Bettar v Council of the City of Sydney

Land and Environment Court (NSW)|2016-09-13

Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2016/151487

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2015/1829 for a residential flat building consisting of seven storeys and basement parking (the proposal) at 17-19 Dunning Avenue, Rosebery (the site), by the Council of the City of Sydney (the Council).

Issues

The Council's contentions can be summarised as:

The street façade of the proposal should be setback 3 metres;
The bulk, massing and modulation of the proposal is unacceptable as a result of the non-compliance with the maximum six storey control that applies to the site;
The proposal does not provide for the ground and first floors to be adapted for commercial uses in the future; and
The use of internal voids in two and three bedroom apartments compromises the internal amenity of these apartments and contributes to the overall bulk of the building envelope.

The parties disagreed on whether amendments made to the proposal in exhibit J were minor for the purpose of section 97B of the EPA Act.

The site and its context

The site is on the eastern side of Dunning Avenue, on the block bounded to the south by Cressy Street and to the north by Epsom Road.

The proposal

The proposal is for a residential flat building over 7 levels, consisting of Basement parking for 25 cars, bikes and storage, 3 communal open space areas and the following composition of units: UNIT Entry level 1 bed 1 bed 2 bed 2 bed 3 bed (2 levels) (2 levels) (2 levels) 1 G √ 2 G √ 3 G √ 4 G √ 5 G √ 6 1 √ 7 1 √ 8 1 √ 9 1 √ 10 1 √ 11 1 √ 12 1 √ 13 2 √ 14 2 √ 15 3 √ 16 3 √ 17 3 √ 18 3 √ 19 3 √ 20 3 √ 21 3 √ 22 4 √ 23 4 √ 24 5 √ 25 5 √ 26 5 √ 27 5 √ TOTAL 4 3 9 8 3

Planning framework

Section 97B of the EPA Act is as follows: 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. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law.
The site is zoned B4 Mixed Use pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent.
The proposal complies with the height of buildings development standard of 22m (Height of Buildings map HOB_018 LEP 2012). The proposal complies with the floor space ratio (FSR) development standard of 1.5:1 (FSR map FSR_018 LEP 2012) plus the Green Square Area 6 additional FSR of 0.5:1 pursuant to cl 6.14 of LEP 2012 and subject to a voluntary planning agreement (VPA) (deferred commencement condition 1, Annexure 'A') between the parties. The objectives of cl 6.14 Community infrastructure floor space at Green Square that I must be satisfied the development is consistent with before granting consent, are as follows: (a) to allow greater densities where Green Square community infrastructure is also provided, (b) to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.
Clause 6.21 of LEP 2012, 'Design Excellence', includes the following mandatory consideration in relation to whether the proposal exhibits design excellence, at sub-cl (4): (v) the bulk, massing and modulation of buildings
Mezzanine is defined by LEP 2012 as an intermediate floor within a room.
A storey is defined by Sydney Development Control Plan 2012 (DCP 2012), at 4.2.1.1, as 'a storey is the space between a floor and the next floor level above. It does not include an attic, a mezzanine or a space that contains only a lift shaft, stairway or meter room.'
Provision (4) of section 4.2.1.1 of DCP 2012 'Height in storeys and street frontage height in storeys' is as follows: Where the Street frontage height of buildings map does not indicated the maximum height, the maximum street frontage height must generally consistent with the street frontage height In storeys of adjacent buildings, or the predominant street frontage height in storeys in the vicinity of the proposed building.
The objective for the height in storeys and street frontage height in storeys control in DCP 2012 at 4.2.1.1 is to ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.
Figure 4.22 of DCP 2012, 'Building form controls' is as follows:
The objective for the floor to ceiling heights and floor to floor heights of DCP 2012 at 4.2.1.2 is to promote daylight access into building interiors and contribute to the flexible use of buildings. The design of ground and first floor residential units in a mixed use area or mixed use building are to be flexible with multiple configurations and finished floor to finished ceiling heights of at least 3.3m to enable both residential and commercial uses, at (3).
The objectives for building setbacks at 4.2.2 of DCP 2012 are: (a) Ensure development: (i) is generally consistent with existing, adjacent patterns of building setbacks on the street; and (ii) maintains the setting of heritage items and is consistent with building setbacks in heritage conservation areas. (b) Establish the street frontage setback of the upper levels of residential flat buildings, and commercial and retail buildings. (c) Encourage new building setbacks where appropriate to reinforce the areas desired future character.
The relevant provision for setbacks, at 4.2.2.1(1) of DCP 2012 is for setbacks to be consistent with the setbacks of adjoining buildings (as there is no building setback and alignment map that includes the site).
The provisions for setbacks above the street frontage height, at 4.2.2.2 of DCP 2012, are: (1) Setbacks above the street frontage height are to be included where: (a) adjacent buildings include upper level setbacks; and (b) new development is adjacent to a heritage item to reduce visual impact and to respect the heritage item. (2) A setback above the street frontage height is to be a minimum of 3m for residential above non-residential and for residential above residential.
Objectives for residential uses on the ground floor and first floor, at 4.2.5.4 of DCP 2012 are: (a) Design ground floor apartments with a similar appearance as two storey terrace houses. (b) Balance ground floor dwelling privacy with surveillance to the street. (c) Activate the street with individual building entries. (d) Create a fine-grain and varied rhythm of built form along the street. (e) Create opportunities at the street level for planting or landscaped areas and visually extend open areas at the lower levels.
The relevant provision for 4.2.5.4, at (1)(a) is for ground floor residential uses to be provided with a minimum of 3m primary building setback, except where a zero lot line has been established by existing adjacent development.
The site is located within the Green Square area (figure 5.34 of DCP 2012), for which DCP 2012 has specific objectives and controls at section 5.2.
The objectives for setbacks within the Green Square area, at 5.2.10 of DCP 2012 are: (a) Introduce landscaped front setbacks to enhance the setting and appearance of buildings. (b) Promote privacy and enhance the streetscape with private setbacks from the street edge. (c) Enhance the public domain through the provision of setbacks to increase pedestrian amenity and supplement the public open space.
The relevant provision for setbacks in Green Square is at (4) 'Where no setback is nominated on the Public domain setbacks map, the building setback is to be provided in accordance with the provisions for residential uses on the ground and first floor within Section 4.2.5.4.'
'Deep soil' is defined by DCP 2012 as 'an area of natural ground with relatively natural soil profiles and it excludes areas where there is a structure underneath, pools and non-permeable paved areas but can include 50% of the area of any porous paving and essential accessible paths up to 1.2m wide, providing there is deep soil area to one side that is level with the footpath.'
The site is not flood affected. Provision (4) of 3.2.2 Addressing the street and public domain for a ground floor tenancy is as follows: (4) Ground floor tenancies and building entry lobbies on sites not flood affected are to: (a) have entries at the same level as the adjacent footpath or public domain; (b) have finished floor levels between 0-1.0m above or below the adjacent footpath or public domain entry; (c) provide opportunities for direct surveillance of the adjacent street or public domain at maximum intervals of 6m; and (d) be elevated up to 1.0m above ground level for privacy for ground floor residential uses.

Expert evidence

The applicant relied on the expert evidence of Mr Anthony Betros (planning), Ms Gabrielle Morrish (urban design), Mr Sebastian Giglio (acoustic) and Mr John Lincoln (electromagnetic engineering). The respondent relied on the expert evidence of Mr Kris Walsh (planning), Ms Cindy Ch'ng (urban design) and Mr Geoffrey Garrett (electromagnetic engineering).

Primary building setback

The parties disagreed on the interpretation of the DCP 2012 provisions and a merit assessment of the proposal in relation to an appropriate setback for the street elevation of the proposal. It is the Council's position that there should be a 3m setback of the front façade and it is the applicant's position that such a construction of the controls in DCP 2012 has no foundation.
The parties agreed that the locality is in the process of transforming from light industrial uses to mixed uses and that the context of the site is likely to be redeveloped in the near future. The two storey 'Paradise Garage warehouse' (heritage item I1376 Schedule 5 LEP 2012) is at 25-27 Dunning Street, on the corner of Cressy Street, is built to the street boundary on both streets. Mr Galasso submits that this is likely to generate a nil street boundary setback for the future development of the property adjacent and to the south of the site, 23 Dunning Street, because it is adjacent to Paradise Garage and the setback must be consistent with adjacent buildings, at 4.2.2.1(1) of DCP 2012. He submits that the proposal provides a virtually nil street boundary setback at the southern end of the street elevation at the ground level and over, where the vehicular entry and services are located, because it is very likely that the adjacent site will have a nil street boundary setback. The adjacent property to the north of the site has a 15m street boundary setback which is unlikely to be maintained by a future development. The recent development at the northern end of the block containing the site, at 1-3 Epsom Street, has retail and pedestrian terraces on the ground level with a nil setback for the façades to Epsom Road and Dunning and Mentmore Avenues. 'Mentmore House' (heritage item I1378 Schedule 5 LEP 2012), at 5-11 Mentmore Avenue, on the eastern side of the block and to the rear of the site, is built to the street boundary. The recently approved development at 4 Cressy Street, on the south-eastern corner of the block containing the site, has a nil setback from the façades to Mentmore Avenue and Cressy Street. As a consequence, the only sites which do not have a façade on the street boundary on the block bounded by Dunning Avenue, Epsom Road, Mentmore Avenue and Cressy Street are the site and the two undeveloped properties to the north and south of the site. The property to the north of the site, 5-15 Dunning Avenue, is the largest site on the block with street frontages to both Denning Avenue to the west and Mentmore Avenue to the east.
Ms Ch'ng and Mr Walsh are of the view that the street front façade should be setback 3m from the street boundary. This is based on their interpretation of DCP 2012, which requires a 3m street front setback for the residential component of a mixed use building, because provision 4.2.5.4(1)(a) requires a 3m primary building setback and the primary building setback is shown in Figure 4.22 as the street front façade of the building. Mr Walsh says this is further demonstrated by the requirement of provision (c) for a 3m wide deep soil landscape setback as a private front garden for the ground floor residential use, as 'deep soil' means there is no part of the building above overhanging the area of deep soil. I do not accept this as the DCP 2012 definition of 'deep soil', quoted at paragraph 23, does not appear to preclude areas with overhanging structures from being included in a deep soil area calculation. As this proposal is a residential flat building, the entire street front elevation should be set back 3m from the street boundary according to Council's experts.
Mr Hemmings notes that that the Green Square area provisions are to be read in conjunction with Section 4.2 which includes the provisions for residential flat, commercial and mixed use developments, at 5.2.9 of DCP 2012. He submits that provision 5.2.10(4) provides that the building setback, referring to the street frontage height of the street elevation, is to be provided in accordance with the provisions for residential uses on the ground and first floor within section 4.2.5.4. The 3m setback in 4.2.5.4(1)(a) is a primary building setback and is not confined to the ground floor or the ground and first floor. Mr Hemmings submits that no provision in either Section 4.2 or 5.2 of DCP 2012 contemplates a ground and first floor setback with overhanging upper floors with a nil front setback. The purpose of the Street frontage height of buildings map is to determine the secondary building setback and this site does not have a nominated secondary building setback.
Ms Morrish and Mr Betros interpret the provisions of DCP 2012 differently to the Council's experts. In their opinions, Figure 4.22 and the provisions at 4.2.2 of DCP 2012 do not apply to the proposal. Mr Betros relies on provision (4) of section 4.2.1.1 and in his view the maximum street frontage height must generally be consistent with the predominant street frontage height in storeys in the vicinity of the proposal and in his view the predominant setback in the vicinity of the site is a nil setback to the street front. In his opinion, the proposal appropriately setbacks the residential use at the ground floor 3m from the street boundary and the street front elevation above the ground floor is entitled to have a nil setback as this is the predominant setback in the vicinity of the site.
According to Ms Morrish, the Specific Area provisions for Green Square override the general provisions for setbacks in Section 4 of DCP 2012 and she notes the text at the commencement of section 4.2 'Not all provisions in this Section apply to development in … Green Square'. Provision 5.2.10(4) refers the consent authority back to section 4.2.5.4, where there is no setback nominated as there is no Public domain setbacks map for this site. Provision 4.2.5.4(1)(a) requires a 3m primary building setback only for the ground floor in her view, with reference to the chapeau of the provision, '(1) Ground floor residential uses are to be provided with a minimum of: [3m primary building setback].' In Ms Morrish's opinion, neither the diagramme at Figure 4.22, nor the provisions at 4.2.2.2 for setbacks above the street frontage height, apply to the proposal, as there is no Street frontage height of buildings map for the site. Consequently, the relevant provisions of DCP 2012 for the site require a 3m ground floor street front setback for a residential use at ground floor and the building over may have a nil setback.
Mr Galasso's submits in relation to the relevant provisions in DCP 2012 regarding the street front setback of the proposal, the provisions at 4.2.2.2 relate to the secondary building setback and which are not engaged on this site, as there is no secondary building setback nominated for the site on the Street frontage height of buildings map.
The DCP 2012 maps, Building street frontage height in storeys map sheet 018; Public domain setbacks map sheet 018 and Active frontages map sheet 018, which each include the site, do not apply any items from the legend of each map to this site. Mr Galasso submits that the Public domain setbacks map includes in the legend an item '3m landscaped setback', however this is not applied to the site nor any property on either side of the length of Dunning Street. Mr Hemmings submits, and I accept his submission, that one then turns to the provisions of DCP 2012 to determine the primary building setback.
The DCP 2012 provisions regarding the primary building setback or the street front setback for this site are certainly ambiguous, but to err on the side of caution, I accept Mr Hemming's submissions regarding the proper construction of those provisions for the street front setback for the site in DCP 2012. The relevant provision for the street front setback at 4.2.5.4(1)(a) of DCP 2012 requires a 3m primary building setback for ground floor residential uses, except where a zero lot line has been established by existing adjacent development. A zero lot line has not been established by existing adjacent development, as both properties to the north and south of the site are yet to be redeveloped. According to Mr Hemmings, that 3m setback, notwithstanding that it applies to the residential uses on the ground and first floor, becomes the 'building setback' when read in conjunction with the provision at 5.2.10(4), where 'building setback' means 'street frontage height', as shown on Figure 4.22. I accept that the DCP 2012 provisions do not contemplate a ground and first floor setback from the street boundary with overhanging upper floors with a nil front setback, yet this is what has been approved at 1-3 Epsom Road, at the northern end of the block and at 4 Cressy Street on the south-eastern corner of the block, according to Ms Ch'ng's evidence (attachment 4, exhibit 5). Relating the Council's construction of the provisions in DCP 2012 to the site and using the terminology of Figure 4.22, the primary building setback is 3m and the maximum building height is 6 storeys; there is no secondary building setback required and there is no maximum building street frontage height in storeys.
The proposal provides a 3m street front setback to unit 1 on the ground floor, with a terrace raised above the footpath level, shielded by a raised planter. The pedestrian entry is setback from the street front boundary more than 3m. The wall on the southern boundary, the fire stair and services encroach on the 3m setback at ground level.
I accept Mr Galasso's submission that the future development of 23 Dunning Street is likely to adopt a nil front setback because it is adjacent to the heritage item, Paradise Garage warehouse, built to the street boundary on both Dunning Avenue and Cressy Street, because the setback of the future development of 23 Dunning Avenue must be consistent with adjacent buildings, at 4.2.2.1(1) of DCP 2012. For this reason, the rationale for having a nil front setback for the street front elevation is justified.
The nil front setback for the street front elevation is further justified by the development of the block bounded by Dunning Avenue, Epsom Road, Mentmore Avenue and Cressy Street. Both the northern and southern ends of the block have buildings with a nil front setback of the street frontage and a significant portion of Mentmore Avenue has a nil front setback. I do not accept the Council's experts' evidence that this site and will set the precedent for the development around it. Instead, only 5-15 Dunning Avenue, with a frontage to Dunning Avenue and Mentmore Avenue, is likely to break the established street wall above ground level on this block. The proposal has a setback of 6m from its northern boundary shared with 5-15 Dunning Avenue, which means the proposal will not dictate the future development of the south-western corner of 5-15 Dunning Avenue. The proposal successfully transitions to the 6m northern setback by modulating the form at ground and first floor levels and providing a 3m landscaped setback at ground level.
For these reasons, it is appropriate to exercise the flexibility afforded by sub-s 79C(3A)(b) of the EPA Act in respect of those provisions of DCP 2012 that set the standard for a 3m street front setback for the street frontage. The proposal is a reasonable alternative solution that achieves the objects of those standards for dealing with that aspect of the development and responds to the constraints and opportunities provided by the development of this block to date, as it is consistent with the nil front setback of 4 Cressy Street, which is a response to the nil front setback of the heritage items on either side and the form including the nil front setback of 1-3 Dunning Avenue, at the northern end of the site. I am satisfied that the nil front setback of the street frontage above ground floor of the proposal is an appropriate response to the likely form of the future development at 23 Dunning Avenue and that the setback of the proposal from the northern boundary provides a decorous transition to whatever form the future development of 5-15 Dunning Avenue takes.
I am satisfied that the design of the proposal achieves the objectives for residential uses of the ground and first floor at 4.2.5.4 of DCP 2012 and the objectives for setbacks in the Green Square area at 5.2.10 of DCP 2012, for the following reasons:

The proposal provides a landscaped front setback to enhance the setting and appearance of the building;
The proposal promotes privacy by raising the private terrace of unit 1 above the pathway and separates the terrace from the public domain with a raised planter along the street front boundary and successfully balances the privacy of unit 1 with an opportunity for the occupant of unit 1 to provide passive surveillance of the street. Unit 1 also has a private open space area to the north of the unit, which provides a private outdoor area with good amenity in addition to the raised western terrace that can be seen from the public domain. The proposal enhances the streetscape by setting the ground floor unit back from the street edge and it enhances the public domain through the provision of a setback at ground level to increase pedestrian amenity;
Unit 1 has a private entry from the street, which assists in activating the street with an additional building entry.
The ground and first floor residential uses are distinguished in form from the street front façade over, as the ground floor is recessed under the building and the façade is modulated the northern end of the first floor, in order to facilitate afternoon sunlight penetration to the side terrace of unit 1 below and to distinguish the ground and first floor from the building form over. This successfully creates a varied rhythm of building form along the street.

Flexible use of ground and first floor levels

Provision 4.2.1.2(3) of DCP 2012 requires ground and first floor residential units in mixed use area to have floor to ceiling heights of 3.3m to enable flexibility for future conversion to commercial uses.
Mr Walsh is content for only unit 1 on the ground floor, fronting the street, and units 6 and 7 on the first floor, also fronting the street, to be designed so that they may be converted to a commercial use in the future with consent. These three units face the street and are separated from the remaining units on the ground and first floors by a north-south corridor linking the vertical circulation through the western end of the proposal and so it is logical to identify these three units as the most suitable to accommodate a potential change of use in the future.
The floor slab of unit 1 is stepped down beneath the unit to a level RL18.1 and the finished floor level (FFL) of unit 1 is to be raised to RL18.7 using a 'false' floor positioned over the slab. This maintains unit 1 at the same FFL as the other units at ground level and at a level raised above the footpath, to enhance a sense of separation from the public domain. The footpath falls gently to the south, from the north-western corner of the site at RL18.43 to the south-western corner of the site at RL18.03. The stepped floor slab at RL18.1 provides a future opportunity for unit 1 to be converted to a commercial use with a floor to ceiling height of 3.3m, consistent with provision 4.2.1.2(3) and 3.2.2(4) of DCP 2012.
The potential for inundation of the ground floor and basement level by stormwater is addressed in the proposal by raising the vehicular ramp and the entry to unit 1 to a minimum of RL18.4. The future design of a commercial tenancy at ground level would need to be designed to Council's satisfaction in terms of ameliorating the potential for inundation of stormwater.
The floor to ceiling height of unit 1 is 2700mm which is consistent with Part 4C of the Apartment Design Guide (ADG) minimum requirement for habitable rooms.
Ms Ch'ng identified some anomalies in the detail design of the ramp at the entry to the building and the entry of unit 1 which were then addressed by changes to the building entry (exhibit L).
I am satisfied that the proposal successfully achieves the flexibility required for potential non-residential uses by Part 4S of the ADG and provision 4.2.1.2(3) of DCP 2012 at ground floor level.
Units 6 and 7 have a floor to ceiling height of 2.7m. I am satisfied those units could be suitably converted with consent to a future commercial use and that it would be facilitated by the layout of the first floor. For this reason, it is appropriate to exercise the flexibility of s 79C(3A)(b) in relation to the numerical requirement for the floor to ceiling height of the first floor in provision 4.2.1.2(3) of DCP 2012. Based on Mr Hemming's submissions in regard to this contention, Council's real objection to the 2.7m floor to ceiling height in the two units on first floor is not the constraint that it may impose on a future change of use, but the fact that the proposal has seven floors and had the first floor had a floor to ceiling height of 3.3m, the proposal, with seven floors, would have exceeded the height of buildings development standard for the site of 22m, requiring, in the Council's view, that the seventh floor be deleted.

Number of storeys

The Height in storeys map (Height in storeys map Sheet 018 DCP 212) identifies the whole block bounded by Dunning Avenue, Epsom Road, Mentmore Avenue and Cressy Street as 6 storeys. The maximum building height for the site is therefore 6 storeys and there is no secondary building setback required and no maximum building street frontage height in storeys.
I accept that the height of buildings development standard in LEP 2012 for the site and the maximum number of storeys control in DCP 2012 are consistent and compatible (Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072 [32] and Arnott v City of Sydney Council [2015] NSWLEC 1052 [55]).
The proposal has a setback at ground level for the majority of the length of the street façade, the first floor level street façade consists of a northern and southern unit, where the southern unit is wrapped around a recessed western facing balcony matching the units over and the northern unit is modulated with cut-outs in the floor plate; the three levels over the first floor level have a northern and southern unit facing the street, each wrapped around a recessed western facing balcony; the fifth floor level has a northern unit only with a partially roofed communal open space on the southern side and the sixth level is setback from the street façade and consists of a bedroom and bathroom to the unit on the northern side of the fifth level below. There are seven levels in total, with a recessed ground floor level and the street frontage consists of four levels with a partial fifth level and a secondary building setback to the uppermost level.
I accept the parties' agreement that the levels containing bedrooms which overlook the void over the living areas below do not conform to the definition of mezzanine in LEP 2012, where mezzanine means an intermediate floor within a room and the diagram in DCP 2012, with reference to the Building Code of Australia definition of storey, where a mezzanine must be part of a room and if it is enclosed by a wall, it is no longer within another room and is not a mezzanine (as quoted by Ms Ch'ng, exhibit 5, p 5). As a consequence, the proposal is for seven storeys.
Mr Galasso submits that if the bedrooms on the seventh floor level of the proposal were housed within a roof form that complied with the definition of 'attic', the proposal would be compliant with the 6 storey control and yet provide the same accommodation. Mr Hemming's response to that submission is that the attic 'hypothetical' proposal tendered by the applicant (exhibit K) is not the proposal before the Court. I accept Mr Hemming's submission and I have not considered exhibit K.
I do not accept the Council's experts' view that consideration of the future overshadowing impact of the proposed building envelope on a hypothetical residential development to the south of the site is a relevant consideration in relation to the number of storeys of the proposal. It is the Council's view that the seventh floor is only achieved by the proposal because the proposal fails to provide floor to ceiling height of 3.3m on the first floor. It is the Council's argument that had the proposal provided the 3.3m floor to ceiling height on the ground floor above the proposed ground floor FFL of RL18.7 and a 3.3m floor to ceiling height on the first floor and, for example, more generous floor to ceiling height on the seventh floor, it could have been designed to provide 6 storeys within the 22m height of buildings development standard. If so, the building envelope would have been similar to the proposed building envelope and the overshadowing impacts on the hypothetical development to the south would be the same as the proposal, notwithstanding compliance with the maximum building height in storeys control in DCP 2012.
I do accept that consideration of the future overshadowing impact of the proposed building envelope on a hypothetical residential development to the south at 23 Dunning Avenue is a relevant consideration in relation to the proposed building envelope. I am satisfied that the nil setback from the southern boundary of the street front portion of the proposal is acceptable for reasons set out in paragraph 38 of this judgment. I am satisfied that a 6m side setback of the proposal from the southern boundary with an additional 3m setback of the seventh floor and compliance with the height of buildings development standard for the site, coupled with the reduced height of five storeys of the rear portion of the proposal, provides an acceptable interface to the southern neighbour and reasonable opportunities for solar access to the northern façade of a future development at 23 Dunning Street.
Ms Ch'ng's agreed with Ms Morrish that both developments at 1-3 Dunning Avenue and 4 Cressy Street consist of 7 storeys, with a street wall height of 6 storeys. These developments contribute to the future neighbourhood character in the vicinity of the site and the proposal is consistent with the building form approved for these two properties.
The uppermost floor of the proposal contains a 'loft' bedroom/bathroom to units 26 and 27; two bedrooms and bathroom/s to units 24 and 25 and voids to living areas below. The uppermost floor is setback from the street wall façade of the proposal. The floor area and voids to the four units on the uppermost floor occupy a significantly smaller footprint when compared to the floors below.
I am satisfied that the seven storey height and the six storey street frontage height of the proposal meets the objective for the height in storeys and street frontage height in storeys control in DCP 2012 at 4.2.1.1 to ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.
The proposal has 2.7m floor to ceiling heights for the five levels above ground floor and the uppermost floor, containing only bedrooms and bathrooms, has a 2.4m floor to ceiling height. The sense of spaciousness in the majority of units is substantially increased by the voids over living areas and the double storey height of the north facing glazing. I am satisfied that the proposal meets the objective for the floor to ceiling heights of DCP 2012 at 4.2.1.2 to promote daylight access into building interiors and the ability to be able to increase the floor to ceiling height to 3.3m in unit 1 for a commercial use contributes to the flexible use of the building.

Amenity of the two and three bedroom apartments with a void over living areas

The Council contends that the bedrooms on the upper levels of the two and three bedroom units which overlook the void over living areas below (8 two bedroom units and 3 three bedroom units, refer to paragraph 6) will have poor amenity because the privacy of these bedrooms is compromised.
Following the revisions in exhibit J, the two bedroom units over two levels have one enclosed bedroom and one 'open' bedroom, overlooking the living area below. The three bedroom units over two levels have two enclosed bedrooms and one open bedroom.
I am satisfied that the revised layouts in exhibit J have adequately addressed this contention by having only one open bedroom within the two and three bedroom units over two levels. I note that there is a choice within the development between 9 two bedroom units over one level with enclosed bedrooms and 8 two bedroom units over two levels with one open bedroom on the upper level.
I accept the Council's submission that a bedroom within a multi-bedroom unit with a balustrade overlooking the void over a living room on the floor below has compromised privacy, particularly acoustic privacy, if that bedroom is to be used for sleeping in while other bedrooms in the unit are also occupied. I do not accept, however, that this issue it is determinative, as it is a matter for the market to determine and the applicant bears that risk.

Electromagnetic emissions from the mobile telephone tower

I accept the agreement of the expert engineers that the electromagnetic radiation from the existing mobile telephone tower on the adjoining property to the north does not pose a risk to the health of the future occupants of the proposal, although there is a possibility of interference with electrical equipment used on the upper level of the proposal and that conditions of consent are required to manage any risk to human health during construction and maintenance of the proposal. I reject the Council's submission that this is a reason to delete the uppermost floor of the proposal and I give greater weight to the agreement of the expert engineers that there is no risk to the health of the occupants of the proposal during the period that the tower remains in its current location and the compliance of the proposal with the height of buildings development standard in LEP 2012 of 22m for the site.

Disputed conditions of consent

The applicant disputes conditions 25, 48 (46 exhibit N) and 72 (66 exhibit N) of the conditions of consent (exhibits 7 and N).
Condition 25 'Sites in the vicinity of a heritage item' requires the applicant to conduct consultations with the stakeholders of the neighbouring heritage item at 5-11 Mentmore Avenue to ensure that suitable measures are undertaken to record and monitor the building and ensure risks to the heritage fabric are minimised during construction. The applicant seeks an amendment to the condition such that the condition will require the applicant to make attempts to conduct consultations with the stakeholder of the neighbouring heritage item, on the basis that the stakeholder of the heritage item may be unwilling to participate in the process, and for the details of the protection plan to be incorporated into the Construction Management Plan prior to the issue of the Construction Certificate. I accept the applicant's submission and condition 25 is amended accordingly.
Condition 48 'Alignment levels - major development' included as condition 46 in exhibit N, at (a) 'Proposed building floor levels, basement levels, basement car park entry levels and ground levels shown on the approved Development Application plans are indicative only and have not been approved by this consent'. The applicant seeks the deletion of this sentence and I note it has been deleted by the Council's solicitor in the amended conditions filed by the Council.
The applicant seeks the amendment of condition 48 so that the Principal Certifying Authority is the approval authority for each of the requirements instead of the Council and I accept the Council's position that this is a standard conditions for all work in and interfacing with the public domain under the control of Council and it is reasonable and appropriate that the plans be referred back to Council for its approval.
Condition 72 'Waste and recycling management - residential' requires a Waste Management Plan to be submitted to and approved by Council's Area Planning Manager prior to a Construction Certificate being issued. The applicant seeks the amendment of this condition for the Waste Management Plan accompanying the application to be updated in accordance with the relevant Council policy and approved by the PCA. I accept the Council's position that Council's Waste Management Unit has not signed off on the updated Waste Management Plan, provided with the amended plans and further clarification of the arrangements and access is required for the on street collection. As Council will be the collection authority for the residential use, the final arrangements need to be clarified and approved by Council.

Whether the further amended proposal (exhibit J) is a minor amendment for the purpose of section 97B of the EPA Act

The parties disagreed on whether the amendments made between the exhibit A plans and the exhibit J plans are minor for the purposes of s 97B of the EPA Act. The amendments made to the proposal in exhibit J are listed in exhibit M.
Justice Pepper's decision in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 [42] articulates the principles that may assist in determining whether amendments are minor for the purpose of s 97B of the EPA Act, as follows: 42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
In determining whether amendments made in exhibit J are minor or not, I am not concerned with the correction of any drafting errors, rectified omissions or administrative updating of the documentation and have had regard only to substantive design changes. Substantive design changes that have been made to exhibit J in order to deal with issues raised the Council include the following:

Roof over garbage holding enclosure added;
Roof shape to Dunning Avenue modified, including the plan of the roof over the upper level void of unit 26 and the concrete roof over unit 26;
The planter to the east of the communal open space is extended to the north;
Unit 1 layout, street entry and western terrace introduced with private access from the street and solid balustrade;
Column length decreased and balustrade length increased on balcony of unit 7 and shape of the balcony modified to narrow the balcony at the southern end;
Units 6, 13, 14, 20, 21, 22, 23, and 26 balcony areas increased and internal layout modified including adding a media desk to the southern units and entry door and kitchen layout modified in unit 26;
Units 10, 11, 17 and 18 internal layout modified to increase the entry hall width and address a conflict between the opening of the front door and the riser of the first stair and the laundry cupboard is re-orientated. Bedroom 1 on the upper level is modified so that the bedroom is fully enclosed and directly adjacent to the northern façade;
Location of the bedroom and external changes made to units 16 and 19 to achieve 9m setback from southern boundary;
Window added to units 12 and 19;
Internal layout of unit 25 modified including the relocation of bedroom 1 on the upper level so that the bedroom is fully enclosed and directly adjacent to the northern façade;
Openings added to levels 1 and 3 at the eastern end, louvres added to northern glazing adjacent to voids and roof extended over communal area.

These substantive design changes made in exhibit J are responsive to issues raised by the Council and have taken advantage of opportunities to improve the layout and design of the proposal. These substantive amendments satisfied some of the issues raised by the Council and the Council's experts have had to assess the substantive design changes made to the proposal and will have incurred costs in doing so. The amendments made to the plans in exhibit J are cumulatively significant when compared to exhibit A. For these reasons, I am satisfied that the amendments made to the proposal in exhibit J are not minor for the purposes of s 97B of the EPA Act.

Conclusion

For the reasons set out in the judgment, I am satisfied that the proposal is consistent with the objectives of cl 6.14 of LEP 2012, (a) to allow greater densities where Green Square community infrastructure is also provided, (b) to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities, and (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.
In my consideration of this proposal, I have given significant weight to the following aspects of the proposal:

The compliance of the proposal with the 22m height of buildings development standard and the 1.5:1 FSR development standard for the site including the additional 0.5:1 FSR (cl 6.14 of LEP 2012) and the overall building envelope of the proposal which provides an appropriate bulk, massing and modulation of the building on the site.
The context of the site given by the two nearby heritage items, the approved new development and constructed new development to date, which together provide a precedent for a nil street boundary setback for the street frontage elevation above the ground level on this block and particularly the likely form of development on the adjoining site to the south 23 Dunning Avenue. The decorous relationship of the proposal to its future northern neighbour allows for a variety of approaches to the development of the adjacent property, by setting the proposal back from the northern boundary, so that the proposal does not dictate a nil street boundary setback for the street frontage elevation of its northern neighbour.
The developments at 1-3 Dunning Avenue and 4 Cressy Street which similarly consist of seven storeys, with a street wall height of 6 storeys.
The high level of amenity achieved by the proposal as the living areas and outdoor living areas of 23 of the 27 units face north with a 9m setback from the northern boundary. The internal voids within 12 of the north facing units will provide a generous feeling of spaciousness and access to sunlight.

Development consent is granted to the amended proposal in exhibit J, which is further amended by exhibit L (exhibit L: DA201 Rev N, DA202 Rev O, DA203 Rev N, DA204 Rev N, DA205 Rev J, DA206 Rev J, DA207 Rev K, DA208 Rev C and exhibit J: DA000 Rev J, DA001 Rev L, DA002 Rev E, DA003 Rev C, DA004 Rev E, DA101 Rev N, DA102 Rev N [updated to be consistent with DA 208], DA103 Rev N, DA104 Rev M - Level 2, DA105 Rev N - Level 3, DA106 Rev M - Level 4, DA107 Rev N - Level 5, DA108 Rev M - Level 6, DA302 Rev F), subject to the conditions of consent (Annexure A).

Orders

The orders of the Court are: 1. The appeal is upheld. 2. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendments made to the proposal in exhibit J, as agreed or assessed, within 28 days. 3. Development Application No. D/2015/1829 for a residential flat building consisting of seven storeys and basement parking at 17-19 Dunning Avenue, Rosebery is approved, subject to the conditions of consent at Annexure 'A'. 4. The exhibits, other than exhibits 1, J and L, are returned.

Susan O'Neill Commissioner of the Court 151487.16 O'Neill (C) (389 KB, pdf) 151487.16 O'Neill - DUNNING AVE_DA_Exhibit L (1.87 MB, pdf) 151487.16 O'Neill - DUNNING AVE_DA_Exhibit J (2.84 MB, pdf)

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: 04 October 2016

(2009) 169 LGERA 153

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