Brunswick Project Developments Pty Ltd v City of Canada Bay

The site and its context

1. The subject site comprises two lots: Lot 1 and Lot 2, Section J in DP 11871 and is located at 375A and 377 Concord Road, at the intersection with Carrawang Street, in Concord West. The main frontage of the site is to Concord Road, the secondary frontage to Carrawang Street and the rear of the site fronting Carrawang Lane. The combined site area is 534.4 m².
2. Along Concord Road, in the vicinity of the site, is a diversity of commercial and mixed use developments. The broader surrounds of the site are characterised by low to medium density residential dwellings and residential development adjoins the lane to the rear of the site.
3. The site is located in proximity to two stands of locally heritage listed trees: the Boronia Street trees are at least 90m to the south, and the Nullawarra Street trees are located over 200m to the north east of the site.
4. The site is not listed as a heritage or special character precinct.

The proposal

1. As a result of the amended plans, the applicant seeks approval for: 1. Demolition of existing structures; 2. Construction of a three storey mixed use development comprising: three ground floor tenancies; fourteen residential units; three levels of basement car parking accessed by Currawang Lane. The residential component of the development includes four studio apartments; eight one bedroom apartments and two two-bed apartments.

Public submissions

1. During the assessment of the application the proposal was notified in accordance with the DCP and Council assessment report (Exhibit 11) identified that five individual submissions and a petition of 25 signatures were lodged with the council during the notification. Copies of these submissions were tendered (Exhibit 11). The central concerns of the community with the proposal can be summarised as: 1. The safety of the proposed traffic movements at the corner of Currawang Road and Concord Road; 2. Whether Currawang Lane has the capacity to accommodate the traffic movements generated by the development; 3. The potential for the development to exacerbate the existing traffic in the surrounding streets and in particular at the intersection of Currawang Road and Concord Road; 4. The potential for parking needs generated by the development (commercial and residential) to overflow into the surrounding streets; 5. The intrusiveness of the height of the development, which is located at the crest of Currawang Road; 6. The impact of the development on the amenity of adjoining neighbours, in particular overshadowing, loss of privacy and additional noise; 7. That the development is inconsistent with the low density, family friendly, character of the area which is valued by the residents; 8. The effect of the development on the land and property value of the existing adjoining residential properties. The preceding issues were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Planning framework

1. As the development is a residential flat building of three or more floors, containing four or more apartments the consent authority is required to give consideration the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), including the 9 design principles. These principles and controls are further articulated in the Residential Flat Design Code, which applied at the time of the lodgement of the application (RFDC).
2. In accordance with the requirements of SEPP 65, and as required by the Environmental Planning and Assessment Regulation 2000, a design verification certificate was received by registered architect (Mr Hhazi Ali, number 7542) (Exhibit 11). The accuracy of this certificate and its consistency with the current proposal before the Court is a matter of contention between the parties.
3. SEPP 55 applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment of any existing land contaminants. The compliance of the development with the requirements of this policy is a matter in dispute between the parties. Relevantly Clause 7 of SEPP55 provides a precondition to consent as follows: A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4) the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. …
4. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
5. Sydney Regional Environmental Plan (Sydney Harbour Catchment) applies to the site as it is within the designated hydrological catchment of the Sydney Harbour. The proposal is considered to satisfy the requirements of this policy.
6. Canada Bay Local Environmental Plan 2013 (LEP 2013) applies to the site. Relevant to this appeal LEP 2013 has the following aims (cl 1.2(2): a) to create a land use framework for controlling development in Canada Bay that allows detailed provisions to be made in any development control plan made by the Council, b) to maintain and enhance the existing amenity and quality of life of the local community by providing for a balance of development that caters for the housing, employment, entertainment, cultural, welfare and recreational needs of residents and visitors, c) to achieve high quality urban form by ensuring that new development reflects the existing or desired future character of particular localities, …
7. Pursuant to LEP 2013 the site is zoned B1 Neighbourhood Centre and the shop top housing proposal is permissible with consent. The objective of the B1 zone is as follows: To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
8. Clause 4.3 Height of buildings applies to the site. The proposal exceeds the maximum height mapped by the LEP. The objectives of this clause are as follows: (a) to ensure that buildings are compatible with the desired future character in terms of building height and roof forms, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.
9. LEP 2013, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
10. However, Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: (a) 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.
11. Pursuant to cl 4.4 of LEP 2013, the maximum floor space ratio (FSR) for the site is 2:1. The proposal meets this standard.
12. Relevant to the appeal LEP 2013 provides additional standards for the consideration of roof features in a development, that exceed the maximum height defined by cl 4.3. These are contained in c5.6, reproduced below: 5.6 Architectural roof features (1) The objectives of this clause are as follows: (a) to allow minor architectural roof features to exceed height limits, (b) to ensure that any architectural roof feature does not cause an adverse visual impact or adversely affect the amenity of neighbouring properties, (c) to ensure that architectural roof features are considered in the design of a building and form an integral part of a building's design. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that: (a) the architectural roof feature: (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
13. How clause 5.6 applies to the current proposal is a matter of contention between the parties.
14. The following definitions in the dictionary of LEP 2013 are relevant: building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
15. The Canada Bay Development Control Plan 2013 (DCP 2013) applies to the proposal. DCP 2013 aims (cl 1.5) to guide development in order to: 1. Build upon the City of Canada Bay Local Environmental Plan by providing detailed objectives, and controls for development; 2. Foster ecologically sustainable development; 3. Ensure development responds to the qualities of the subject site; 4. Ensure development responds to the character of the surrounding neighbourhood; 5. Minimise negative impacts of development on the amenity of adjoining properties; 6. Encourage innovative housing, commercial and industrial design; 7. Maintain and enhance the natural, built and cultural significance of heritage items; and 8. Ensure future developments will provide for a community that considers the needs of all people who live, work and visit Canada Bay, including those people with disabilities.
16. Section 6: Residential Controls, within DCP 2013, contains controls relevant to the proposed development type. Urban Context is addressed by cl 6.2 of the DCP states that an assessment of the streetscape character and site analysis is the first step in the design process and is used to ensure that the development is the best possible solution for the site and the immediate locality, and makes the best possible contribution to its surroundings. This clause has the following objective: Ensure that the character of streetscapes are appropriately conserved through careful design consideration
17. Clause 6.2 of the DCP addresses streetscape presentation and notes that the presentation of buildings in a street is the most critical element and determines the character of not only the street, but also the locality. The following objectives articulate the intent of the clause: New buildings should: O1 Reflect the dominant building pattern of the streetscape with regard to the location, spacing and proportion of built elements in the streetscape. O2 Complement and conserve the visual character of the street and neighbourhood through appropriate building scale, form, detail and finish. O3 Reinforce existing streetscape features such as building setbacks, alignments, heights and fence design. O4 Ensure that development conserves and respects significant streetscape items (such as street tree planting) and points of interest (such as views to waterways) DCP 2013 also encourages the use of similar materials, sympathetic design and building practices to maintain and enhance the visual character of Canada Bay's period streetscapes.
18. The objectives and controls in relation to environmental performance and residential amenity are addressed by Clause 6.3 of DCP 2013. Relevant to this appeal sub-cl 6.3.3: Solar Access has the following objectives and controls: O1 To maximise solar access to living areas and private open space in order to improve residential amenity. O2 To minimise the amount of overshadowing of neighbouring developments and outdoor spaces to maintain their amenity. C1 New buildings and additions are sited and designed to maximise direct sunlight to north-facing living areas and all private open space areas. C2 Direct sunlight to north facing windows of habitable rooms and all private open space areas of adjacent dwellings should not be reduced to less than 3 hours between 9.00am and 3.00pm on 21 June.
19. The management of potential visual and acoustic impacts of development is addressed in cl 6.3.4 of DCP 2013 with the following objectives: O1 Ensure the siting and design of building provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open space. O2 To provide personal and property security for residents and visitors.
20. The objectives and controls in relation to safety and are addressed by Clause 6.3.6 of DCP 2013 as follows: O1 To ensure a safe physical environment by promoting crime prevention through design. O2 To ensure the security of residents and visitors and their property and enhance community safety and well-being. O3 To ensure a development is integrated with the public domain and contributes to an active pedestrian-orientated environment. O4 Ensure effective use of fencing or other means to delineate private and public areas.
21. Cl 6.4.5 in DCP 2013 addresses the height of buildings. The clause states that height is an important control because it has a major impact on the physical and visual amenity of a place. The clause has the following objectives: O1 To ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality; O2 To minimise visual impact, disruption of views, loss of privacy and loss of sunshine to existing residential development; O3 To reduce the visual impact of development when viewed from the Parramatta River as well as other public places such as parks, roads and community facilities.
22. Pursuant to cl 6.4.7 the Landscaping the development standard for the site is to provide 10sqm of private open space per dwelling to achieve the following objectives: O1 To enhance the existing streetscape. O2 To enhance the quality and amenity of the built form. O3 To provide privacy and shade. O4 To minimise the extent of hard paved areas and facilitate rainwater infiltration. O5 To preserve and enhance native wildlife populations and habitat through appropriate planting of indigenous vegetation. O6 To ensure buildings do not dominate or degrade the quality and character of the landscape. By applying the rules of thumb in the RFDC, the proposal requires deep soil areas of 25% of the site and communal open space between 25-30% of the site area.
23. The relevant provisions of DCP 2013 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.
24. Whether the Court accepts the applicant's clause 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.
25. Given these provisions must be satisfied to provide the consent authority power to approve the proposed development I will address the Cl 4.6 variation request, prior to consideration of the merit contentions.

Expert evidence

1. The joint conferencing process sought to address the remaining issues in contention as detailed in [4].
2. Stuart Harding (for the applicant) and Justin Keen (for the respondent) provided a joint report on planning issues (exhibit 2). Rhys Hazell (for the applicant) and Brendan MacGillicuddy (for the respondent) provided a joint report on traffic issues (exhibit 3).
3. At the conclusion of the joint conferencing process a joint report was prepared. The planning experts concluded that the contentions in relation to traffic and access, had been resolved subject to: ..reconfiguring the driveway arrangement such that exiting vehicles approach the driveway arrangements such that exiting vehicles approach the driveway further to the north (in the basement). The experts have determined this amendment would achieve a minimum sight distance of 22m.
4. The applicant has agreed to this reconfiguration that whilst not meeting the recommended sight distance of 30m in AS/NZS 2890.1:2004 is, in their view, and appropriate outcome based on the following: ● Low traffic volumes in the laneway; ● Low vehicle speeds; ● The 22m sight line distance is reflective of a 30km/hr speed environment (rather than 40km/hr); ● Sight distance requirements in AS/NZS 2890.1:2004 do not consider the gradient of the frontage street. The laneway has a 2% fall north to south, with northbound vehicles travelling up a small incline when approaching the site access driveway; and ● The proposed layout achieves a better design outcome than the existing residential and commercial properties that have access via the laneway.

Is the clause 4.6 variation accepted?

1. It was agreed between the planning experts in the joint report that the proposal before the Court exceeds the maximum height limit by 2m (exhibit 2). The relevant objectives of the height standard are: (a) to ensure that buildings are compatible with the desired future character in terms of building height and roof forms, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.
2. As outlined in Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC1001, cl 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
3. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
4. Mr Harding (for the applicant) provided a written request under cl 4.6(3) which seeks to justify the contravention of the height standard (Exhibit E). The written requests states that the variation to the height standard can be supported because: 1. The proposal is consistent with the zone objectives in that it includes commercial floor space on the ground floor of the development; 2. The proposal is consistent with the objectives of the building height standard because the buildings are compatible with the desired future character in terms of building height and roof forms and that is this in part achieved by: 1. the stepping down of the building mass towards the rear lane and the adjoining residential zone to allow an appropriate transition 2. the provision of significant landscaping to the communal open space on Level 3 3. a reduction in the FSR proposed by the development to below the maximum allowable on the site to provide additional landscaping within the proposed development.
5. As discussed below it is evident from the review of the planning experts that these attributes, 2(a) through (c) above, are not contained in the plans before the Court. The zone objectives
6. The Court, in considering the question of consistency in relation to the zone objectives, has utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council [1992] 77 LGERA 21, at [21] as follows: the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible.
7. I accept that it can be reasonably argued the proposal is consistent with providing a range of small-scale retail, business and community uses that serve the needs of people who work or live in the surrounding neighbourhood. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives. The Height standard objectives:
8. The objectives of the height standard clause are as follows: (a) to ensure that buildings are compatible with the desired future character in terms of building height and roof forms, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.
9. It was Mr Keen's evidence that the roof element over the lift area (the area of breach) is visually obtrusive and uncharacteristic of other roof structures in the vicinity. It is his view the structure does not meet the objectives contained in clause 5.6 - architectural roof features in LEP 2013, as it results in adverse visual impact is not integral with the building. It is the conclusion of his assessment that the proposed variation is not consistent with the objectives of the height standard as it is not compatible with the desired future character and does not minimise visual impact.
10. Mr Harding's evidence was that the design of the roof structure is an attempt to provide more visual interest to the plant room than may otherwise be the case and will provide amenity to users of the common open space located on the roof. During the proceedings Mr Harding's advised the Court that in his view both the treatment of the roof element (and associated access design) and the massing of the proposal could be improved to provide a better environmental outcome. In terms of the massing of the proposal it was his view that a development that emphasised the corner and stepped down the site may be a preferred outcome, but notwithstanding this the current design is acceptable. This is consistent with the justification provided in the clause 4.6 variation before the Court (Exhibit e) to substantiate the variation. However a stepped building mass it is not the form of development identified in the architectural plans before the Court, and is one of the key inconsistencies between the Cl 4.6 variation request and the architectural plans.
11. The clause 4.6 written requesr (exhibit B) states the desired future character is also informed through the application of the requirements contained within Part 6 and 7 of DCP 2013. Of particular note, other controls in Part 7.2 relating to building massing and facade treatment and the particular requirements for corner sites. The request references Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at 26 which states: For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment.… The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping.
12. Having regard to all of these matters it notes that the amended proposal does step down the allotment following the sloping topography… does not present either elevation is a single block form, with both vertical and lateral breaks in the facade and external wall height… and provides a physical transition, respecting the scale and potential for and amenity impacts on (adjoining) residential.
13. The current development plans before the court has a southern elevation that in the opinion of Mr Keen provides little articulation in a location that is highly visible result will result in excessive bulk and scale when perceived from Concord Road.
14. With the benefit of a site inspection, I accept the evidence of Mr Keen and the argument presented in the Clause 4.6 variation that the breach of the development standard in the current development proposed does not meet the objectives of the height standard without ameliorative changes to massing, landscaping and potentially a reduction in floor space ratio. In particular it does not minimise visual impact and is not of a building form that is compatible with the desired future character is established by the applicable development controls.
15. For these reasons, and pursuant to clause 4.6 (4)(a)(ii) I find the proposed development is inconsistent with the objective (a) and (b) of the height standard and as such development consent must not be granted. In addition I find that on the basis of the evidence before the Court the applicant has not established, as required by clause 4.6(b) that there are sufficient planning grounds to justify the contravention of the development standard for the following reasons: 1. The Clause 4.6 variation request contains a number of errors and relies on a number of aspects of the development to justify the departure that are not present in the version of the plans before the Court, as detailed in [42] above making the rest not well founded; 2. The agreed evidence of the planning experts is that a better environmental outcome is able to be achieved by the alternative development plans detailed in Exhibit G or an alternative proposal that steps down the site from a high point that emphasises the corner and/ or provides an alternative roof treatment to the upper level; and 3. I find the proposed variation is not well founded and has failed to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
16. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.

Alternative Plans

1. During the course of the proceedings the applicant sought feedback from the experts, on an alternative design that was tendered as Exhibit G. This proposal made a number of overall changes to the proposal, which are summarised below: 1. The inclusion of a void space at the southern boundary of the site to increase cross ventilation; 2. Amendments to apartment configurations that alter, among other things the solar compliance of the development and the apartment areas; 3. A reconfiguration of the access to the roof top and the architectural treatment of the roof structures; 4. Increased the overall height of the development; 5. Created an access to Commercial 01 and 02 from Concord Rd; and 6. Created a portion of the communal open space on the roof top as non-trafficable;
2. In submissions the applicant sought consideration by the court of an 'amber light approach' to the finalisation of the proceedings. In Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096 at [13] Senior Commissioner Moore defined the approach to an 'Amber light' consideration as follows: "Is the proposal as put to the Court capable of approval?" If the answer to that is no, I then proceed to ask myself the question, "Is the proposal capable of approval in some modified form, consistent with the original application? That is, does it get the amber light? And if so, what can be done to require those modifications?" If the amber light is satisfied, as in traffic lights, amber can change to green. If it is not possible to find an approvable development, then the answer must be the red light and the appeal refused.
3. Following his acceptance that the Court had no power to approve the development due to the failure of the cl 4.6 variation, Mr Clay invited me to contemplate taking an "amber light" approach to the development. In support of this he contended that there was sufficient particularity in the proposal detailed in Exhibit G for there to be certainty for the Court.
4. I am unprepared to do so for the following reasons: 1. The development proposed in Exhibit G relies on a greater exceedance of the height standard than the proposal before the Court. As detailed in [43] I concur with the conclusion of the experts and the representatives of the parties that there is no justification before the Court that demonstrates: 4.6(3)(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard. 1. The Clause 4.6 request that is before the Court (Exhibit E) argues to achieve a development that satisfies the objectives of the height control requires material changes to building form, beyond those proposed in Exhibit G, and what could be reasonably considered in an amber light approach.
5. As such I have not made directions in relation to these plans.

Findings

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA/2015/0014 for the demolition of existing structures and construction of a four storey mixed use development and associated basement parking at 375A and 377 Concord Road, Concord West is refused for the reasons detailed in this judgement. 3. The exhibits are returned with the exception of Exhibit 1, D and E. ……………. D M Dickson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2016