Broadview Group Pty Ltd v Cumberland Council

Issues

1. The Council contends, in summary, that the height of the proposal will have an adverse impact on the character of the locality by adding significantly to the bulk, scale and density of the development.

The site and its context

1. The site is located within the Auburn Town Centre on the western side of Auburn Road and extends through to the eastern side of Harrow Road. A narrow portion of the site extends to Beatrice Street at the rear of the properties fronting Auburn Road.
2. The site is irregular in shape and has an area of 4,894sqm, with a frontage to Auburn Road of 36.62m and to Harrow Road of 54.94m and an overall depth of approximately 100m.
3. The Baptist Church and hall to the north of site at 16 Harrow Street is listed as an item of local heritage (Item 2, Schedule 5, Auburn Local Environmental Plan 2010).
4. Auburn Public School is located across two nearby campuses, on both the north eastern and south-western corners of Beatrice and Auburn Streets.

Relevant strategic planning background to the approved development and the proposal

1. Auburn Local Environmental Plan 2010 (LEP 2010) was adopted by Council on 12 May 2010 and commenced on 29 October 2010.
2. The height of buildings development standard for the site at the commencement of LEP 2010 was 36m, with properties to the north, east and south of the site subject to a height of buildings development standard of 27m. The height of buildings development standard for the site remains 36m, with development to the north, south and east of the site now subject to a height of buildings development standard of 38m (LEP 2010 Amendment No 8 11 April 2014).
3. The floor space ratio (FSR) development standard for the site at the commencement of LEP 2010 was 3.6:1, with properties to north, east and south of the site subject to a FSR development standard of 0.3:1. The FSR development standard for the site and properties to the north, south and east of the site is 5:1, subject to any relevant provisions of cl 4.4 of LEP 2012 (LEP 2010 Amendment No 8 11 April 2014).
4. The amending LEP 2010 No 8 was preceded by a report titled, "Auburn and Lidcombe Town Centre Density Study", prepared by GM Urban Design & Architecture in 2010 (exhibit 9, ff 27-50) which included consideration of the B4 zone in the Auburn Town Centre. The brief from Council for the report was to consider whether "there is an urban design case for increasing the FSRs and height for the B4 zone for Auburn Town Centre" and the suggested height increase in the B4 zone by Council was 56.5m and FSR 5:1 (exhibit 9, f 27). The report's author favoured the transitional approach of providing greater height in the core of the town centre with a reduction in scale away from the core and recommended detailed urban design analysis of all blocks within the B4 zone if Council was minded to increase the height and FSR within the B4 zone.
5. AECOM was commissioned in 2011 by the Council to undertake the Auburn City Urban Design Study (exhibit 9, ff 65-139) to test and recommend appropriate floor space ratios and corresponding maximum building heights within land zoned B4 and R4. Six sites were selected in the B4 zone for testing, which did not include the site. The study concluded that a FSR increase of 5:1 in the B4 zone was appropriate in some areas in conjunction with good urban design principles and Council could consider granting bonus FSR and height for sites that meet certain criteria, such as minimum site areas, design excellence or contribution to public domain (exhibit 9, f 56).
6. The Council resolved, on 16 April 2014, to accept in principle the offer of a Voluntary Planning Agreement submitted with the development application for the site, DA 368/2013, and resolved that a planning proposal be prepared to increase the height controls [sic] while maintaining floor space ratios in the Auburn Town Centre in order to provide building envelopes that will achieve better urban design outcomes (exhibit 9, ff 6-7). The earlier iteration of DA 368/2013 at the time of this Council resolution was for towers of 17 and 19 storeys.
7. On 17 July 2014 the JRPP considered the development application DA 368/2013 for 17 and 19 storey towers on the site. Council's report to the JRPP recommended approval, stating that although the proposed towers exceeded the maximum height of buildings development standard, the proposal would be compatible with the desired scale and character of the town centre (exhibit 8, f 11). Notwithstanding the Council's recommendation for approval, the JRPP found that the height of the proposed development failed to satisfy the requirements of cl 4.6 and that the proposed development was not compatible with its surrounds. The proposed development was amended in response to the findings of the JRPP. The Council's report on the amended proposed development then recommended refusal of the development application. On 5 March 2015 the JRPP approved DA 368/2013 for two 14 storey towers.
8. JBA was commissioned by the Council in 2015 to provide advice and recommendations for suitable heights and FSR for the Lidcombe and Auburn Town Centres (exhibit 8, ff 347-457). The site is located within an area identified in the report as Precinct 9, on the south-western corner of the Auburn Town Centre. The report tested two precincts only, 2 and 14, by modelling building envelopes based on the variables of site area, gross floor space and height. The report concluded that the testing of Precinct 14 (which modelled envelope for 60m heights with FSR of 5:1) revealed that a FSR of 5:1 was too high for a 38m maximum height (the current maximum height in Precinct 14) and recommended more realistic FSRs for lots between 1800-3000sqm (exhibit 8, f 406). The report recommended that the FSR of 5:1 in Precinct 14 be retained with an increase in maximum height of buildings to 60m. This recommendation was based on achieving commercially viable floor plates in the B4 zone, as well as encouraging slender tower forms over 4 storey podiums. The report included the following in relation to Precinct 9, which includes the site (referred to as the 'Venture Site') (exhibit 8, f 445): Precinct 9 - B4 Zone, 45m HOB, 5:1 FSR Located on the peripheries of the Auburn Town Centre, along the main north-south spine of Auburn Road, Precinct 9 runs mid block across two north-south aligned blocks. It historically included a mix of main street, fine grain development types along Beatrice Street and a mix of uses and strata title development in Auburn Road. This Precinct is an area currently undergoing transition. Following approval by the JRPP of recent Development Application No. DA368/2013 ( the 'Venture Site'), which included heights up to approximately 45m (9m over the permitted 36m maximum height limit), there is a new built form precedent established for the Precinct. This Development Application demonstrated the disparity of the existing height and FSR controls and showed how slender, taller towers can have a positive urban outcome and were appropriate in this context. Further contributing to the emerging future character and transitional changes affecting Precinct 9, is the South Auburn Planning Proposal (PP- 3/2013). Affecting land immediately to the south of the Precinct (land bound by Auburn Road and Beatrice, Susan and Helena Streets), it is proposed to extend the B4 zoning to a portion of this block and increase the remainder to R4. In light of this context, it is considered that heights greater than 36m are appropriate in this Precinct. Heights should reflect the emerging future character yet be sensitive to the transitional nature of the Precinct to lower scale residential development to the south. It is recommended that heights be increased to 45m, similar to Precincts 6 and 8, which frame the core of the Town Centre and which are sensitive to the proposed 21m and 16m maximum heights proposed to the south.
9. The Cumberland Independent Hearing and Assessment Panel (CIHAP) resolved on 17 November 2016 to recommend that the Council publicly exhibit the Draft Auburn and Lidcombe Town Centres Strategy (based on the JBA report). The recommendations included the following:

• that Council staff investigate the potential for provision for design excellence as part of the preparation of a comprehensive LEP;
• that Council investigate the introduction of minimum lot sizes in the Auburn LEP 2010 for the B4 zone linked to the appropriate FSR and height; and
• that Council investigate the height and FSR objectives for the B4 zone in the Auburn LEP 2010.

1. The recommendation of the CIHAP for Precinct 9 was for a FSR of 5:1 and maximum building height of 45m. The recommendation of the CIHAP for the precinct adjacent and to the north of the site (and north of Precinct 9) was for a FSR of 5:1 and maximum building height of 55m. The JBA rationale for Precinct 9, with which the CIHAP agreed, was as follows (Appendix D of the Strategy): •Peripheral precinct to the south of the town centre. •Recommended height increase will align this peripheral precinct south of the railway line to the same height as proposed for the peripheral precincts north of the railway line. •The 45m approval for the former Venture site establishes a new precedent.
2. The Draft Auburn and Lidcombe Town Centres Strategy (the Strategy) (exhibit 8, tab 11) was exhibited earlier this year and included the following explanation: This strategy has been prepared in recognition that Auburn and Lidcombe Town Centres are at a critical transition point. Substantial increases in density (floor space ratio, FSR) were made in these centres in 2014, however, the resulting development to date, while meeting minimum requirements, has not provided the expected contribution aesthetically or functionally to the centres. It became apparent that there is a disconnect between the heights and FSRs, with heights often insufficient to encourage the quality of design anticipated. Accordingly, Council engaged JBA consultants to undertake an investigation of the heights in Lidcombe and Auburn Town Centres, and also to review a limited number of zonings and floor space ratios (FSRs). The strategy will be used to: • Inform the preparation of a planning proposal to amend zoning, floor space and height controls for Auburn and Lidcombe Town Centres in Auburn LEP 2010

Planning framework

1. The site is zoned B4 Mixed Use pursuant to LEP 2010 and the proposal is permissible with consent. The objectives of the B4 zone, to which regard must be had at cl 2.3(2) of LEP 2010, 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. • To encourage high density residential development. • To encourage appropriate businesses that contribute to economic growth. • To achieve an accessible, attractive and safe public domain.
2. The Council contends that the proposal is inconsistent with the objectives for the height of buildings at cl 4.3(1) of LEP 2010, which are: (a) to establish a maximum height of buildings to enable appropriate development density to be achieved, and (b) to ensure that the height of buildings is compatible with the character of the locality.
3. The Council contends that the proposal is inconsistent with the design quality principles 1 and 2 in Schedule 1 of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), as follows: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Expert evidence

1. The applicant relied on the expert evidence of Mr Ben Haynes (planning) and Mr Joe Rowling (urban design) and the Council relied on the expert evidence of Ms Clare Brown (planning).
2. Ms Theresa Southwell, Senior Strategic Planner at Cumberland Council (and formerly Senior Strategic Planner at Auburn Council from June 2013, prior to the amalgamation of Auburn and Holroyd Councils in May 2016), gave evidence in relation to recent developments in strategic planning at the Council.

Public submissions

1. Two resident objectors provided evidence at the commencement of the hearing on site. Their concerns can be summarised as:

• The proposal will increase the traffic in an already congested area and the increase in traffic will compromise the ability of emergency vehicles to get into and out of Auburn and will pose a risk to school children crossing the street between the two campuses of the primary school;
• The proposal will overshadow the primary school.

1. The Council does not raise a contention regarding traffic generation in relation to the proposal and I accept the Council's assessment of the acceptability of this aspect of the proposal.
2. The planning and urban design experts agreed, based on the shadow diagrams (exhibit B DA.118B and DA.119B), that the additional overshadowing caused by the proposal on the winter solstice between 9am and 3pm does not fall on outdoor play areas of either of the primary school campuses and that the performance of the proposal in relation to overshadowing of the primary school meets the requirements of the Development Control Plan. I accept their agreement.

Consideration

1. In order for there to be power to grant development consent for a development that contravenes development standards in LEP 2010, I must be satisfied that the proposal is consistent with the objectives of the development standards and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2010); that the applicant's written request has adequately addressed that compliance with the development standards is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2010) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2010).
2. The applicant's written request (exhibit C) justifies the non-compliance of the proposal with the height of buildings development standard of 36m for the site on the following bases:

• It is acknowledged by Council that the existing development standards for maximum height and FSR are incongruent and it is not possible to achieve the yield of FSR 5:1 within the maximum height of 36m on the site. The infrastructure and planning of the Auburn Town Centre is based on the higher yield of FSR 5:1.
• The JBA urban design study, adopted by Council and exhibited in the Strategy, recommends 45m maximum height for the site, which will reduce the numerical non-compliance with the height of buildings development standard when the recommended maximum heights are incorporated in LEP 2010 by an amending LEP.
• The JBA report recommends properties to the north of the site have a maximum height of 60m with a FSR of 5:1 and there is no justification for those properties having the same FSR with a maximum height 15m higher than the site.
• A 60m maximum height for the site is more appropriate.
• The proposed building height of 53.7m will provide a transition between the 60m high future development to the north and the 45m future development to the south of the site.
• The impact of overshadowing on the public domain caused by the proposal is negligible.
• The provision of public amenities at ground level on the site has resulted in a penalty to overall floor space yield as the approved development has a FSR of 4.21:1 on a site with a FSR development standard of 5:1.
• The proposal does not compromise the amenity of apartments in the towers as the building separation is maintained.
• The proposal is consistent with the objectives of the height of buildings development standard as the emerging and anticipated character of the area is tower forms above podiums.

Has the height of buildings development standard in LEP 2010 been virtually abandoned or destroyed?

1. In Wehbe v Pittwater Council (2017) 156 LGERA 446 [47], the Chief Judge identified a fourth way to establish that compliance with a development standard is unreasonable or unnecessary, as follows: 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary. [cited cases omitted] 47 A fourth way is 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 and unreasonable. [cited cases omitted] 51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act). [cited cases omitted] 52 The requirement that the consent authority form the opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant "to consider whether consent to the particular development application encourages what may be summarised as considered and planned development" or conversely may hinder a strategic approach to planning and development. [cited cases omitted]
2. The parties agreed that the height of building development standard for the site has been effectively abandoned by the Council's own actions; however, the respondent submits that the proposed 45m maximum height for Precinct 9 in the Strategy is the standard which the Council is now committed to for this portion of the Auburn Town Centre.
3. I accept the agreement of the parties that the height of buildings development standard for the site has been abandoned by the Council's own actions, not simply in approving a development on this site that significantly exceeded the height of buildings development standard of 36m, but by the Council's own consistent acknowledgment that the 5:1 FSR is unable to be realised with an acceptable urban design outcome within a maximum height of 36m in the B4 Mixed Use zone and Council's strategy to rectify this inconsistency by commissioning a number of reports, particularly the JBA report, with a view to amending LEP 2010 accordingly. Furthermore, the JBA report based its recommendation for a 45m height of buildings development standard in Precinct 9 on the approved development, because it provided "a new built form precedent established for the Precinct". As the only consolidated site within Precinct 9 (other than the primary school), this site has provided the only opportunity for Council to accept an exceedance of its height of building development standards within the later identified Precinct 9, which is a circumstance that makes it impossible for "consents", in plural, to depart from the standard, as contemplated by the Chief Judge in Wehbe at [47]. The statement by JBA acknowledges that the approved development provides a precedent for the height of any future applications in the precinct, prior to an amending LEP.

Is the proposed 45m maximum height for Precinct 9 the new standard?

1. The most elaborate of the explanations for the 45m maximum height recommendation for Precinct 9 in the Auburn Town Centre is contained in Appendix D to the Strategy, quoted at paragraph 19. The statement includes three dot points and the endorsement of the CIHAP. I note the following in regard to each of the dot points:

• 'Peripheral precinct to the south of the town centre' suggests that Precinct 9 is intended to provide a transitional stepping of height from the 55m high precinct to the north, because Precinct 9 is adjacent to the southern border of the Auburn Town Centre along Beatrice Street. The precinct to the north has the same FSR of 5:1 but the proposed maximum height is 10m higher than Precinct 9 at 55m. It is not clear in the Strategy how this inconsistency between the precincts is intended to manifest in terms of building envelopes.
• 'Recommended height increase will align this peripheral precinct south of the railway line to the same height as proposed for the peripheral precincts north of the railway line' is not made out by the map of proposed height of buildings in the Auburn Town Centre in Appendix C of the Strategy, because there are no 45m maximum height precincts to the north of the railway line. Furthermore, it is farfetched to suggest that peripheral precincts on either side of the Auburn Town Centre will be perceived as "aligning" on the basis of a shared maximum height of buildings development standard, without any consideration given to the existing topography of the town centre, vantage points for public domain views of the future town centre, building typology and so on.
• 'The 45m approval for the former Venture site establishes a new precedent' suggests that the reason behind the 45m maximum height recommendation is simply based on the height of the approved development.

1. I do not accept the Council's submission that the proposed 45m maximum height for Precinct 9 in the Strategy is the standard which the Council is now committed to for this portion of the Auburn Town Centre. The Council has not yet prepared a planning proposal based on the Strategy. The 45m maximum height for Precinct 9 has not been comprehensively analysed or tested; nor has the Council prepared a Planning Proposal based on the Strategy. It is early days for the future height of buildings development standard for Precinct 9 and at this time it is uncertain.

Masterplan for the Auburn Town Centre

1. The planning of the Auburn Town Centre remains incomplete without a masterplan. Determining maximum FSR and heights for the town centre is not town design. A masterplan, informed by the JBA report along with fine grained urban design, heritage and traffic/pedestrian studies, and based on the existing constraints and opportunities of the town centre, would provide a vision for Auburn and its public spaces to guide the Council in its decision-making, inform a development control plan and provide greater certainty to developers. This missing layer of design is alluded to by the CIHAPs requests for additional information in their resolution of 17 November 2016, partly quoted above at paragraph 18. Given the considerable investment anticipated by the "up-zoning" of the Auburn Town Centre, it would be unfortunate for this once off opportunity to create a well-designed, vibrant and successful town centre for Auburn to be lost.

The applicant's written request

1. I have considered the applicant's written request under cl 4.6 of LEP 2010 and I am satisfied that the written request justifies that compliance with the height of buildings development standard in cl 4.3 of LEP 2010 is unreasonable in the circumstances of the appeal, as the planning objective is not achieved by the standard, for the reasons set out in the following paragraphs.
2. The Council submits that the proposal is consistent with the aims of LEP 2010 and the objectives for development within the B4 Mixed Use zone. On the basis of all of the evidence before me, I accept that submission.
3. I am satisfied that the proposal is consistent with the objectives for the height of buildings development standard, to establish a maximum height of buildings to enable appropriate development density to be achieved, and to ensure that the height of buildings is compatible with the character of the locality. I accept the agreed evidence of the planning and urban design experts that there is a 'disconnect' between the FSR and height development standards for the site and within the Auburn Town Centre. The proposal achieves a reasonable development yield, within the FSR development standard, for the site and the proposed height enables that appropriate development density to be achieved.

Findings

1. I am satisfied that the height of the proposal is compatible with the character of the locality. The planning and urban design experts agreed that the proposal will have a minimal impact upon the streetscape of Auburn Road and Harrow Road when viewed from the surrounding streets. I accept the evidence of Messrs. Haynes and Rowling that the Auburn Town Centre is transforming into a sub-regional centre and that tower forms over podiums are encouraged by the Strategy and that the proposal accords with this emerging character; because it provides proportionally tall tower forms, it is commensurate to the predicted higher buildings immediately to the north in the adjacent precinct and it will not disrupt the building height hierarchy that is being pursued by the Strategy. I accept the applicant's submission that the proposal does, to some extent, transition the building heights between the precinct to the north and the edge of the Auburn Town Centre.
2. The objectives of cl 4.6 of LEP 2010 are to provide an appropriate degree of flexibility in applying certain development standards to particular development, and to achieve better outcomes for and from development by allowing flexibility in particular circumstances. The VPA was entered into by the applicant on the basis of realising a greater proportion of the FSR development standard than was ultimately approved by the JRPP and the applicant has delivered its end of the bargain in the form of public facilities and a thoroughfare on the site. I am satisfied that the proposal represents the application of an appropriate degree of flexibility in balancing both the height of buildings and FSR development standards that apply to the site and considering all of the circumstances, I am satisfied that the proposal achieves a better outcome because I accept that the provision of public amenities at the ground level on the site has resulted in the approved development not realising a fair proportion of its development yield.
3. I am satisfied that the proposal and the approved development achieves the desirable urban design outcomes of providing distinct tower forms, achieving a mix of building heights and diversity of built form and importantly, enhancing the public domain by providing publicly accessible village square and through site link.
4. There has been a high level of uncertainty under the previous Council as a result of the adoption of ill-considered development standards, then the abandonment of the height of buildings development standard and the preparation of various studies to determine an appropriate density of development in the Auburn Town Centre.
5. I have had no regard in my consideration of this appeal to the diagrams, emails and notes made by Council staff for the purpose of exploring various options for development standards within the Auburn Town Centre (exhibits D and 12) and I accept Ms Southwell's evidence that these items were prepared for internal discussions only, as part of the strategic planning process within Council and were not intended to represent a view of what the future development standards for the Auburn Town Centre might be.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 48/2017, to add three additional levels of residential apartments to Tower A and two additional levels of residential apartments and a communal open area to Tower B and modify basement levels, of an approved development, at 95-105 Auburn Road and 18 Harrow Road, Auburn is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, A and B, are returned.

Susan O'Neill Commissioner of the Court Annexure A (584 KB, pdf)

Amendments 06 September 2017 - Annexure A attached to Judgment 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: 06 September 2017