C-Corp Nominees Pty Ltd v Inner West Council - [2022] NSWLEC 1064 - NSWLEC 2021 case summary — Zoe

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C-Corp Nominees Pty Ltd v Inner West Council

[2022] NSWLEC 1064

Land and Environment Court (NSW)|2021-12-14

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-12-14

Catchwords

[2005] NSWLEC 191 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94
[2016] NSWLEC 7 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Wehbe v Pittwater Council (2007) 156 LGERA 446

Source

Original judgment source is linked above.

Catchwords

[2005] NSWLEC 191 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94[2016] NSWLEC 7 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Wehbe v Pittwater Council (2007) 156 LGERA 446

Judgment (35 paragraphs)

[1]

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/2020/0691) by Inner West Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks consent for demolition of the existing structures on the site and construction of a four storey residential flat building to be constructed over basement carparking. The development is proposed at 5 Bruce Street, Ashfield (Lot 2 in DP 656147).
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.
Since the filing of the appeal the development application was amended by the Applicant on 26 October 2021. The amendments to the development application can be summarised as:

Deletion of the third floor and a corresponding reduction in overall building height;
Reduction in the number of rooms from 16 to 11, corresponding reduction in carparking;
A decrease in gross floor area (GFA) and floor space ratio (FSR);
An increase in deep soil area and communal open space;
Introduction of a pitched roof to the front of the building;

The joint conferencing of the experts, and therefore the evidence in the proceedings, address the development application as amended (the development application).
Despite the preceding amendments the Respondent maintains that the development application should be refused on the following grounds: 1. That the development application should be refused as Residential Flat Buildings are not a permissible use in the R2 Low Density Residential zone and the Applicant has failed to establish that the site benefits from existing use rights. 2. That the demolition of the existing building and the design of the proposed new building will result in an unacceptable impact on the heritage significance of the Federal Fyle Heritage Conservation Area (HCA) and heritage items in vicinity of the site. 3. That the proposed development is of excessive height and fails to comply with the maximum height standard under Ashfield Local Environmental Plan 2013 (LEP 2013). Further, the written request pursuant to cl 4.6 of LEP 2013 does not meet the required states of satisfaction for the Court to uphold the request to vary the standard. 4. That the proposed development is of excessive GFA and fails to comply with the maximum FSR standard under LEP 2013. Further, the written request pursuant to cl 4.6 of LEP 2013 does not meet the required states of satisfaction for the Court to uphold the request to vary the standard. 5. A comprehensive site analysis has not been completed and further that the design of the proposed development has not been guided by an understanding of the characteristics of the site and the locality. 6. That the proposed development has an unacceptable impact on the streetscape of Bruce Street. 7. The proposed development will have significant and unacceptable impacts on the residents of adjoining properties and the breach of the FSR and height controls exacerbate these impacts. 8. That the design of the proposed building will afford a poor level of amenity to the future residents of the development. 9. The development constitutes a significant overdevelopment of the site. 10. That Residential Flat Buildings are not a permissible use in the R2 Low Density Residential zone and the Applicant has failed to provide adequate evidence that the site benefits from existing use rights.

[3]

Subject site and context

The subject site is an irregular, rectangle shaped lot with a slayed frontage to Bruce Street, Ashfield. The site is relatively flat with a minor cross fall and has an overall area of 921.8m². The site is located on the western side of Bruce Street, between Ormond Street and Elizabeth Street. It is located approximately 500m from Ashfield train station and 160m from Ashfield Park.
The Statement of Environmental Effects (SEE) describes the existing development as follows: "Currently situated on the site is a 2-storey Victorian residence constructed in the mid -1880's which has been modified to a residential flat building comprising 2 apartments, one on the ground floor and one on the first floor. The ground floor flat consists of three bedrooms, lounge, dining, kitchen, two bathrooms and two laundries. The first floor flat consists of two bedrooms, lounge, bathroom and eat in kitchen. There is a brick garage located in the south-eastern corner of the site and a small metal shed is located in the north-western corner of the site. ..." (Exhibit F)
The subject site is located in a HCA, the bounds of which correspond to the extent of the R2 Low Density Residential zone under LEP 2013.
Part C13 Federal Fyle, Ashfield of Chapter E1 of the Comprehensive Inner West Development Control Plan 2016 (DCP 2016) notes that the area of the HCA is identified as having aesthetic significance for its varied streetscapes. The statement of significance is extracted below: "The Federal-Fyle Heritage Conservation Area is of local heritage significance. The area is of historical significance as an area developed after 1879, predominantly in the Federation to Inter-war period, with its variety of housing periods and styles reflecting the different subdivisions and periods of subdivision during its development, some of which involved building covenants to ensure development of higher quality housing. The area is of aesthetic significance for its varied streetscapes within the development period 1879-1940s encompassing predominantly detached single storey houses in Victorian Filigree, Federation Queen Anne and Interwar California Bungalow styles, however also including Federation period semi-detached and detached weatherboard houses and one 2-storey Inter-war Art Deco style flat building. The early 20th century street tree plantings of brush box in the carriageways of Oak Street and Federal Avenue increase the aesthetic appeal of these streetscapes."
Building rankings for the main buildings within the HCA are provided at Part C13, Federal Fyle, Ashfield, of Chapter E1 of DCP 2016. The subject site is ranked as 'detracting' along with the adjoining residential flat building at 7-7A Bruce Street. The adjoining property, 3 Bruce Street, however, is identified as a heritage item. An extract from LEP 2013 showing the identified heritage items is extracted below (the subject site is circled): Figure 1: Extract of LEP 2013: Heritage Map

[4]

Public Submissions

The original development application was notified in accordance with DCP 2016 for a period of 28 days. The Respondent received 39 submission objecting to the development. The development application was renotified by the Respondent between 26 November and 17 December 2020. The concerns raised in submissions received from both notifications can be summarised as follows: 1. That a residential flat development is prohibited in the low density residential zone and cannot be approved. 2. The existing use of the site is for a dual occupancy which is a permissible use and therefore the site does not benefit from existing use rights. 3. Further, the evidence of the Applicant does not demonstrate that if the site did have existing use rights that those rights remain and have not been abandoned. 4. The proposed development will result in a loss of solar amenity for the following apartments in 7a Bruce Street: Apartment 17, 18, 19, 20, 21, 22, 25, 28 and 29. 5. Further, the development will result in loss of view/outlook from the following apartments in 7a Bruce Street: Apartment 17, 18, 19, 20, 21, 22, 24, 25, 27, 28 and 30. 6. Finally, the development will result in a loss of privacy from the following apartments in 7a Bruce Street: Apartment 17, 18, 19, 21, 25, 27, 28 and 29 as well as the common open space. 7. Concern that the development will result in a loss of privacy to 15 and 17 Wallace Street, 1 and 3 Bruce Street and the rear yard of 16 and 22 Federal Avenue. 8. Concern that the development will result in overshadowing of 22 Federal Avenue. 9. That the proposed development will impact on trees on the adjoining properties. 10. The assertion that the proposed development provides a transition in height from the existing residential flat building at 7-7A Bruce Street to the single storey residential dwelling at 3 Bruce Street is false. The proposed development is four storeys, thus no transition is provided. Further, the proposed development is of a higher density than the existing flat building at 7-7A Bruce Street. 11. The development has an inadequate front setback and a bulky uncharacteristic design. 12. The proposed landscaping is inadequate and will not provide any canopy trees. 13. The Applicant has provided inadequate geotechnical information to confirm the suitability of the proposed excavation. Concern that the excavation and the construction works will result in damage to adjoining properties due to the lack of setback. 14. The development will result in additional stress on the areas outdated water supply system. 15. Concern that the existing dwelling contains asbestos which will be released during demolition. 16. The fact that existing building detracts from the HCA does not justify replacing that building with a development that detracts from the significance of the HCA to an even greater degree. 17. The excessive FSR and Height demonstrate that the proposal is an over development of the site. 18. Potential impacts from dust during construction. 19. Impact on adjoining residents from construction noise, especially those working from home. 20. Additional traffic and increased demand from on street parking from the development. 21. The Council should not uphold the requested variations to height and FSR as the written requests are not well founded. 22. The development will result in a drop in property values in the area and will create an undesirable precedent.
During the hearing, provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. A collation of their written notes was tendered by the Respondent as Exhibit 11. These objections emphasised many of the concerns summarised in the proceeding. In their oral submissions the residents emphasised the following objections: 1. The amendments made to the application fail to address the heritage of the area. 2. That 3 Bruce Street is a 100 year old heritage property that is subject to risk from the proposed excavation. 3. The amended plans have not addressed concerns about the potential for loss of views and sunlight for adjoining properties. 4. The provision of 11 parking spaces for 11 units is insufficient and will result in overflow parking putting pressure on street parking. 5. Concern that existing use rights have not been proven by the Applicant. 6. The proposed design of the building fails to respect the history of the area. The HCA contains over 100 heritage homes and has a long history. 7. That the reliance of the development on 7-7A Bruce Street as the benchmark for development is inappropriate, particularly in a HCA. 8. The views and outlook from units in 7-7A Bruce Street impacted by the development are highly valued. These impacts are exacerbated by the variations proposed to Height and FSR.
In determining the development application, I have read and considered the submissions received by the public: s 4.15(1)(d) of the EPA Act.

[6]

Planning Controls

The subject site is zoned R2 Low Density Residential pursuant to LEP 2013. The objectives of the zone, which are required to be a consideration pursuant to cl 2.3, are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Prior to considering the contentions raised by the Respondent in support of the refusal of the development application, or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16].
In these proceedings the agreed submission of the parties was that the preconditions contained at cll 4.3(2) and 4.4(2) of LEP 2013, namely that a building on land is not to exceed the mapped height and FSR development standards, apply as preconditions irrespective of the determination of whether the site benefits from existing use rights. I accept the agreed submission of the parties: Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [64]-[65] and Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332
As the Applicant seeks a variation to the maximum height standard and the maximum FSR standard applicable to the site under LEP 2013, I commence the judgment with a consideration of the Applicant's requested variation against the states of satisfaction contained in cl 4.6 of LEP 2013 at subcll (3) and (4).
Clause 4.6 of the LEP 2013 allows consent to be granted notwithstanding the breaches of the height and FSR development standards, subject to the provision of a written request pursuant to cl 4.6(3) and the consent authority's satisfaction of the matters in cl 4.6(4). Two written requests, one in respect of each breach, have been provided in support of the development application. The terms of cl 4.6, and my consideration of the matters in cl 4.6(4), are set out in detail below.

[7]

Should the maximum height standard be varied?

Clause 4.3 of LEP 2013 prescribes a maximum height limit of 8.5m for the subject site. The development application seeks consent for a maximum building height of 10.59m. (Exhibit B). Clause 4.3 states: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. (2B) Subclause (2A) does not apply to development on land identified as "Area 3" on the Key Sites Map if the consent authority is satisfied that the development achieves the objectives of this clause.
The subject site is not on land zoned B4 Mixed Use or identified on the 'Key Sites Map'. As such subcll (2A) and (2B) cl 4.3 of LEP 2013 do not apply.
Given the requested variation, development consent cannot be granted except in accordance with cl 4.6(2) of the LEP 2013. Clause 4.6 provides, at (3) and (4): 4.6 Exceptions to development standards … (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. …
It is clear from a reading of cl 4.6 of LEP 2013 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility, in this case to the height standard, by demonstrating that the breach of the development standard is justified.
In Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7, Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have power to grant consent to developments that contravene the building height standard (cl 4.6(2)). However, the consent authority cannot grant such a development consent unless they: 1. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 2. have considered 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. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 4. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
I have applied these tests to the current application in the following.

[9]

Is compliance with the development standard unreasonable or unnecessary?

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).
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
The written request argues that compliance with the maximum height standard is unreasonable or unnecessary for the following reasons: 1. Strict compliance with the height development standard is unreasonable and unnecessary as the proposal complies with the objectives of the height standard. (Wehbe test 1); 2. Other factors that demonstrate that compliance with the height standard is unreasonable or unnecessary: 1. That the proposed variation will not generate any adverse or unreasonable streetscape impacts and the proposed design (incorporating the variation) provides an appropriate transition between the four level residential flat building adjacent and the existing single storey heritage item at 3 Bruce Street. 2. The proposed height variation will not generate any adverse or unreasonable visual bulk impacts when viewed from adjoining properties. 3. The proposed height variation is firstly compatible with the adjoining heritage item and secondly with the form of development anticipated by the zoning and the HCA. 4. The height variation does not cause any adverse impacts from overshadowing or overlooking. Further, the additional height is not considered to generate any unreasonable impacts on views from adjoining properties. 5. That the proposed maximum building height is not materially different from the height of the existing building on the site. (Exhibit B)
Examining the first basis put by the written request, the objectives of the height standard at cl 4.3 of LEP 2013 are: (1) The objectives of this clause are as follows - (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas.
The written request argues the objectives of the height standard are met in the following broad ways:

[17]

Lack of adverse impact:

The request argues that the height variation does not cause any additional adverse impacts, including overshadowing, overlooking or unreasonable impacts on views from adjoining properties. The written request summarises the analysis as follows:
That the units at 7A Bruce Street will maintain five hours of solar access, with upper level apartments maintaining six hours sunlight access.
That the height variation is located in the upper portion of the roof form which is occupied by dormer windows to bedrooms which will not generate unreasonable privacy impacts for adjoining properties.
The additional height is not considered to generate unreasonable view impacts for units in 7A Bruce Street beyond the impacts generated by a development of a compliant height. The upper level units will look over the proposed development. The request states that no iconic views are impacted, and the affected views are best categorised as district views or views of canopy tree planting in proximate properties.
That the proposed height of the front pitched roof is RL 37.89, which is 930mm above the existing roof (RL 36.93). The request concludes that despite the fact that the proposed development will have a more substantial building form than the existing building the additional height, bulk and scale will not be responsible for any adverse or unreasonable streetscape, heritage, visual bulk or amenity impacts. (Exhibit B)

In the alternative it is Ms Gordon's evidence that the objectives of the height standard are not met notwithstanding the variation to the control. She argues that:

The excessive height of the rear parapet, stairwell and lift overrun, all of which are readily perceived in the street, detract from the character of the streetscape and the significance of the HCA.
The development does not meet the objective 'to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings'. Ms Gordon argues: "… Whilst the applicant claims the building provides a transition in height and scale between the heritage item and the derogatory building at 7A Bruce Street. The objective [of the height standard] does not seek this. Rather, the objective seeks that the building proposed for the site is an appropriate transition from the heritage item not to the building at 7A Bruce Street. In the context of an HCA characterised by 1 and 2 storey buildings of low-density form and scale, the provision of a three storey residential flat building adjoining a single level heritage item and placing garbage storage, stairs and pathways immediately adjacent to the item rather than landscaping, cannot be seen as providing a transition in built form and land use intensity between the heritage item and the building on the site. …" (Exhibit 4) "… This is not a situation where it is appropriate to provide a transition from a higher density zoned property to a lower density zoned property where such a transition has a planning purpose. Providing a 'transitional' modern built form in these circumstances in a low density residential conservation area simply results in the new built form having a significantly inferior bulk and scale relationship to the adjoining heritage item and conservation area than the current development that exists on the site. It is clear that this is not an appropriate planning or heritage response to the site as it is a basic principle in a conservation area that you do not replace a building (particularly one of the oldest dwellings in the conservation area) with one that reduces the contribution the site makes to the conservation area." (Exhibit 10)
The development fails to achieve the objective 'to maintain satisfactory solar access to existing buildings' because the breach of the control results in unsatisfactory loss of solar access to units in 7A Bruce Street.

Ms Gordon disagrees with the assertion in the written request that the height breach does not result in unacceptable visual bulk. It is her opinion that when viewed from 3 Bruce Street the proposed development will impact views and outlook from the kitchen and dining room windows of the heritage item(Exhibit 10). Further, she argues that the substantial built form proposed will "overwhelm the single storey heritage item adjoining, significantly reducing the amenity of the dining room, kitchen and rear yard along with the setting of the heritage item" (Exhibit 10).
Ms Gordon concludes that when viewed from Bruce Street, the rear yard of 3 Bruce Street and the rear yards of the properties in Federal Street which adjoin the site, the development that results from the breach of the height and FSR controls is inappropriate in an R2 Low Density Residential environment(Exhibit 10).
In relation to the remaining factors of view sharing, visual bulk and solar access, as they relate to 7A Bruce Street, Ms Gordon argues:

The length of the proposed building is not characteristic and is foreign to a low-density residential environment. The breach of height, and this uncharacteristic building length, result in view/outlook impacts to the private balconies of units in 7A Bruce Street.
That a compliant building would result in a reduced impact on both views and overshadowing. Ms Gordon notes for example that the proposed roof ridge, which is wholly in breach of the height control, results in additional shadow impact on the lowest level of apartments in 7A Bruce Street at 3pm in midwinter.

Ms Gordon does not accept the argument advanced in the written request that the breach of the height control is not responsible for any adverse streetscape impacts. In contrast she argues that the dormer windows, and the height of the ridge, add to the visual bulk of the development when viewed from Bruce Street (and the HCA).
Finally, Ms Gordon does not accept the argument advanced that the non-compliance in part arises from a desire for the roof pitch to be compatible with the predominant roof pitch in the HCA. She argues: "32. I do not agree with the argument in the height Clause 4.6 (at page 11) that the proposed two storey with pitched roof form is appropriate in the conservation area and the breach of the control should be supported as a lower pitched roof would be detrimental to the conservation area. In my opinion, this argument starts with the false premise that the only way to comply with the height control is to lower the pitch of the roof. An 8.5m height control is sufficient to provide a two storey built form with pitched roof of appropriate slope. What increases the height over the control in this design is the fact that the roof form does not pitch from the ceiling level of the first floor, but rather from a more elevated position, with the walls of the building extending beyond the first floor level. This is proposed to allow additional accommodation Level 2, not to provide a built form which is more compatible with the character of the conservation area." (Exhibit 10)
Nor is Ms Gordon satisfied that the fact of the height of the existing building is a relevant benchmark, she notes that the proposed building is over 900mm higher when the highest point of the existing roof is compared with the proposed roof. (Exhibit 10)
Ms Gordon argues that the grounds advanced in the written request seeking to vary the height standard does not establish that compliance with the height standard is either unreasonable or unnecessary in the circumstances of the proposed development. Therefore, she concludes that the Court should not be satisfied that the test at cl 4.6(3)(a) of LEP 2013 is met.

[18]

Are there sufficient environmental planning grounds to justify the variation?

In Initial Action at [24] Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environmental planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the height development standard. These grounds can be summarised as follows: 1. That the proposed development achieves a better transition between the existing heritage building and the adjoining residential flat building. The reasoning advanced for this ground is in similar terms to that summarised at [37] [38] and [40]. 2. That the proposal enjoys the benefit of existing use rights. The request argues: "… it is reiterated that the proposal enjoys the benefit of existing use rights. Therefore, the replacement of a non-conforming residential flat building with another residential flat building is permitted via these provisions. It is noted that the existing building height, including the pitched roof and chimneys, already breach the height standard. The variation to the height standard is not considered to generate any inconsistency with the planning principle for existing use rights being Fodor Investments v Hornsby SC [2005]. This is on the basis that the 2-storey plus pitched roof form is compatible with the surrounds and that the height variation is not responsible for any adverse or unreasonable amenity impacts and provides for a suitable level of internal amenity." (Exhibit B) 1. That the variation does not generate any adverse or unreasonable impacts. The request argues that the components of the proposed building which breach the height limit do not generate any adverse impact. Further, the request argues that the absence of impact has previously been upheld by the Court as a sufficient environmental planning ground, citing: Landa-Wrublewski v Waverley Council [2019] NSWLEC 1546 at [7]; Melocco v Hunters Hill Council [2019] NSWLEC 1510 at [13]. 2. The variation is consistent with the promotion of the orderly and economic development of land. The request argues that the elements of the building which exceed the height limit allow for the provision of bedroom accommodation increasing the residential accommodation achieved by the development. Given the location of the site close to public transport and retail, the request argues that the height variation provides additional well located accommodation which is consistent with the objects of the EPA Act. 3. The site has specific circumstances and contextual characteristics that justify the variation. The request summarises this ground as follows: "- lack of perception of the height variation from the heritage-listed property to the north due to lack of clear glazed primary windows facing the proposed built form, garage structures in the rear yard which obstructs perception of the built form and dense vegetation on that site and as proposed within the northern setback which will further dimmish the perception of the proposed height variation. - Indiscernible nature of the height variation when observed from both sides of Bruce Street due to the recessed nature of the pitched roof form responsible for the variation. - Compatibility with the scale of the surrounding buildings noting the site lies immediately alongside 2 x 4-level residential flat buildings. - Retention of solar access substantially beyond that contemplated by the ADG and DCP. - Lack of view and privacy impacts generated by the additional height beyond 8.5m. - Abundant separation distance to the western neighbours addressed to Federal Avenue, noting the dwellings on these properties are setback 34-44m from the proposed 2-storey with pitched roof/former built form. The rear of these properties also contains established dense tree canopy planting whilst additional planting will further form a vegetative buffer between the proposed built form (including the component over the height) and these properties, thereby avoiding any visual bulk or privacy impacts to the rear yards. - The visual impacts to the adjoining 4-level non conforming residential flat building at 7A Bruce Street are not significant, noting the side-facing units already view the existing 2-storey plus pitched roof form whilst the provision of a contemporary residential flat building with landscaping along a sizeable portion of the southern side setback, is considered to represent an improved visual outcome. The additional height above the 8.5m height limit, which consists of the upper level of pitched roof form as viewed from the south, is thereby not considered to generate any adverse or unreasonable visual bulk or amenity impacts to the side-facing units on that property." (Exhibit B)

[20]

The written request does not demonstrate that compliance is unreasonable or unnecessary

For the following reasons, I am not satisfied that the written request concerning the height development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2013. The request has not demonstrated that compliance with the height development standard is unreasonable or unnecessary on the basis of any of the reasons advanced.
Following a consideration of the written request and the evidence of the experts I find that the proposed development fails to meet objective (c) of the height standard. I am not satisfied that the proposed development demonstrates that it provides a transition in built form between itself and the heritage item (3 Bruce Street) as sought by the objective. In order the establish the objective is met, in a manner alternative to complying with the 8.5m height limit, the written request must advance either a design, circumstance or other means by which the development achieves a transition to 3 Bruce Street. I am not satisfied it does so. My reasoning follows.
Firstly, I accept and adopt the evidence of Ms Gordon at [39] that the written request erroneously focusses on the transition between the existing residential flat building at 7 and 7A Bruce Street, the subject site and 3 Bruce Street. This is not the focus of objective (c) which is directed to a transition in built form between heritage items and other buildings. Secondly, I accept her evidence and conclusion that in the context of a HCA characterised by one and two-storey buildings, the transition between the heritage item and the proposed building detailed in the architectural design is inappropriate. Despite the assertion in the heritage impact statement (HIS) that the side setback proposed between the development and the heritage item is not 3m but rather 2m in the location of the angled bedroom windows and significantly less adjacent the proposed fire stairs, access ramp and garbage enclosure. Part of the setback area also contains the basement carpark structure. Further, despite the reliance in both the written request and HIS, there is very little deep soil screening trees nominated in the landscape (Exhibit M, Exhibit 12) or architectural plans (Exhibit A) which would meaningfully moderate the scale of the proposed built form.
Secondly, the written request argues that the objective is met through the inclusion of a pitched roof and dormer windows in the architectural design. Following a review of the photomontages, extracted at [38],I accept and prefer the evidence of Ms Gordon at [43] - [44] that these elements and the way they are utilised in the architectural design of the development add to its visual bulk. Further, I accept her evidence that the use of a pitched roof may be appropriate in the HCA, but that the choice of the pitching point height in this development results in the development being incompatible. I find that the use of a pitched roof and dormers on the proposed building form is an insufficient architectural 'tool' to achieve the objective to provide a transition in the built form between the proposed building and the adjoining heritage item.
For the preceding reasons I find that the written request does not demonstrate that objective (c) of the height standard is met notwithstanding the variation. Therefore, the first basis advanced at [35] fails.
The written request nominates a number of other factors that it argues individually or collectively demonstrate that compliance with the height standard is unreasonable or unnecessary. For the following reasons I find this basis is not made out: 1. I am not persuaded that the proposed variation provides an appropriate streetscape transition between 7, 7A and 3 Burke Street. In my view it is incongruous in a HCA, where the stated intent of the future character of the locality is to maintain its low scale heritage character, to take architectural and streetscape cues from an adjoining non-conforming detracting built form: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [23]. This is not to say that redevelopment of the site is constrained to a replication of the low density forms of the HCA, but I am satisfied that the asserted 'transition' in this development is not a basis for establishing it is unreasonable or unnecessary to comply with the development standard. 2. I prefer and adopt the evidence of Ms Gordon at [40] that the ground of appropriate visual bulk is not made out. I am not persuaded by Mr Betros' argument that the height variation does not generate any adverse visual impact. In my view, as detailed at [51] the proposed setback to 3 Bruce Street is inadequate and is materially less than that described as acceptable in the HIA. Further, the dominant nature of the bulk of the proposed built form in the streetscape is, in my view, self-evident in the photomontages and street elevations relied on in the written request. I accept the evidence of Ms Gordon that the visual bulk of the building is exacerbated by its uncharacteristic length. 3. For the same reasoning as (2) above I do not accept the compatibility ground advanced by the written request, namely that the development is compatible with the adjoining heritage item and the form of development expected in the HCA, as establishing that compliance with the development standard is unreasonable or unnecessary. 4. I am not persuaded that the assertion in the written request that the height variation does not cause any adverse impacts or that this is a ground that establishes that compliance is unreasonable or unnecessary is made out on the evidence. I disagree with Mr Bertros' conclusion that the reduction in solar impact is not an adverse impact when compared to the level of solar access currently experienced by the adjoining apartments. In my view it is clear from the solar analysis prepared by the Applicant that the component of the proposed development which exceeds the height limit is responsible for the shadow impact. Whilst this impact, in a merit assessment, might be considered acceptable I am not persuaded that it supports a conclusion that the absence of impact is a reason sufficient to establish that compliance with the height development standard is unreasonable or unnecessary. 5. For the same reasoning as (4) I am not persuaded by the argument in the written request that the fact that the proposed building has no further adverse impact than the existing building establishes that compliance with the standard is unreasonable or unnecessary. On the evidence, there are further adverse impacts that arise from the proposed development both visual bulk, streetscape and overshadowing. I am not persuaded that this is a reason sufficient to establish that compliance with the height development standard is unreasonable or unnecessary.
Given these findings the written request has therefore failed to demonstrate that compliance with the height standard is unreasonable or unnecessary for the reasons advanced. I find that I am not satisfied that the written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. As such, the satisfaction required by cl 4.6(4)(a)(i) of LEP 2013 has not been met and there is no power to grant consent to the proposed development. This alone is a sufficient basis upon which the development application must be refused.

[21]

The environmental planning grounds are not sufficient

I find that the written request does not demonstrate that there are sufficient environmental planning grounds to justify the variation. In addition to the preceding findings I am not satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the height standard. Whilst each of the grounds advanced in the written request, summarised at [48], broadly constitute environmental planning grounds, I am not satisfied that they justify the breach of the standard.
In my view the first environmental planning ground fails to justify the breach as I have found that the proposed development does not achieve an appropriate transition or presentation in the streetscape of Bruce Street for the reasons detailed at [50]-[52]. The same can be said for the final environmental planning ground advanced of site circumstance and context, given my findings at [54].
Further, in discussing environmental planning grounds two and three, the written request fails to focus on the element of the proposed development which breaches the standard and how that aspect of the development is linked to the stated justification for the contravention.
Finally, the written request argues that a benefit that arises from the additional height is the provision of additional, well located, accommodation. This is clearly the case; the additional height provides additional development yield from the site. However, in my view there is nothing in the written request that outlines the reasoning as to why this ground is either qualitatively or quantitatively sufficient to justify the breach.
For these reasons, I cannot be satisfied that the request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the height development standard. Accordingly, I also do not reach the state of satisfaction required by cl 4.6(4)(a)(i) of LEP 2013 and there is no power to grant consent to the proposed development. This alone is a sufficient basis upon which the development application must be refused.

[28]

Lack of adverse impact

The height variation does not cause any adverse impact on solar access to adjoining properties or the public domain, or any adverse impact on the privacy of adjoining properties or the achievement of view sharing. In relation to view impacts the written request argues that: "The additional FSR is not considered to generate any unreasonable view impacts as the additional FSR is contained within a form not inconsistent with that anticipated by the suite of controls. A dwelling with a 6-metre wall height and pitched roof of 8.5m in height, along with a dwelling of 460sqm and a site coverage of 50%, along with 900mm setback from the southern boundary, could have similar, if not greater view impacts. The 'affected' units are considered to be vulnerable as they are side facing units and would anticipate a form of development consisting of 2-storeys with a pitched roof form. Any impact would not be considered to be unreasonable as any reasonable form of development would affect the lower and middle apartments within 7A Bruce Street." (Exhibit C)

Examining the first basis put by the written request, the objectives of the FSR standard at cl 4.4 of LEP 2013 are: (1) The objectives of this clause are as follows - (a) to establish standards for development density and intensity of land use, (b) to provide consistency in the bulk and scale of new development with existing development, (c) to minimise adverse environmental impacts on heritage conservation areas and heritage items, (d) to protect the use or enjoyment of adjoining properties and the public domain, (e) to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation.
The written request argues the objectives of the standard are met in the following broad ways:

Objective (a): to establish standards for development and intensity of land use The written request argues that this objective is of a strategic planning nature. However, the written request goes on to argue that the FSR intensity of the proposed development will not generate any impacts on the matters listed below beyond those of a compliant development. The written request undertakes an analysis of GFA and estimates a compliant development to be in the order of a 7 unit development (4 x 1 bedroom units and 3 x 2-bedroom units). The written request uses this 'compliant development' as a comparator with the proposed development and undertakes an analysis against the following factors:

[30]

Visual and Acoustic impacts The development comprises 5 of one bedroom and 5 of two bedroom units of modest size. The orientation of proposed balconies to the front and rear of the building will avoid any visual privacy or acoustic impacts on adjoining properties.

Objective (b): to provide consistency in the bulk and scale of new development with existing development. The written request argues that '(e)njoyment of existing use rights is considered to require a different test to that of consistency, but rather compatibility.' Nevertheless, the written request argues that the proposed FSR variation 'is not considered to generate any inconsistency with existing development noting that existing development adjoining the site varies from single storey dwellings to 4-level residential flat buildings.' (Exhibit C) Utilising the comparison of a two storey residential dwelling the written request argues the proposed development offers advantages: "A 2- storey dwelling with a 6m wall height, pitched roof and GFA of 460.9sqm would represent a substantial built form. Such built form would be associated with a similar front setback but with side setbacks that would be permitted to be closer than that proposed (generally 3-metres), noting the DCP allows for side setbacks of 900mm. It is noted that there is no numeric rear setback requirement in the DCP. The proposed side and rear setbacks allow for the provision of effective deep soil planting that will soften the appearance of the built form to a greater extent than if a dwelling house were to be built within 900mm of side boundaries. The proposal also includes a site coverage of approximately 44%, which is less than the permitted for a dwelling on a lot size over 600 sqm (50%)." (Exhibit C)
Objective (c): to minimise adverse environmental impacts on HCA and heritage items. The written request argues that this objective is met in three broad ways: firstly, through a two-storey street presentation and provision of deep soil planting within the front setback; secondly, through the provision of a three metre northern setback also with deep soil planting, and thirdly through the absence of adverse impacts of the proposed development when compared to a permissible dwelling form. Further, the written request adopts the following extracts of the conclusion and recommendations of the HIA in concluding that the proposed development achieves objective (c): "A significance assessment of the subject site has been undertaken in Section 4 of this report and concludes that the subject does not meet the criteria for individual heritage listing, nor does it contribute to the significance of the Federal Fyle HCA A detailed impact assessment of the proposed works has been undertaken in Section 5 of this report. The proposed development has been assessed to have a negligible impact of the Federal Fyle HCA and the vicinity heritage items. Key aspects of the proposal assessment are listed below - Appropriate setbacks which respect that of the Federal Fyle HCA and vicinity heritage items have been incorporated. Setbacks of a minimum of 3 metres have been included at the north of the proposed new flat building to create an appropriate buffer between the heritage item at 3 Bruce St and the proposed new flat buildings. The development has also been setback 5 metres from the front (east) consistent with setbacks with the Federal Fyle HCA, while also ensuring views to and from the heritage item at 3 Bruce Street are maintained. The proposed development will also respect the vicinity heritage items located on Wallace Street and Federal Avenue and will at most only be minorly visible in the background of these items - The proposed materials, finishes and colours have been selected to avoid strong contrast with the heritage item and wider Federal Fyle HCA. The proposed materials include a mix of face brickwork, rendered paint finishes, metal cladding and glazing. At the primary elevation, face brickwork in red and grey tones are proposed which provides both a link to the colour of red brickwork utilised within the Federal Fyle HCA, while also introducing a contemporary grey tone. While not traditional the proposed colouring of the grey brick will not create a strong contract with the adjacent heritage item. The proposed metal cladding to the Level 3 facade is proposed in a dark grey to aid in this level receding into the background, thereby reducing its prominence. The ground floor elevations are proposed to be finished in a render and painted in a light grey. While a contemporary colour palette is proposed the tones chosen are neutral and utilise face brickwork and render that is in keeping with the materiality of the HCA - New landscaping is proposed across the site to ensure that landscaped character of the Federal Fyle HCA is maintained. The proposed landscaping includes areas of grassed area, shrubs and trees particularly at the north-eastern corner of the subject site and within the front (east) setback to further soften the overall form of the proposed new flat building - The proposed development will not affect the understanding of the historic subdivision pattern of the area - The proposed overall height bulk and scale of the proposed development could have had the potential to have a detrimental impact on the Federal Fyle HCA and vicinity heritage items. However, these potential impacts have been minimised through various means to aid in the reduction of the overall height and scale of the proposed development the overall form of the buildings has been broken up through the use of various materials, setbacks to the top floor, and articulation of the overall form. Further coupled with the proposed landscaping particularly to be located along the east, north and western boundaries, the impact of this larger scale development is reduced overall. Furthermore, the proposed development will act as a transitional elements between the four storey late twentieth century apartment buildings to the south and the heritage item located to the north of the subject site. For the reasons stated above, the proposed works are recommended for approval from a heritage perspective having regard to the proposed recommendations below." (Exhibit E)
Objective (d): to protect the use or enjoyment of adjoining properties and the public domain. The written request argues that this objective is met, notwithstanding the non-compliance, on similar terms to the preceding. Namely that, the additional built form does not generate any impacts (overshadowing, solar access, privacy or view loss), the development is consistent with the scale anticipated in the planning controls and the provision of increased setback and deep soil areas provide a more desirable outlook.
Objective (e) to maintain an appropriate visual relationship between new development and existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation. The written request acknowledges that given the low density residential zoning of the site and its location within a HCA it is unlikely the locality will undergo 'substantial transformation'. The written request argues that this objective is met, notwithstanding the non-compliance, on similar terms to the preceding. Namely that, firstly the built form proposed is compatible with surrounding development, secondly the proposal is modest and provides a transition between the adjoining single storey residential dwelling and the adjoining residential flat development and finally that the landscaped setbacks assist in maintaining 'an appropriate visual relationship between the new development proposed and the existing character of areas surrounding the site.' (Exhibit C)

Examining the second basis put, namely that the other factors listed in the written request demonstrate that compliance with the development standard is unreasonable and unnecessary, the argument written request is framed in a similar manner to that summarised at [38]. I adopt that summary here. The written request concludes that:

the proposed development will not generate any unreasonable streetscape impacts and provides an appropriate transition in the streetscape.
The proposed development will not generate any unreasonable visual bulk when viewed from adjoining properties.
the proposed development is compatible with the adjoining heritage item at 3 Bruce Street and the HCA. The request replicates the grounds summarised at [38]. The request concludes that: "The proposed angle of the pitched roof is considered to achieve a better visual outcome in the conservation area that if a lower pitch was proposed. Such lower pitch would remove the potential for FSR within the roof form and reduce the extent of variation. However, it would be detrimental to the presentation of the residential flat building in the conservation area. Removal of this GFA is thereby unnecessary."
that the FSR variation does not cause any adverse impacts, including overshadowing, overlooking or unreasonable impacts on views from adjoining properties. (Exhibit C)

In the alternative it was Ms Gordon's evidence that the objectives of the FSR standard are not met notwithstanding the variation to the control. Given the replication of the environmental planning grounds advanced in the written request to vary the FSR standard with those advanced in support of the height variation, the evidence of Ms Gordon summarised at [39- 44] is relevant. I adopt that summary here. She further argues that:

The amended plans equate to an FSR of 0.84:1, which Ms Gordon notes is greater that the density permitted in the nearby R3 Medium Density Residential zone.
That the proposed exceedance of the FSR control represents the area of more than a whole floor of the development.
When assessed against the objectives of the FSR control, in particular objective (a) and (e), the written request fails to establish how these objectives are met despite the significant variation to the control.

Ms Gordon concludes that the grounds advanced in the written request seeking to vary the FSR standard do not establish that compliance with the FSR standard is either unreasonable or unnecessary in the circumstances of the proposed development. Therefore, she concludes that the Court should not be satisfied that the test at cl 4.6(3)(a) of LEP 2013 is met.

[32]

The written request does not demonstrate that compliance is unreasonable or unnecessary

Following consideration of the written request and the evidence of the experts I find that the proposed development fails to meet objective (e) of the FSR standard. Namely, to maintain an appropriate visual relationship between new development and the existing character of areas not likely to undergo significant transformation.
The site is located within a nominated HCA pursuant to LEP 2013 which is noted as being of aesthetic significance. I accept the conclusion of the written request that the status of the site as being within a HCA and the zoning of the site is R2 Low Density Residential mean it is unlikely the locality will undergo significant transformation.
The grounds advanced in the written request to demonstrate objective (e) of the standard is met focus on firstly the compatibility of the proposed development with the streetscape, secondly the capacity of the proposed development to provide a 'transition' between the existing built form of 7, 7A and 3 Bruce Street, and thirdly the provision of landscape setbacks to maintain an appropriate visual relationship between the proposed development and the adjoining heritage item. These grounds replicate those advanced in the written request seeking to vary the height standard. For the reasons detailed above, I am similarly not satisfied that these grounds demonstrate the objective is met despite the non compliance. Therefore, I find that the written request fails to adequately establish that it is unreasonable and unnecessary for the development to comply with the FSR standard.
The second basis advanced in the written request to establish compliance with the height standard is unreasonable or unnecessary is the site specific or other factors listed at [63]. These factors replicate those advanced in the written request to vary the height standard. My earlier findings as to the insufficiency of these factors to establish compliance with the standard is unreasonable or unnecessary are adopted here without replicating them.
Given these findings the written request seeking to vary the FSR standard has therefore failed to demonstrate that compliance with the standard is unreasonable or unnecessary through the reasons advanced. I find that I am not satisfied that the written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. As such, the satisfaction required by cl 4.6(4)(a)(i) of LEP 2013 has not been met and there is no power to grant development consent to the proposed development. This is also a sufficient basis upon which the development application must be refused.

C-Corp Nominees Pty Ltd v Inner West Council

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Judgment (35 paragraphs)

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Cases Cited (14)