Judgment
1COMMISSIONER: This is an appeal against the refusal by Canada Bay City Council of Development Application No 327/2013 for the demolition of all existing improvements and the construction of a mixed retail/residential development at 162-166 Victoria Road and 69 Renwick Street, Drummoyne (the site).
2The proposed building comprises 2 ground floor retail tenancies and a café to Victoria Road and 22 residential units above the retail tenancies over 4 levels. A basement car park for 48 vehicles is provided with access over 69 Renwick Street.
3The council maintains that the application should be refused as:
the height is excessive and the variation to the height standard cannot be supported,
the floor space is excessive and the variation to the floor space ratio (FSR) standard cannot be supported, and
the proposal will unacceptably impact on the nearby heritage conservation areas, and
unacceptable noise from vehicles using the access driveway.
4The contentions relating to acid sulphate soils, additional traffic in Renwick Street and the potential impact on existing trees in adjoining properties were not pressed by the council following the submission of additional information. The potential overlooking and loss of privacy to the residential properties in Renwick Street from balconies and windows in the proposal were also not pressed by the council following the submission of additional details on screening devices although the screening devices raised additional concerns by the council over the additional bulk when viewed from the adjoining residential properties in Renwick Street.
5A number of residents provided evidence on the site inspection and supported the contentions raised by the council. Additional concerns raised by the residents and not raised by the council relate to:
overlooking and loss of privacy,
noise from balconies adjoining the private open space of adjoining residential properties,
inadequate on site car parking, and
fumes from vehicles using the access driveway.
[2]
The site
6The site comprises five allotments being Lots 14, 15 and 16 in DP 862, Lot 117 in DP 135482 and Lot 203 in DP 1059556. The Victoria Road portion of the site (162 - 166 Victoria Road) is rectangular in shape and has a frontage to Victoria Road of 30.485 m and side boundaries of 30.48 m with an area of 929.1sq m. The Renwick Street part of the site (69 Renwick Street) is generally rectangular in shape and has a frontage to Renwick Street of 9.545 m with an area of 307.7sq m. The total site area is 1236.8sq m.
7The site has a cross-fall from the northern to southern side boundaries of approximately 1.5 m and a cross-fall from the front to rear boundaries of approximately 2 to 3 m.
8The site contains a part 3 storey/part 4 storey commercial building. The building was used as the Drummoyne RSL Club but is currently vacant. The Renwick Street portion of the site has a vehicular crossing from Renwick Street, which provides access to a hard paved area at the rear of this building and then the basement carpark. The rear part of the Victoria Road portion of the site adjoins the rear boundaries of 71 and 73 Renwick Street and part of the rear boundary of 67 Renwick Street.
9Development in the surrounding area reflects the zone boundary with the Victoria Road portion of the site forming part of the retail/commercial development along Victoria and the Renwick Street portion of the site adjoining a variety of one and two storey detached and attached dwellings.
[3]
Relevant planning controls
10The site falls within two different zones. The Victoria Road portion of the site is zoned B4 Mixed Use and the Renwick Street portion of the site is zoned R2- Low Density Residential under Canada Bay Local Environmental Plan 2013 (LEP 2013). The proposed development is a permissible use in the B4 zone. A mixed use development is a prohibited use in the R2 zone however the land can be used for the proposal by way of cl 8 in Sc1 Additional permitted uses, as it is "development for the purpose of a car park in association with the adjoining development at 162-166 Victoria Road, Drummoyne".
11Clause 2.3(2) states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
12Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The Victoria Road portion of the site has a maximum height of 12m and the Renwick Street portion of the site has a maximum height of 8.5m. As the Victoria Road portion of the site exceeds the maximum height, a written request was provided that seeks to support the variation of the development standard in accordance with cl 4.6(3).
13Clause 4.4(2) provides that the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The Victoria Road portion of the site has a maximum FSR of 2:1. The parties agreed that there was a breach of the FSR requirement but disagreed on the extent of the breach. A written request was provided that seeks to support the variation of the development standard in accordance with cl 4.6(3).
14Part 2 of Sch 5 Heritage conservation areas is relevant as the site is in the vicinity of the Victoria Road Retail Heritage Conservation Area (the Victoria Road HCA) that includes contributory items at 168 - 180 Victoria Road. The Renwick Street portion of the site is within the Birkenhead and Dawson Estates Heritage Conservation Area (the Birkenhead HCA) and extends along Renwick Street in both directions from the site.
15Clause 5.10(4) provides that:
The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
16Clause 5.10(5) provides that:
The consent authority may, before granting consent to any development:
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),
require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
17Canada Bay Development Control Plan 2008 (DCP 2008) applies. Part 4 provides requirements for Heritage, Part 7 provides requirements for Mixed use areas and neighbourhood centres and Part 8 provides requirements for different forms of residential development, including residential flat buildings.
18Clause 4.4 provides requirements for Development in and in the vicinity of Conservation Areas.
19The Statement of Significance for the Victoria Road HCA states:
This Victoria Road, Drummoyne Retail Conservation area is a very good example of early twentieth century retail development, incorporating Edwardian, Classical Revival and Art Deco designs. With the Sutton Place shopping centre and the hotel on the opposite corner, these buildings create a significant townscape at this very busy and prominent corner. All of these buildings form a gateway to Drummoyne and establish a strong and key character. The survival of cantilevered verandahs on a number of the buildings adds particular interest to the group.
20The Statement of Significance for the Birkenhead HCA states:
The Birkenhead and Dawson Estates Conservation Area is of high heritage significance for the very intact and complete streetscapes reflecting the intense development of Drummoyne in the late nineteenth and early twentieth century. The styles of housing clearly reflect the pattern of subdivision of the area. This Conservation Area includes extensive groups of Federation and Edwardian housing interspersed with Victorian cottages and some larger two storey homes. The narrow allotments and generally consistent scale of development create a cohesive and interesting streetscape.
21State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).
[4]
Can the variation to the height standard be supported?
The requirements
22Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that 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.
(4) 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
23The objectives of the height standard are set out in cl 4.3 (1) and state:
(a) to ensure that buildings are compatible with the desired future character in terms of building height and roof forms,
(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.
The extent of the breach of the height standard
24The Dictionary to LEP 2013 defines building height as:
building height (or height of building) means the vertical distance between ground level (existing) and 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.
25The extent of the breach of the height standard was shown diagrammatically on plans in Exhibit E. As the site slopes, the breach of the 12m standard varies over the building. At the Victoria Road elevation, the breach on Level 3 varies between 2.667m and 1.254m and includes the parapet and part of the residential accommodation on Level 3. At the rear elevation on the rear of the Victoria Road portion of the site, there is general compliance. The breach on the western elevation of Level 3 is around 1.2m and the eastern elevation breach of Level 3 varies between around zero to 2.7m. The whole of Level 4 is above the 12m standard with the maximum breach being around 5.5m. The lift overrun is the maximum height of the proposal where the breach is around 7m.
The written request
26The written request was prepared by the applicants town planner, Mr David Furlong, pursuant to cl 4.6(3) and states that a variation to the height standard can be supported because;
aims (b), (c) and (d) in cl 1.2 of LEP 2013 are satisfied in that the proposal achieves a balanced outcome between the commercial and residential land uses, will be one of quality and promotes walking and public transport use,
a better planning outcome will be achieved through the reinvigoration of a depressed commercial site,
a greater setback to the Renwick Street properties can be achieved,
the amenity impacts to the Renwick Street properties are minimised,
the extent of the breach is not readily evident from the public domain,
it is consistent with the flexibility allowed for other developments within the area, and
the design respects the existing vertical street pattern.
27In relation to the height standard objectives, the written request states that the proposal fits within the overall purpose of objective (a) of the height standard as it steps the upper level to provide the widest possible separation from the residential properties in Renwick Street and does not dominate the neighbouring heritage conservation area. The "desired future character" is addressed through pt 7.7.1 of DCP 2008 that contains a description entitled "The future character of Victoria Road". In this regard, the written request states that the proposal is compatible with the surroundings and does not dominate the streetscape. The non-compliant part of the building is set well back and not readily visible from the public domain in Victoria Road. Also, the benchmark for the desired future character is more closely reflected in the flexibility allowed for other developments within the area in relation to height.
28In consideration of objective (b) of the height standard, the written request states that the built form of Level 4 is set well back from the lower levels on all sides. The proposal results in a reduced shadow when compared to the existing building at certain times of the day and at other times there is no additional impact. In terms of visual impact, the non-compliant part of the building is set well back and not readily visible from the public domain in Victoria Road.
29The objective in the second dot point for Zone B4 is addressed in the written request where it states that the variation is considered acceptable as it is consistent with other recent developments in the area, respects the vertical street pattern and provides privacy for adjacent residents.
The council's evidence
30Mr Peter Giaprakis, a town planner, provided evidence from the council. He states that the variation to the height standard is not well founded for the following reasons:
the proposal will not achieve a better planning outcome,
a better planning outcome will be achieved by a complying development,
the proposal is contrary to cl 1.2(2)(b) of LEP 2013 as it will not maintain and enhance existing amenity, particularly the scale of the proposal with its interface to the residential properties to the rear. This will cause privacy and noise concerns with an unacceptable relationship of scale to and separation from the low density residential properties adjoining at the rear,
[5]
Can the variation to the FSR standard be supported?
The FSR objectives
68The objectives of the FSR standard are set out in cl 4.4 (1) and state:
(a) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,
(b) to provide a suitable balance between landscaping and built form,
(c) to minimise the effects of bulk and scale of buildings.
The extent of the breach of the FSR standard
69Relevantly, cl 4.4(2) and (2A) state:
(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
(2A) Despite subclause (2), the maximum floor space ratio for a building does not apply to multi dwelling housing or a residential flat building on land identified as "Area 1" on the Floor Space Ratio Map
70Clause 4.5 Calculation of floor space ratio and site area relevantly states:
.
(2) Definition of "floor space ratio"The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
(3) Site areaIn determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:
(a) if the proposed development is to be carried out on only one lot, the area of that lot, or
(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.
(4) Exclusions from site areaThe following land must be excluded from the site area:
(a) land on which the proposed development is prohibited, whether under this Plan or any other law,
(b) community land or a public place (except as provided by subclause (7)).
.
.
(6) Only significant development to be includedThe site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
71The parties disagreed on the extent of the breach of the FSR standard although there was agreement that the 2.0:1 FSR standard was breached. The difference between the parties was whether the Renwick Street portion (or R2 zoned land) of the site should be included in the calculation. If included the FSR is 2.45:1 or if it is excluded, the FSR is 2.87:1.
72Mr Hemmings SC submits that R2 zoned part of the site must be included in the site area as it does not fall within cl 4.5(4)(a). This area is not "land on which the proposed development is prohibited" as it is able to be used, by way of cl 8 in Sc1 Additional permitted uses notwithstanding a mixed use development is prohibited in the zoning table for the R2 zone.
73Mr Jackson disagrees and submits that even if Mr Hemmings is correct, the R2 zoned part of the site must be excluded in the calculation of site area because it is a lot on which the development does not contain significant development, pursuant to cl 4.5(6). This area contains only a access driveway and garbage bin storage compared to the ground floor retail tenancies, café, all residential units and basement car park that are located on the B4 zoned land.
74As I agree with Mr Jackson that R2 zoned part of the site must be excluded in the calculation of site area as it satisfies the exclusion in cl 4.5(6), it is not necessary to make any findings on cl 4.5(4)(a). It follows that the FSR is 2.87:1 although my findings on the variations to the height and FSR standards would not change even if I accepted the applicants FSR of 2.45:1.
The written request
75The written requested addressed both the height and FSR variations although it addressed the two standards separately in places. In response to the FSR objectives, the written request states that the building is compatible with the bulk and scale of the desired future character of the locality (objective (a)), there are no requirements to provide landscaping in commercial zones (objective (b)) and there are no unreasonable amenity impacts on adjoining lands (objective (c)). On this basis, the objectives are satisfied.
The council's evidence
76Mr Giaprakis adopts the same approach for the variation to the FSR standard as he did for the variation to height standard. He states that the amount of floor space results in a building with unacceptable bulk, scale and intensity that despite the measures to address direct overlooking to the properties in Renwick Street; the bulk, scale and intensity issues remain and cannot be addressed without a reduction in floor area. Consequently, Mr Giaprakis maintains that the objectives (a) and (c) relating to bulk and scale are not satisfied.
The assessment framework
77The assessment framework is set out in par 33.
The zone objectives
78As stated previously, the zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the FSR standard is appropriate. For similar reasons to those expressed about the height standard, I do not accept that it can be reasonably argued that the proposal is inconsistent with the second objective of providing "a mixture of compatible land uses".
79I also accept that there is no inconsistency with the second objective for similar reasons to those expressed about the height standard.
80Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.
The FSR standard objectives
(a) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,
(b) to provide a suitable balance between landscaping and built form,
(c) to minimise the effects of bulk and scale of buildings.
81There is a degree of overlap in the evidence on the height and FSR variations because they are interrelated, in that the proposed floor area above the 2:1 FSR standard manifests itself in the additional height above 12m. Many of the reasons why the proposal is in consistent with the height objectives are equally applicable to the FSR objectives.
82For objective (a), I agree with Mr Giaprakis that the building has unacceptable bulk and scale when viewed from Victoria Road compared with the desired future character of the locality. The additional floor area manifests itself in the additional height that is inconsistent with the form of development anticipated for the site through the numerical planning requirements and its relationship with the Victoria HCA and the Birkenhead HCA.
83For objective (c), the development does not minimise visual impact on the adjoining and nearby properties in Renwick Street largely because of the minimal setbacks and the height to the building where it adjoins these properties. This results in an unacceptable and overbearing appearance from these properties due to the inadequate transitional building heights and setbacks. The inadequate setbacks and height are principally the direct result of the amount of floor area sought in this application.
84Pursuant to cl 4.6(4)(a)(ii), I find that the proposal is inconsistent with objective (a) in that the building is not "compatible with the bulk and scale of the desired future character of the locality" and objective (c) in that the building does not "minimise the effects of bulk and scale".
Is compliance with the development standard is unreasonable or unnecessary?
85I do not accept that the applicant has justified the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case for the reasons set out in pars 81 to 84.
Are there sufficient environmental planning grounds to justify contravening the development standard?
86For the reasons in pars 81 to 84, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.
[6]
Impact on the heritage conservation areas
87I have previously found that the proposed development has an unacceptable impact on the significance of the Victoria HCA and the Birkenhead HCA because of the height and its visual prominence from these areas. Pursuant to cl 5.10(4), I am satisfied that effect of the proposed development on the heritage significance of the conservation areas concerned is sufficient to warrant the refusal of the application for this reason alone.
88Mr Brooks and Mr Moore also addressed the design of the building and whether it was acceptable in its heritage context. Mr Brooks states that the building is acceptable because there is no logic in attempting to reflect the architectural character of the nearby early 20th century retail buildings in a new building erected some 100 years later. The various buildings in the Victoria Road HCA with the exception of the three pairs of attached shops have an individual and distinctive architectural character. Each contributes to the strength of the complex composition that makes up the Victoria Road HCA
89Mr Moore accepts that the new building should not emulate its neighbours in a stylistic sense but that any design should thoughtfully interpret those earlier buildings in a genuine effort to be constructive in the streetscape and context. Clearly open balconies would enjoy little amenity other than views and immediacy of contact with the street and are not appropriate. However, Mr Moore states that more can be done to better the contextual relationship that this building will achieve with the neighbouring Victoria Road HCA.
90There is some merit in the comments of Mr Moore and if there were no other reasons why the application should be rejected, further discussions and amendments would be appropriate to address the legitimate concerns of Mr Moore.
[7]
Noise
91Noise was addressed from a number of different perspectives by acoustic experts Mr Barry Murray for the council and Mr Ben White for the applicant. The areas addressed by the experts were firstly, noise from the proposed balconies to the residential properties in Renwick Street, secondly, internal noise that affects the occupiers of the proposed development and thirdly, noise from vehicles using the access driveway from Renwick Street on properties adjoining the driveway.
92On the first two areas, Mr Murray and Mr White accept that is not normal to assess and set noise criteria noise levels in backyards (or balconies) because this represents a normal domestic or urban relationship although Mr Murray states that a greater case can be made out for this given the intensification brought about by the proposed development. The experts however accept that a balcony would not often be used at night in a way that may cause sleep arousal at nearby residences. Consistent and regular noise from balconies is appropriately addressed through the Owners Corporation or police. I accept this conclusion.
93On the noise from vehicles using the access driveway, Mr White and Mr Murray agree that there are no applicable standards in the EPA Industrial Noise Policy or the EPA Environmental Noise Control Manual to address noise from motor vehicles on a residential driveway given that there are no commercial activities between 10pm and 7am. Mr Murray however states that it is still appropriate to assess the effect of noise on the adjoining properties, given the intensification, and based on his assessment the noise levels will exceed reasonable noise criteria and would likely cause sleep disturbance at night.
94I agree with Mr Murray that even though there are no identified noise levels for noise from vehicles using a residential driveway, it is not a situation that should be ignored because of the location of windows in 71 Renwick Street and the potential for residential vehicles to use the driveway 24 hours per day. While it is not a matter that would likely warrant the refusal of the application, some noise attenuation works should be provided to minimise any noise impacts.
[8]
Orders
95The orders of the Court are:
The appeal is dismissed.
Development Application No 327/2013 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 162-166 Victoria Road and 69 Renwick Street, Drummoyne is refused.
The exhibits are returned with the exception of exhibit 1.
G T Brown
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: 11 February 2014
the proposal does not reflect the desired future character of the built form in the locality and is therefore contrary to cl 1.2(2)(c) of LEP 2013,
the proposal will not reduce car use and is contrary to cl 1.2(2)(d) of LEP 2013 and the zone objectives for the B4 mixed use zone,
the scale at the rear has a zero set back to the basement parking with no opportunity for landscaping between the high density and low density zones, and
the proposed development is not in the public interest because it is not consistent with the objectives of standards or the objectives of development within the zones.
The assessment framework
31Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider 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)).
32In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:
The guiding principle, then, is that a 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 it is compatible.
33A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
The zone objectives
34The B4 zone objectives are:
· 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.
35The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. Notwithstanding this, I do not accept that it can be reasonably argued that the proposal is inconsistent with providing "a mixture of compatible land uses" (dot point one). The proposed land uses are appropriate in the B4 zone and there was no suggestion that retail and residential land uses are not compatible.
36While the council in their evidence and submissions suggests that the proposal does not "maximise public transport patronage and encourage walking and cycling" (dot point two) because the additional height, and subsequent additional floor area, provides the opportunity for additional people to be accommodated on the site than would be expected for a complying development that would have less floor area.
37I do not accept the council's position as the objective seeks principally "to integrate suitable business, office, residential, retail and other development in accessible locations". The emphasis of the objective is on an accessible location. The objective identifies the benefit of this accessible location as "to maximise public transport patronage and encourage walking and cycling". I do not accept that it can be argued that the site is not in an accessible location. Given that is has a frontage to Victoria Road it is difficult to conclude that the development does not "maximise public transport patronage". It was not clear from the councils evidence what was required to satisfy that part of the objective that seeks to "encourage walking and cycling". In any event, the relevance of this objective is questionable in the context of considering whether there should be a variation to the height standard. For these reasons, I find that the proposal is consistent with the second objective.
38Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.
The height standard objectives
39The objectives of the height standard are:
(a) to ensure that buildings are compatible with the desired future character in terms of building height and roof forms,
(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.
40In terms of objective (a), the question to be answered is whether the height of the proposal is compatible with the desired future character of the area. While the objective does not define the area that the desired future character is to be assessed against, I have adopted the visual catchment from both Victoria Road and Renwick Street although the wider area is also relevant because the Birkenhead HCA extends beyond the visual catchment in Renwick Street.
41Mr Furlong relies on pt 7.7.1 of DCP 2008 and the description in "The future character of Victoria Road" to establish the "desired future character" described in objective (a). This states:
The future character of Victoria Road:
+ emphasise the distinctive "busy" urban quality,
+ encourage mixed use development to create a thriving urban area with retail, residential and commercial uses;
+ improve the streetscape character by coordinated advertising policies; encourage street edge development to activate the street;
+ ensure that any alterations and additions respect the conservation and heritage values of the area; and
+ emphasise the western corner of Victoria and Lyons Road as a strong corner site to signify the gateway to Drummoyne
42While this description is helpful, I am not satisfied that it fully describes the desired future character of the area where the site is located. An important part of the desired future character is also the prescriptive controls that are used to determine the form of any development, particularly the 12m height and 2:1 FSR standards. Another important part of the desired future character is how any development on the site relates to the heritage conservation areas in the vicinity of the site as these areas form part of the visual catchment of the site.
43Based on an understanding of the plans, the relevant planning controls and the site inspection, I can comfortably conclude that the answer to the question of whether the height is compatible with the desired future character of the area must be answered in the negative, for a number of reasons.
44First, and while Mr Furlong places considerable emphasis on the setbacks of Level 4 to conclude that there is consistency with the desired future character of the area, I do not accept that this is sufficient. Even if the maximum height at the lift overrun is ignored, Level 4 can still be seen along from Victoria Road, particularly when travelling in a westerly direction and above the rooflines of the dwellings near the site in Renwick Street.
45I am not satisfied that sufficient emphasis was given to the 12 m numerical standard. Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The starting point for height is cl 4.3(2) and in this case, a maximum height of 12 m. While flexibility is available in the application of development standards, it does not follow in my view, that simply because the non-complying height of a building may not able to be seen from certain locations that this, in itself, justifies a breach of the height standard. The 12 m standard must have some work to do in considering the appropriate height of a building on the site.
46In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J, makes the following comments on a SEPP 1 objection, although I see no reason why the comments are not relevant in this case:
........ Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.
47Second, the height of a building on the site has added importance because of its location in the vicinity of the Victoria Road HCA and the Birkenhead HCA. The design of the building requires greater sensitivity, including height, in this context. The heritage aspects of the development were addressed by Mr Graham Brooks for the applicant and Mr Robert Moore for the council.
48On the matter of height, Mr Brooks states that in relation to the Victoria Road HCA and even though the new development will be visible to the group of terraces in this conservation area, this visibility will not affect or degrade the contribution to the significance of the Victoria Road HCA. With the benefit of the site inspection, I prefer the evidence of Mr Moore who states that the height and bulk of the development will adversely affect the views and vistas to the Victoria Road HCA. The building will dominate those views, and create an obtrusive, unhelpful and unconstructive development that does not contribute to a better evolving streetscape reflecting the development history of the area.
49While Mr Hemmings was critical of the Mr Moore's evidence because he suggested that the Victoria Road HCA was effectively "stretched" to reinforce Mr Moores concerns; it is a suggestion that must be rejected. There can be no doubt that the site is in the vicinity of the Victoria Road HCA as it is only one property away, was accepted by both Mr Moore and Mr Brooks and is a mandatory consideration in cl 5.10(5) of LEP 2013. The fact that DCP 2008 is not particularly expansive in dealing with development in the vicinity of a heritage conservation area does not diminish the evidence of Mr Moore.
50The streetscape drawings (Exhibit E) clearly show the height difference between the proposed building and the nearby group of terraces in the Victoria Road HCA. I have little trouble in concluding that a building that complies (or complies to greater extent) would have a far lesser impact on the Victoria Road HCA than that proposed in this application, despite the evidence of Mr Brooks.
51I also accept the views of Mr Moore on the effect on the Birkenhead HCA where he states that the building will adversely affect the aesthetic qualities of the Birkenhead HCA. The scale and bulk (together with the design) of the development will be visible along the open corridor of 69 Renwick Street and to the rear yards of the adjoining cottages and will adversely impact the perception of the Birkenhead HCA and its setting. Because of its increased height and its stepped, more complicated form, the new building will appear appreciably larger and dominant over the cottages to its rear, even though its rear element/form is lower than the existing building at this point.
52While Mr Brooks states that the streetscape montages prepared by the architect indicate that the scale and closely packed nature of the housing in this section of Renwick Street and the limited the visibility of the new building from within the majority of the nearby streetscape, the montages also highlight the height difference with the Renwick Street properties. Again, there can be no dispute that a building that complies (or complies to greater extent) would have a lesser impact on the Birkenhead HCA.
53Third, and while Mr Furlong placed some emphasis on the councils approval of five nearby developments that were approved with variations to the height standard, I am not convinced that this is a valid reason to support the variations, in this case. There was no suggestion that the height standard, irrespective of what planning regime was in force at the time, had been abandoned but only that the variations were based on the particular merits of that application. Given the slope of the sites on the opposite side of Victoria Roads, it would not seem unreasonable to allow some variation to the height standard.
54Pursuant to cl 4.6(4)(a)(ii). I find that the proposal is not consistent with objective (a) of the height development standard in that it is not "compatible with the desired future character" and as such development consent must not be granted.
55In relation to objective (b), there was agreement by the experts that the proposal created no impacts in relation to disruption of views, loss of privacy and loss of solar access to existing developments. The visual impact of the proposal from the public domain, including its heritage context, is addressed in the preceding paragraphs and was found to be unacceptable.
56Whether the proposal "minimises the visual impact" of the proposal from adjoining and nearby properties in Renwick Street was also in dispute between the experts and was a consistent concern raised by residents in the evidence to the Court. The relationship of the proposal with the adjoining and nearby properties in Renwick Street is complex. Mr Furlong, not unreasonably, argues that the zoning of the site technically allows a height of 12 m on the boundary with the properties in Renwick Street. The existing building is constructed largely to the boundary and the design improves this by providing a level of transition through setting back the upper levels from the common boundary. Mr Furlong also states that there are no requirements for landscaping to be provided in the B4 zone. As I understand the evidence of Mr Giaprakis, the transition from the proposal to the residential properties adjoining does not create what he describes as a "gentle transition". The ground floor balconies of the development are located on, and above the common boundary with properties in Renwick Street and Mr Giaprakis maintains that a greater setback should be provided, particularly in relation to reducing the bulk and physical appearance from adjoining and nearby properties in Renwick Street.
57I am not convinced that the appropriate approach is to simply apply the planning controls that relate to the site irrespective of what adjoins the site. The potential conflict between development in adjoining but different zones is addressed in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, where it relevantly states [at 25]:
25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone.
58Clause 7.7.1 of DCP 2008 relates specifically to the Victoria Road Drummoyne area where the site is located. Control C1 states:
C1 Transitional building heights should be provided between the commercial and residential areas to protect the amenity of surrounding neighbours
59While Seaside Properties and cl 7.7.1 of DCP 2008 seeks address the relationship between two different forms of development, a consideration of how one development will impact on another development is a fundamental planning consideration. It does not follow that simply because certain numerical standards apply to a site that a development is entitled to blindly rely on those standards. Such an approach would be in conflict with s79C(1)(b) of the Environmental Planning and Assessment Act 1979 that requires consideration of:
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
60In practical terms, I accept any redevelopment of the site for a mixed use development will have balconies that face towards the properties in Renwick Street as this provides a desirable north-east aspect and potentially distant views to the Parramatta River. In this case, however I am not satisfied that the development minimises visual impact on the adjoining and nearby properties in Renwick Street largely because of the minimal setbacks and the height to the building where it adjoins these properties. The building creates an unacceptable and overbearing appearance from the properties in Renwick Street due to the inadequate transitional building heights and setbacks. The inadequate setbacks and height are principally the direct result of the amount of floor area sought in this application. I have given little or no weight to the location and form of the existing building in considering this matter because of the total demolition of this building as part of the application. A more sympathetic transition could easily be achieved with a reduced floor, as suggested by Mr Giaprakis in his evidence.
61Pursuant to cl 4.6(4)(a)(ii). I find that the proposal is inconsistent with objective (b) of the height development standard in that it does not "minimise visual impact" and as such development consent must not be granted.
Is compliance with the development standard is unreasonable or unnecessary?
62I do not accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
63In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I do not accept that the applicant has established this to be the case.
64Mr Hemmings also submitted that, in this case, the fourth test in Wehbe is relevant. This seeks to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable. Again, for the reasons in the preceding paragraphs I do not accept that the applicant has established this to be the case.
65The breach of the height standard facilitates a building that has a form that is inconsistent with the desired future character. With the removal of all improvements from the site, there are no physical constraints on the site that restrict compliance or greater compliance with the height requirement. The conservation areas have been in existence a long time prior to LEP 2013 (Government Gazette No 25,18 February 2000) and are a known constraint on the development of the site. While Mr Furlong stated that that the development of the site, below that proposed in the application, would be financially unviable; this conclusion was based on advice from the applicant. No evidence to support this was provided and in any event, it is doubtful that would be a relevant matter to take into account in considering a variation to the height standard.
Are there sufficient environmental planning grounds to justify contravening the development standard?
66For the reasons in pars 39 to 65, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.
67For completeness, I will briefly deal with the other matters in dispute.