Binnijig Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1086 | Case summary

Land and Environment Court (NSW)|2020-02-18

The applicant's written request to contravene the height of buildings development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (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
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has, in fact, demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). I am satisfied that the proposed development is consistent with the objectives of the zone and the height of buildings development standard.

Proposal fails to demonstrate that adequate floor to ceiling heights are achieved

The ADG design criterion for ceiling heights is a minimum of 2.7m for habitable rooms and 2.4m for non-habitable rooms and 3.3m for mixed use ground and first floor to promote future flexibility of use. In order to achieve these heights, the floor to floor height for the business premises should be 4m and for the residential units, 3.1m, according to the ADG.
The floor to floor heights of Levels 1-5 are 3m. The applicant provided reflected ceiling plans (Ex A, dwg 760-765) shaded to denote wet areas with floor to ceiling heights of 2300mm, areas with floor to ceiling heights of 2400mm and 2700mm. The typical sections (Ex A, dwg 720) show a floor to ceiling height 2720mm between the finished floor level and the underside of a suspended plasterboard ceiling, which is 53mm below the underside of the slab over; and a section through wet areas showing a floor to ceiling height of 2300mm where the suspended ceiling is 473mm below the underside of the slab over. The typical section for wet areas assumes that wet areas are aligned vertically, whereas the spatial layouts vary across levels so that there are wet areas above living rooms and dining rooms.
The proposal has a Ground Floor level for both the business premises and the residential units of RL55.2. The existing footpath along Canterbury Road falls to the intersection with Canarys Road and has levels of RL55.68 falling to RL55.25. The eastern business premises 1 has an entry from the footpath with two risers and an internal entry via a ramp from the footpath and the western business premises 2 has an entry from the footpath via a 1:10 ramp and an internal entry. The floor to floor height of the Ground Floor is 3.5m.
The applicant submitted this issue is capable of being addressed by a condition of consent, even a deferred condition of consent, requiring documentation to demonstrate that the habitable rooms shown in Ex A as achieving 2.7m floor to ceiling heights do in fact achieve 2.7m with bulkheads for servicing located over cupboards, corridors, kitchens and bathrooms.
I accept and agree with Ms Morrish's view that substantial compliance with the height of buildings development standard has been achieved by the proposal over 6 levels by sinking the finished floor level of the business premises to below the level of the Canterbury Road footpath and by reducing the floor to floor heights on all levels. This has compromised the proposal.
The applicant has failed to demonstrate that the proposal can achieve 2.7m floor to ceiling heights in the habitable rooms of all of the units. I accept Ms Morrish's evidence that there are wet areas located over habitable rooms and that it is not certain that a bulkhead can be avoided within habitable rooms to accommodate hydraulic and mechanical services. The reflected ceiling plans were shown by the agreed evidence of the urban design experts to be inaccurate. I am not satisfied that a floor to floor height of 3m for the residential units will achieve adequate internal amenity within the units.
The reduction in the floor to floor height for the commercial component of the proposal limits the flexibility of the future use of these spaces. This, combined with the sinking of the floor level within the business premises, results in a poorly proportioned elevation to Canterbury Road, where the commercial component of the ground level is squat and disproportionate to the residential accommodation over. In mixed use developments, the commercial component of the development should read on the façade as of a grander proportion and a distinctly different character to the upper residential levels of the development. These important cues are what distinguish a business centre from a medium or high density residential zone.
I do not accept that the requirement for 2.7m floor to ceiling heights for habitable rooms within the units can be cured by a condition of consent.

Inadequate internal amenity

The urban design experts agreed that 44 of 69 units comply with 2 hours of solar access on the winter solstice 63.7% because the units on the southern side of the uppermost floor (501, 502 and 505) do not receive 2 hours of sunlight to their terraces. I accept Ms Morrish's evidence that some stepping or modulation of the uppermost levels on the southern elevation could improve the sunlight access to the terraces on the southern façade on the proposal.
The cross-ventilation diagram (Ex A, dwg 702) indicates that 47 of 69 units achieve cross ventilation. According to Ms Morrish, 19 of those apartments rely on a highlight window (A105, A106, B102 and B103 and the units above these units) and effective cross ventilation is only achieved when the inlet and outlet have approximately the same area (Figure 4B.3 of ADG). The applicant submitted that only 13 of the units rely on a highlight window because four of the units on the uppermost two levels are two level apartments on a single façade and this arrangement achieves cross-ventilation. Furthermore, the units which rely on a highlight window have an ideal northern orientation. I accept that achieving cross-ventilation in units that front Canterbury Road may be academic, as the traffic noise is likely deter residents from availing themselves of natural ventilation most of the time.
I accept the agreement of the urban design experts that recesses or articulation of the Canterbury Road façade helps reduce the apparent wall length. I accept and agree with Ms Morrish's evidence that the proposed two "slots" in the northern elevation have the capacity to provide articulation and ameliorate the mass of the building bulk, but the stepping in of each slot as it gets deeper into the building somewhat defeats the goal of dividing the building into three elements when viewed from Canterbury Road and results in poor amenity for those units on either side of the slot because many of the bedrooms, including main bedrooms, only have either a narrow or a highlight window opening onto the slot.

Overshadowing of adjoining properties

The applicant submitted that the DCP 2012 controls under D1.3.4 for the rear setback on boundaries shared with a residential zone are set aside pursuant to cl 6A(2) of SEPP 65, because the design criteria for 3F Visual privacy in the ADG are met by the proposal, with a 9m rear setback for the first four levels and a 12m rear setback for the levels above.
The Council submitted that the DCP 2012 controls under D1.3.4 for the rear setback on boundaries shared with a residential zone are not set aside pursuant to cl 6A(2) of SEPP 65, because the design criteria in the ADG referred to in relation to the rear setback are to achieve visual privacy between developments, whereas the DCP controls for setbacks have a broader objective of minimising building size and bulk by setting back upper storeys and minimising amenity impacts on adjoining properties, including but not limited to visual privacy.
The applicant submitted that the design criteria under 3F Visual privacy of the ADG are not limited to achieving visual privacy and I can disregard the topic or heading in the ADG because Figure 3F.5 of the ADG refers to "resolving amenity impacts" and the content of section 3F also relates to solar access and the amenity of the rear of developments.
I accept the applicant's submission that the DCP 2012 numerical control in C7 of D1.3.4 for a rear setback on a boundary with a residential zone has no effect pursuant to cl 6A(2) of SEPP 65, because the DCP control requires a greater setback on upper levels when compared to the distances required for separation from side and rear boundaries in the ADG. Visual privacy is one of a number of potential amenity impacts and is sufficiently integral to amenity impacts to be addressing the same constraint that the DCP is seeking to address.
I accept the applicant's submission that the rear setbacks of 9m for the first four storeys and 12m for the fifth and sixth storeys complies with the design criteria for separation distances to the rear boundary in the ADG at 3F. Notwithstanding this compliance, the evidence of the urban design and planning experts suggests that some small adjustments of the building envelope on the southern side of uppermost levels could substantially improve the amount of sunlight reaching the backyards of the adjoining properties on the winter solstice. These properties are unlikely to be redeveloped in the near future given the current low yield of the development standards for the R3 zone and so it would be a desirable outcome to achieve the benchmark set by the urban design experts for 3 hours of sunlight to at least 50% of the backyards of the two adjoining properties on the winter solstice.

Conclusion

For the reasons given in the judgment, I am not satisfied that the applicant has demonstrated that adequate floor to ceiling heights are achieved or that adequate internal amenity in the residential units is achieved by the proposal.

Orders

The orders of the Court are: 1. The Applicant is granted leave to amend the application by relying on amended proposal. 2. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendments of the application for development consent, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is dismissed. 4. Development Application No. 155/2018 for the demolition of existing buildings and construction of 6 storey mixed use development and two levels of basement parking is refused. 5. The exhibits, other than Exhibits 2, A and M, are returned.

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: 28 February 2020

Contravention of the height of buildings development standard

The proposal has a height of RL74.60. The height of buildings development standard for the site is 18m. The two lift towers above the level of the flat roof and a small portion of the north-western corner of the roof of Level 5 breach the height of buildings development standard.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex L).
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (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 (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

(2018) 236 LGERA 256

(2007) 156 LGERA 446

Binnijig Pty Ltd v Canterbury Bankstown Council

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