not consistent with with objective (c) of the FSR standard and, given the impacts on adjoining residents, the variation is not in the public interest. In forming this conclusion I note that a consideration of consistency with the objectives of the standard, as required under cl 4.6(4)(a)(ii), and a determination that the noncompliance with the standard would be in the public interest, is different to the consideration of achievement of the objectives of the standard under cl 4.6.(3)(a) where the applicant is required to demonstrate the objectives are achieved, despite noncompliance (see Moskovich v Waverley Council [2016] NSWLEC 1015 at [54]). I have concluded that the objectives are not achieved by the proposal.

Is it established that compliance is unreasonable or unnecessary?

Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually bee abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant has utilised the Wehbe test 1, that the objectives of the standard are achieved notwithstanding non‐compliance with the standard.
In the FSR request the applicant relies on the following to establish that strict compliance with the standard is unreasonable or unnecessary: •The reduction in floor space ratio has substantially minimised the amenity impacts, especially in respect of overshadowing and solar access provision to 58 Parramatta Road. •The proposed floor space increase is considered to be consistent with the maximum FSR that can be obtained by immediately adjoining key sites, which can accommodate maximum FSRs of 2.95:1 and 3.15:1 •The additional floor space is not considered excessive and is well distributed across the two buildings on site which creates more visual interest for the proposal •The non-compliance provides a better outcome for the reasons listed below, and therefore meets objective (b) of Clause 4.6. The better outcomes include •The development represents a sustainable development outcome and a skilful and attractive urban design solution for this gateway location •The proposal creates a transition in the built form and scale of the buildings on site which is consistent with the overall objectives and intention of larger, consolidated Key Sites in the precinct •The proposed additional floor space will not create or generate any additional amenity impacts in terms of overlooking, view loss and the proposal complies with the car parking provisions.

Findings

To establish strict compliance with the standard is unreasonable or unnecessary, the applicant has relied, in part on a comparison with a previous scheme [12] to justify a reduced impact by the proposal before the Court. This is not the appropriate benchmark for comparison; an assessment of impact should appropriately be between the proposal and a compliant scheme or a current consent. I am not satisfied that the written request adequately justifies that compliance with the FSR control is unreasonable in this instance. I therefore agree with the Council that the excess floor space, which results in a non-compliance with the standard and contributes to excess overshadowing, has not been justified. Based on the evidence presented to me, I cannot conclude that the test that the objectives of the standard are achieved notwithstanding non‐compliance with the standard is met.
Given the evidence, and the findings reached in the preceding, I find that I cannot be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP.

Are there sufficient environmental planning grounds to justify the variation?

The FSR request relies on the following justification to establish there are sufficient environmental planning grounds to justify variation of the standard: The proposal satisfies the objectives of the B4 Mixed use zone and the objectives of the floor space ratio listed under SLEP 2012. The non-compliance is inherent within the existing building and therefore there will be no additional impacts in terms of bulk and scale. Further to this, the built form does not result in any significant adverse amenity impacts to surrounding development that would necessitate a reduction in the gross floor area to minimise such impacts. A better planning outcome is facilitated as discussed above.
In the alternative Ms Gordon argues that the LEP key site provisions provided an incentive of additional height and FSR to the site to encourage the site to amalgamate or maintain heritage values. Broadly speaking the incentives were modulated to match increases in built form controls with the effort require to achieve the desired planning outcome. In her view an increase in the height or FSR above the LEP quantum would require significant, specific, justification to ensure that the values of the key site incentives are not eroded. Her concern is that the variation sought is equivalent to that provided in the LEP, which requires amalgamation, but the environmental planning grounds put forward are without a planning purpose.
In submissions Mr To for the applicant argued that as part of the existing consent lot consolidation has already been achieved and therefore the key site controls have no work remaining for the subject site. In contrast to Ms Gordon he argues that the consideration of the FSR request will not affect the availability of those incentives to others. In summary the applicant does not accept that the approval of the variation will affect the veracity of the controls and all of the objectives of the floor space control are met.
Mr To also submits the following additional environmental planning grounds for the Courts consideration: 1. By reference to the Key Site map the LEP provides a variety of heights which implies the Council is accepting of differences in height in the precinct. 2. The strategy and the controls that will follow will significantly increase heights and densities in the precinct. Moving towards what will apply in the future is a good planning outcome.
In contrast Mr Seton submits that the proper purpose of Clause 4.6 is to provide a better planning outcome than that which could be achieved by strict compliance. He argues that this is not the intent of the applicant in the FSR request. It is his submission that the applicant is seeking flexibility in order to increase yield at the expense of amenity, through the externalisation of impacts.

Findings

On the basis of the evidence I am not satisfied that there are sufficient planning grounds to justify the exceedance of the FSR standard. The anticipation of future increases in height and FSR on the site, as a result of the strategy, and the potential that another site, if redeveloped to the maximum controls, will have a similar overshadowing impact is not sufficient justification for flexibility. As detailed in [84 to 89] I do not accept that there are no significant impacts arising from the noncompliance. Following a review of the environmental planning grounds submitted to justify the variation, I find that they are not sufficient to warrant the provision of flexibility in the FSR control.
If the subject site is to benefit from an increase in height and or development potential the proper mechanism for that to occur is a planning proposal which allows the appropriate consultation with Council and the community. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441: The Court must assume a development standard in a planning instrument has a purpose… Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act.
As a result of this conclusion there is no power to approve the development and it is unnecessary for me to address the compliance of the proposal with objective (f) of the standard.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the preceeding reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application, and the application must fail.
As a result of the failure to meet the precondition, I am not required to determine the remaining clause 4.6 request to vary the height standard, or to assess the remaining merit issues in the proceedings.

Amber Light

In submissions the applicant foreshadowed that if the Court found the whole development was unsupportable, the Court may give consideration to approval of the additional levels on Building A only as an 'amber light approach' to the finalisation of the proceedings. Mr To makes this submission on the basis that the works on Building A are not contested by the Council, and warrant approval. In Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096 at [13] Senior Commissioner Moore defined the approach to an 'Amber light' consideration as follows: "Is the proposal as put to the Court capable of approval?" If the answer to that is no, I then proceed to ask myself the question, "Is the proposal capable of approval in some modified form, consistent with the original application? That is, does it get the amber light? And if so, what can be done to require those modifications?" If the amber light is satisfied, as in traffic lights, amber can change to green. If it is not possible to find an approvable development, then the answer must be the red light and the appeal refused.
Mr Seton argues that the Court has insufficient evidence to form a view under s79(c) of the acceptability or otherwise of this component of the development, if sought individually. In particular he argues that the Court lacks a cl 4.6 variation request that would support the separation of this component.
Given the finding that Court has no power to approve the development due to the failure of the cl 4.6 variation I am unprepared to do so for the following reasons: 1. I have no evidence before me indicating the quantum of variation to the standard that would arise from such an approach, nor a clause 4.6 variation request that particularises the argument for Building A, demonstrating that the breaches of the two development standards are justified; 2. At [94] and [100] I found that the current request provides: insufficient grounds to establish that compliance with the standard is unreasonable and unnecessary; and that there are sufficient planning grounds to justify the exceedance; and 3. I am not persuaded that the removal of the proposed changes to Building C, which form the greater component of the application, to leave only the changes in Building A is an application that is consistent with the original application (Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096).
As such I have not made directions in relation to these plans.

Costs

Given the changes to the proposal that occurred during the proceedings the respondent has asked the Court to make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application of is applicable (s97B of the Act). This was agreed to by the applicant.
Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
The council experts have undertaken significant assessment of these plans before the Court proceedings commenced. During the proceedings further amendments were made, making a proportion of this assessment and evidence redundant. The applicant argues that the amendments result in the cost of this assessment being "thrown away".
In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'.
The step one of the above was met on the first day of the proceedings. In relation to step two, it was agreed between Counsels that the amendment to the proposal, deleting a significant portion of the additional floor space and the whole of the additional levels to Building B, was not minor. For these reasons, and the material amendments required to the evidence on the solar impacts of the proposal, I am satisfied that the amendments made to the proposal are not minor for the purposes of s 97B of the Act.

Orders:

The orders of the Court are: 1. The appeal is dismissed; 2. Development application DA 2015/020 for the construction of additional levels of residential accommodation to an approved mixed use development at 17-35 Parramatta Road and 5 Powell Street, Homebush is refused; 3. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed; 4. The exhibits are returned with the exception of exhibits A, and 1. ……………. D M Dickson Commissioner of the Court 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: 03 May 2018

(1986) 130 LGERA 438

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (9)