Amflo Pty Ltd v Strathfield Municipal Council

(2) subject to subclause (3), on receipt of such a notice, the Council must acquire the land.

(a) land the subject of the notice referred to in subclause (1) is acquired by the Council, or

(b) land that has been acquired under this clause is developed for the purpose for which it has been acquired,

development may, with development consent, be carried out on the land for any purpose, if the Council is satisfied that the development will not adversely affect the usefulness of the land for the purpose for which has been reserved.

(4) in determining whether to grant consent to development under subclause (3), the Council must take into consideration:

(a) the effect of the proposed development on the costs of the acquisition, and (b) the imminence of acquisition, and (c) the cost of re-instatement of the land for the purposes of public open space, local roads and road widening. 13 On 23 March 2005 the owners of the site served a notice on council to acquire the land pursuant to cl 18A (1). The land has not been acquired by council or developed for the purpose of a local road and consequently under cl 18A(3) development for any purpose may be carried out on the land with consent. However, Mr Seton, for the council, submits that the proposal does not meet the test in cl 18A(3) that "the development will not adversely affect the usefulness of the land for the purpose for which it has been reserved" or satisfy the considerations in cl 18A(4) so the proposal cannot be approved. This was a key issue in the appeal. 14 Other provisions of relevance in SPSO are cl 32 which requires consideration of the aesthetic appearance of a proposed development when viewed from a main road, cl 41D which requires consideration of the suitability of the site for use as a shop, cl 41E dealing with traffic and parking criteria within a mixed use zone and cl 41F which provides urban design objectives for development within a mixed use zone. 15 Strathfield Development Control Plan No 20 - Parramatta Road Corridor Area (DCP 20) came into force on 9 February 2000. DCP 20 was amended (the amended DCP 20) on 1 October 2004 and 21 March 2005 to include a definition of attics, restrict their use for habitable purposes, increase minimum building depths, clarify deep soil landscaping and the provision of open space. These amendments were made after the development application was lodged. The parties agreed that in accordance with the decision of Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 that the version of DCP 20 in force at the time the application was lodged should be taken into consideration and that the amendments should not be given determinative weight but should also be taken into consideration. 16 The provisions of DCP 20 and the amended DCP 20 in contention were height, building width and landscaped area. 17 The height limit in Section 2.3 and Figure 9 of DCP20 is three storeys. The definition of storey does not include "an attic contained within the roof space of a building" as a storey. Attic is not defined in DCP 20. However, the amended DCP 20 defines attic as:

Attic means the space within the roof where the ceiling follows the line of the roof. 18 Section 2.5 in the amended DCP 20 provides that:

Council does not permit the use of attic space for any form of habitable purposes including living area, bedrooms, balconies, study or the like. Attic space can be used for storage purposes however no dormer windows are permissible. 19 Section 2.5 requires developments to 'conform generally with the Built Form guidelines" in Figure 17. In DCP 20 this specifies an average building width of 12m with cantilevered balconies to the street of 1.5m and enclosed rear balconies of 2.5m, giving an overall average building width of 16m and a width for basement parking of 18m. The amended DCP 20 increases the average building width to 16m, 20m overall and 22m for the basement. In both versions of the DCP a setback of 5m from the front boundary to the building line is specified. The objective for these controls are not stated although the relevant design principles include the requirement that consent will not be granted unless the consent authority is satisfied that:

2. the development is compatible with the predominant height, bulk, scale and future character of the locality.

5. the development is unlikely to adversely affect the amenity of any existing residential development in terms of overshadowing, privacy, excess noise, loss of views or otherwise. 20 Section 2.9 of DCP 20 specifies that the area of deep soil landscaping should be at least 35% of site area. The objectives of this control are stated as:

a) To provide adequate open space for the recreation needs of residents b) To ensure open space relates well to the living area of dwellings c) To maintain the park like vistas of the Council area generally 21 Section 1 of DCP 20 includes aims and objectives for the plan. Section 1.7 states that:

Where a proposed development departs from any controls contained in this DCP, the applicant must put forward reasons why particular controls should not be strictly adhered to and substantiate that the development can still meet the broad objectives of the plan. 22 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the comments of the UDRP and the Residential Flat Design Code (the Residential Code) must be considered. 23 Draft Strathfield Local Environmental Plan 2003 (Draft Plan) is a matter for consideration. The parties agreed that the plan was neither imminent nor certain and that its provisions relevant to the application were substantially the same as the existing planning controls outlined above. The issues 24 The key issues in this appeal are:

i) whether the proposal will adversely affect the usefulness of the land for its future use as a local road. ii) whether the height, width and landscaped area of the proposal are acceptable. 25 Mr L Fletcher, the Court Appointed expert provided planning evidence. I granted leave for Mr C White, for the council and Mr W Tillott, for the applicant to provide oral planning evidence. The experts gave concurrent evidence.

Proposed Local Road 26 Part of the site is reserved for a local road. The purpose of the road is to provide access to the properties which adjoin the site to the south to obviate the need for such access to be provided off Parramatta Road. The area reserved for this purpose on the zoning map to LEP 104 scales as about a 13.4m wide access handle to a cul de sac. The proposal provides an 8m wide strip a ground level with the basement car park below. 27 Council's main concern is the construction of the basement car park under the proposed road. No expert engineering evidence was proffered by either party but council's submission was that the engineering drawings for the road submitted by the applicant show insufficient depth between the surface of the road and the roof of the car park to accommodate services and pipes and lack of detail on the relocation of the existing sewer pipe. This matter had been raised in letters to the applicant requesting further design detail. In a letter to the applicant dated 20 August 2004 council's Senior Development Planner stated:

The Work Section does not support the construction of a carpark below a road that is to become the responsibility of Council, for the following reasons:

(assuming only the road surface/pavement is Council's) · The difficulty in determining at what level below the ground surface ownership/responsibility is Council's. Reference to Drawing No 03MB1212/SDO1, shows the beams from the car park roof within the road pavement. · Maintenance concerns. The difficulty with maintaining the road pavement, and the potential impact on the structure below. The same is true in reverse in terms of any required maintenance or problem within the carpark below. An example - if the road failed, determining the cause and who is responsible could be difficult and costly.

An acceptable solution is for there to be two separate underground carparks, with access from either side of the service lane.

As a consequence, the dedication of the service lane to the public is not supported at this stage. No reference has been made to the future maintenance of this section of the development. Therefore, prior to determining the matter, you are to advise the future status and advise as to the future responsibility of the proposed service lane.

Consideration of future strata subdivision of the development should be made for the 'lane' to be identified as 'common property'. Management plans shall address appropriate measures for the ongoing maintenance and repairs to be carried out by the future owners or 'body corporate' rather than Strathfield Council, should support for the proposal be given. 28 The applicant's submission was that the information requested by council has been provided and that there was sufficient detail to demonstrate that the land could be used for local road purposes. The applicant agreed to a deferred commencement condition which would require further detailed design of the road and responsibility for the road and its maintenance be the responsibility of the owner or future strata owners. 29 Mr Fletcher stated that the engineering aspects of the proposal were not within his area of expertise but that buildings under or over public roads were not uncommon and that: Providing any engineering aspects of the construction works are resolved, or adequate space is available to do so, there is no reason from the town planning viewpoint why part of a car park for a building cannot be provided below the surface of the proposed future local road. 30 Mr Fletcher considered that the deferred commencement consent was an appropriate manner to deal with the further detail requested by council. 31 Mr Seton submitted that as a deferred commencement is a consent the Court does not have the power to grant consent with the matters proposed to be dealt with in the deferred commencement conditions unresolved. He referred to Weal v Bathurst City Council & Anor [2000] NSWCA 88 where Mason P agreed with the decision of Talbot J in Rethmath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported) where his honour stated: The deferring of consideration of a matter which the consent authority is required to consider pursuant to s 90 of the Act is not something which is authorised by s 91AA. Section 91AA contemplates that some act must be performed before the consent operates. Specific works may be required as a prerequisite to the commencement of development. Those works may be on or off the site and either carried out by the applicant for development consent or a third party. The consent authority may require concurrence or confirmation from another authority or person, with the appropriate expertise or power, that the council's assessment of a particular aspect of the development is the correct one. Section 91AA is not, in my opinion, a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91. A condition that the consent is not to operate until the consent authority is satisfied as to any matter does not mean that the consent is not a final one. A deferred commencement consent is a final consent when it is granted, even though the date from which the consent operates must not be endorsed on a notice, as required by s 92(3)(a), until the applicant satisfies the consent authority as to the matters specified in the condition. Findings 32 I accept Mr Seton's submission that it is not appropriate to defer satisfaction of cl 18 A to a deferred commencement consent. However, in reaching this decision I note that Council's main concern about the proposed road is that it is over the basement car park and that clear requirements for the road have not been provided in response to the information submitted by the Applicant. The road should not be part of the application as it is to be provided by Council at some later date. However, I must be satisfied that the development will not adversely affect the usefulness of the land for the purpose for which has been reserved. For this to occur I need to be satisfied as to the location of the road, its width and its depth. 33 The location and width of the road reservation in LEP 104 is not dimensioned. Mr Seton submits that the reservation width is 13.4m, whereas the width of the proposed road is 8m. Council engineers did not raise the width of the road as an issue but conversely did not confirm that the lesser width and its location were acceptable. This is required as the proposed residential units extend into the reservation and would clearly have implications for the matters requires to be considered under cl 18A(4) (a) and (c). 34 In relation to the basement car parking, there is not planning reason why this should not be provided. The basement car park achieves an desirable planning outcome by limiting access to a single point off Powell Street. The evidence before me is that it is not feasible to provide a separate car park for Block A with access off the proposed road. It is not reasonable in the absence of any requirement in DCP 20 to require this site to be amalgamated with the adjoining site to the south. The logistics of maintenance and responsibility for the road can be dealt with through legal arrangements which can appropriately be dealt with a deferred commencement condition. I therefore find that the basement car park under the road is acceptable in principle. Council has raised concerns about the depth of the car park below the surface of the road which I understand relate particularly to the provision of the stormwater drainage pipe and the need for a long section to ensure that there is sufficient depth. This matter needs to be clarified prior to granting consent. 35 While I cannot grant consent in the absence sufficient information to satisfy cl 18A I do not consider it reasonable to refuse consent as the satisfaction of the clause is largely dependent upon council responding to the information provided by the applicant as to its requirement for the local road. Having found that the basement car park is acceptable I will allow the applicant the opportunity to provide further information required by council sufficient to determine that the location, width and depth of the proposed road will not adversely affect the usefulness of the land for the purpose for which it is reserved to satisfy cl18A(3). The information required by cl 18A (4) should also be provided.

Height, width and landscape area 36 The parties disagreed on whether the height of both Blocks A and B was acceptable. In relation to Block A, Mr White considered the six storey component on the corner of Park Road and Powell Street to be disproportionate to the narrow width of the allotment. He stated that the combined effect of the road reservation and width of this part of the site separated it from the eastern section of the site and that it was too narrow and too small to be developed in isolation to the height proposed. He considered that the six storey component would be highly visible from Parramatta Road and would appear too tall and too narrow with a blank south wall until such time as the adjoining site to the south was developed. 37 Mr Fletcher accepted that Block A would appear disproportionately high in the short term but considered this to be acceptable as it is:

consistent with the planning controls in DCP 20, in the longer term this building will form part of a group of buildings of consistent and compatible height and form when viewed from Park Road or Parramatta Road. 38 Mr Fletcher noted that DCP 20 identified specific sites where consolidation is required for redevelopment to occur but that this site was not so identified. In the absence of such a requirement he did not consider that the aesthetic appearance of the building was sufficient reason to warrant refusal. He also noted that the UDRP did not raise an issue with the appearance of the building. 39 The eastern part of Block A is four storeys. Mr Fletcher considers that most of the building would appear as three storeys except for a small four storey section which forms a transition between the six storey component and the remainder of Block A and Block B. Mr White considered that Block A would appear as a part four storey building that is separate to Block B and was an overdevelopment of its site. 40 In relation to Block B, the key disagreement between the parties was its height, particularly when viewed from Powell Street. Mr Tillott and Mr Fletcher considered that the building would appear as three storeys. Mr Fletcher stated that:

Both the third and forth level of the building are set back from the front and rear line of the lower levels and that the forth level is contained within the general roof form, albeit that the roof is set at a slightly higher level than might otherwise be the case. 41 Mr Fletcher recognised that when viewed from the south east, Block B would appear as four storeys but that the primary viewing point was from Powell Street and due to the "clever design" the building would appear as three storeys. As the area is undergoing significant redevelopment he considered the proposed height to be acceptable. 42 Mr White considered that the external wall facing Powell Street was higher than for a three storey building, the "attic level" is not an attic contained within a standard roof pitch, the southern elevation is clearly four storeys and consequently the bulk of the building is not typical of a three storey building. 43 The experts did not agree on whether the width of Block B was acceptable. DCP 20 specifies an average building width of 16m (including balconies) and a basement width of 18m. The amended DCP 20 permits an average width of 20m (including balconies) and a basement width of 22m. The maximum width of the proposal at basement, ground and first floor level is 21m (including balconies) which reduces to a minimum of 19m (including balconies). The maximum building width of level 2 is 18m and level 3 is 13m. 44 Neither the purpose of the control nor the method of establishing the average width is specified in DCP 20 but it is clear that the height of the building does not comply with the numerical control in either DCP 20 or the amended DCP 20. 45 Mr Fletcher and Mr Tillott found the building width to be acceptable as it generally conforms to the average building width in the amended DCP 20 and is consistent with the pattern of development occurring in the area. They considered that the proposal provides a high level of internal amenity and energy efficiency and sufficient deep soil planting. 46 Mr White's main concern with the building width was that a reduced width would enable more deep soil planting to be provided to the south of the development. Mr White also considered that the units in Building A, which faced south, had poor solar access and amenity. 47 In relation to solar access, Mr Fletcher considered the majority of the apartments achieved excellent solar access as the double storey apartments enabled the living areas to face north. He did not agree that less building depth would enable greater deep soil planting. In his opinion the amount of deep soil planting was determined by the width of the carpark. He stated that double sided car parking requires a minimum width of 18m and that the building was not much wider and a reduction would achieve little. 48 The development provides about 21.8% (or 23.7% if the road reservation is excluded from the site) of the site as deep soil planting. The DCP requires 35%. Mr Fletcher considered the amount of deep soil planting to be adequate. He stated that the control needed to be interpreted with some flexibility as:

The DCP in Figure 9 specifies particular built form outcomes than in essence involve buildings of various heights generally around the perimeter of the street block with the internal areas at the rear of those buildings provided as open landscape areas.

Given this scenario, the ability of individual sites to achieve the 35% of deep soil guideline will be affected by both the shape of the sites and whether or not they form a corner site. In my view, it is clear from Figure 9 that corner sites in isolation will be unable to achieve strict compliance with 35% requirement. Similarly, irregular shaped sites that are narrower at the rear will also have difficulty achieving strict compliance. Conversely, regular shaped mid block sites, or sites that a wider in the rear are likely to provide more deep soil areas than the 35% design guideline.

In the present case, the subject property is affected by both constraints 49 Mr Fletcher recognised that the area of common open space would be less than required but considered it was offset by the generous areas of private open space together with the high level of amenity of the units. 50 Mr White was particularly concerned that once the local road was constructed Block A would be separated from the area of deep soil open space to the south of Block B. He considered that the common open space to the south of Block A (this is not included in the open space calculations as it is over the basement and therefore not deep soil) provided poor amenity and that Block A would effectively have no open space. In his opinion, this was a further reason why Block A should not be developed in isolation but as part of an amalgamated site to the south.

Findings 51 DCP 20 provides little guidance as to the specific purpose of the controls. The site is within an area which is undergoing extensive redevelopment. The objectives of the DCP in relation to streetscape are:

14. To provide direction and certainty of outcome in relation to built form to ensure: - A coherent street scale - Compatibility with the existing fabric 15. To enhance the character of individual streets in the Corridor Area by appropriate landscape design and coordinated built form 52 To vary the controls in the DCP it must be demonstrated that:

the integrity of the overall Masterplan will not be compromised and that urban design and economic development advantage would result from the proposal whilst still achieving the overall objectives. 53 The six storey part of Block A complies with the planning controls and there is no requirement for the site to be amalgamated for it to be developed. I do not consider that the height of the building is disproportionate to its width. The relationship of the approximately 13m Park Street frontage to the 18m height of the proposal does not result in a building that would appear too tall and narrow. The blank wall to the south is a negative feature but the controls envisage further development occurring to the south along Park Street therefore in the long term the blank façade and the building will adjoin other development of similar height and form, I find that the aesthetic appearance of the building when viewed from Parramatta Road is acceptable and consistent with the long term planning objectives provided by DCP 20. 54 From Park Street the development site runs in an easterly direction along the southern side of Powell Street to the point where Powell Street changes direction and turns to the south. Consequently the development will occupy the whole of this section of Powell Street. While it must respond to the development on the other side of the street it will not adjoin other buildings until it turns the corner. The streetscape is therefore formed by this development and the development on the opposite side of the street. The key question is whether the development is compatible with this context. 55 The section of Block B on the southern side of Powell Street will appear as a 3 storey building when viewed from Powell Street. While not strictly an attic space as the height of the screen wall from which the curved roof springs is 4m. The third and fourth floor are set back 4m to 5m respectively from the screen wall and are within a building envelope that would be set by a 3 storey building with a pitched roof. The overall height and appearance is that of a 3 storey building of contemporary design and I find that it is consistent with the height of development anticipated by the planning controls and compatible within its context. From the south this part of Block B would appear as 4 storeys, however, the upper levels are set back about 2.5m and are consistent with a building envelope of a 3 storey building with a pitched roof. I note that there is no elevation from the south and that this should be provided. 56 Block A will appear as a part 4 part 6 storey building. The 4 storey component is set back only one to two metres but is designed to compliment and is compatible with the height of Block B. It forms an appropriate transition between Block B and the six storey component of Block A. However, detailed elevations which show fenestration should be provided. 57 The part of Block B where Powell Street turns the corner will also appear as a 4 storey element particularly when viewed from the south east. Again no elevation is provided, however, it is a blank façade built to the boundary extending 4 storeys. This façade will adjoin future 3 storey development to the south east and it is therefore important that there is consistency between this development and adjoining development. There appears to be no justification for a 4 storey component in this location and the 4 storey component to the south of the entry foyer should be deleted. 58 The amended DCP 20 does not permit attic spaces to be used for habitable purposes. The purpose of this amendment is not articulated within the DCP. The requirement is included under section 2.5 dealing with roof forms. I do not understand how the use of attic space is relevant to this section as it relates more to density or height considerations. The proposal clearly meets the objectives of the roof form control and as stated above is of appropriate height within its existing and future context. 59 In relation to the building width of Block B, the purpose of this control is not articulated in DCP 20. The Residential Code refers to building depth and states that: Control over building depth is important as the depth of a building will have a significant impact on residential amenity of the building occupants. In general, narrow cross-section buildings have the potential for dual aspect apartments with natural ventilation and optimal daylight access to internal spaces. 60 The Residential Code states that the objectives of the building depth control are: · To ensure that the bulk of the development is in scale with the existing or desired future context · To provide adequate amenity for building occupants in terms of sun access and natural ventilation · To provide for dual aspect apartments. 61 The Residential Code specifies that the maximum internal building width should be 18m. 62 The proposed development clearly meets the objectives and numerical requirements of the Residential Code. The maximum internal depth of the proposal is 18m. DCP 20 and the amended DCP 20 require the building to "conform generally" with the Built form Control. In this regard, the overall depth generally conforms to the numerical controls in the amended DCP and is therefore consistent with the desired future context likely to result from the implementation of the amended DCP 20. There is no established existing context adjoining the site to which it must relate. The majority of the units are dual aspect and provide excellent amenity with north facing living areas and cross ventilation. Further a reduction in building width will not achieve material benefits in the amount of deep soil planting provided due to the constraints imposed by the car parking width.

63 In relation to deep soil planting I accept Mr Fletcher's reasons as to why the proposed amount is acceptable despite its non compliance with the control. The desired built form objectives, the corner location, the depth of the site and the road reservation place competing objectives and constrain the amount of deep soil planting to be provided. However, the site cannot be assessed in isolation but as part of the overall Masterplan in DCP 20. The Masterplan indicates that the open space to Block A and Block B are to be contiguous with the open space of adjoining future developments. The overall objectives of the Masterplan to have buildings generally around the perimeter of the street block with the internal areas at the rear of those buildings provided as open landscape areas will still be achieved. The integrity of the Masterplan is not compromised by the proposal. The area of deep soil planting provided achieves the objectives of the control in DCP 20. Although less than the 35% control the proposal complies with the other requirement of the control in that it is planned to allow contiguous deep soil areas, and planned to allow planting of large trees.

Conclusion 64 Having considered the evidence, I am not convinced that the proposal, notwithstanding some deficiencies, warrants refusal at this time. 65 I propose that the deficiencies identified in the Judgement should be the subject of further evidence and consideration by the parties so the proposal can be further considered by the Court. 66 The areas that require further information and consideration can be summarised as:

i. On the basis that the basement car park under the proposed road is acceptable, further information to satisfy that the location, width and depth of the proposed road meets the requirements of cl 18A(3) and (4). ii. Amended plans which incorporate the following information · the changes required by deferred commencement condition 1 · the deletion of the fourth floor south of the entry on Powell Street. · elevations including details of the fourth floor on Block A and B. · elevations of the proposal from the south and south east. · Landscaped treatment of the road reservation . · Dimensions 67 I direct the parties to file an agreed timetable to address the above matters.

      Annelise Tuor
      Commissioner of Court

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