Carlingford Investments Pty Ltd v The Hills Shire Council

The site

1. The site is Lot 1 in DP 120826. It is irregular in shape and consists of one residential allotment with a total site area of 925.7 sq m. The site contains a single storey brick dwelling and garage.
2. The site generally slopes from the south down to the north to James Street with an average gradient of 6.7% across the site. The James Street frontage is relatively flat.
3. The immediate surrounding properties in Jenkins Road, James Street and Thallon Street have separate approvals in place for similar mixed use development. The site adjoins the Carlingford railway station.

Relevant planning controls

1. The site is zoned R1 General Residential under the provisions of The Hills Local Environmental Plan 2012 (LEP 2012). A mixed use development is permissible with consent in the R1 zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
2. The R1 zone objectives are;

• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable other land uses that support the adjoining or nearby commercial centres and protect the amenity of the adjoining or nearby residential areas.

1. Clause 4.3(2) provides that 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". The proposed development has a height of 55.6 m and the maximum height shown on the Height of Buildings Map is 57 m.
2. Clause 4.4(2) provides that the "maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map". The proposed development has an FSR of 5.69:1 and the maximum FSR shown on the Floor Space Ratio Map is 5:1.The development application was accompanied by a written request which seeks to justify the variation of the FSR development standard using cl 4.6 of LEP2012.
3. The Hills Development Control Plan (the DCP) applies. The site is located with Part D Section 12 Carlingford Precinct (D12). Part B Section 5 addresses residential flat buildings.
4. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)).

FSR - the statutory framework

1. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states::

4.6 Exceptions to development standards 1. The objectives of this clause are as follows: 1. to provide an appropriate degree of flexibility in applying certain development standards to particular development, 2. to achieve better outcomes for and from development by allowing flexibility in particular circumstances. 1. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. 2. 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: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the development standard. 1. Development consent must not be granted for development that contravenes a development standard unless: 1. the consent authority is satisfied that: 1. the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and 2. 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

The cl 4.6 written request

1. The cl 4.6 written request was prepared by Mr Warwick Gosling, the applicant's town planner. It was agreed that the FSR for the proposed development is 5.69:1 compared to the FSR in cl 4.4 of 5:1.
2. The cl 4.6 written request identifies the objectives of the zone and concludes that the variation can be supported for the following reasons:

• the proposed development is consistent with the objectives of the zone,
• the overall additional floor space results in a building form that defines the railway station as the entry point into the Precinct by establishing a taller built form directly adjacent to the station,
• the building bulk and scale responds to the local topography and is consistent with the Carlingford Precinct Master plan,
• the bulk and scale of the development is consistent with the emerging and planned future character of the area,
• the additional FSR (two storeys) will not have any additional adverse overshadowing impacts on nearby residences,
• there will not be any adverse visual or acoustic privacy or view impacts, the proposal is generally consistent with the future urban and built form envisaged for the site,
• the proposal is considered to demonstrate good urban design, is not excessive in terms of bulk and scale and provides a positive contribution to the streetscape, and
• the additional FSR does not increase the site coverage.

1. The proposed development is generally of a height and scale envisaged by the LEP 2012 and the DCP and will positively contribute to the urban renewal of the Carlingford Precinct. For these reasons, strict compliance with the FSR development standard is considered unreasonable and unnecessary in the circumstances.

The council's position

1. Mr Steven Layman, an architect and town planner, provided evidence for the council. He states that the development as approved at 16 storeys is not incompatible with the bulk, scale and character of existing and future surrounding development and is compatible with the role of the village centre. Because 18 storey developments have been approved on other larger consolidated sites in the locality; it does not follow that such a height should be achieved on an unconsolidated allotment of smaller comparable size. It is reasonable that there is a relationship between site area and building height and that this manifests itself in buildings of varied height. There is no necessary expectation that a height of 18 storeys, that was achieved on a significantly larger site elsewhere in the precinct, should give an entitlement for a smaller site to achieve that height.
2. Mr Layman disagrees that the DCP indicates that the FSR closer to the railway station "should be increased"; if that is to suggest that the development standard for FSR should necessarily be varied upward. The 0.5:1 FSR for the site is already the highest FSR in the precinct. The FSR map provides the appropriate FSR for the site. The DCP written controls do not mandate or even suggest that there should be any disregard for the FSR development standard. Achievement of maximum height is clearly contingent on adequate site area (i.e. consolidation). The site is an unconsolidated lot that does not have adequate area for 18 storeys.
3. Mr Layman rejects the approach of Mr Gosling as it rests heavily on two things. Firstly, the term "iconic bookend tower" (Figure 13, Part D Section 12, the DCP) and secondly the site being nearest to the railway station. He states that there is no compelling reason why the nearest site to the railway station should be occupied by the tallest development. Also, a bookend does not necessarily have to be taller than the books it contains. The vision for the site is therefore less about maximum height and more about appropriate visual termination of the development within the street block and extension into the Civic Plaza at the station entry. There is also no compelling reason why the nearest site to the railway station should be occupied by the tallest development.
4. For these reasons, Mr Layman concludes that Mr Gosling has not established that strict compliance with the FSR development standard is unreasonable and unnecessary in the circumstances.

FSR variation - the assessment framework

1. Clause 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 FSR standard (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)) and 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)).
2. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a 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 it is compatible.
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.

The zone objectives

1. The R1 zone objectives are:

• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable other land uses that support the adjoining or nearby commercial centres and protect the amenity of the adjoining or nearby residential areas.

1. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the FSR standard is appropriate. Notwithstanding this, I do not accept that it can be reasonably argued that the proposal is inconsistent with providing "the housing needs of the community" (dot point one) and providing "for a variety of housing types and densities" " (dot point two). The remaining zone objectives are not relevant to this application.
2. Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the relevant zone objectives.

The FSR objectives

1. The objectives of the FSR standard are: 1. (a) to ensure development is compatible with the bulk, scale and character of existing and future surrounding development, 2. (b) to provide for a built form that is compatible with the role of town and major centres.
2. In terms of objective (a), the question to be answered is whether the FSR of the proposal is "compatible with the bulk, scale and character of existing and future surrounding development". Mr Gosling and Mr Layman come to opposite conclusions but agree that the test of compatibility should be measured against "future surrounding development" rather than the existing detached residential dwelling character, given that the area is undergoing rapid change. Mr Gosling and Mr Layman agreed that Part D Section 12 of the DCP is the appropriate document to test compatibility. I agree.
3. The site is specifically addressed in D12 of the DCP. Section 1.2 states that the provisions of D12 apply if there is any inconsistency with other parts of the DCP, for the extent of that inconsistency. Section 2.2 identifies Key Sites for the Carlingford Precinct. The site is located in Block 4, 2 - 12 James Street. Section 3.3 provides Desired Future Character Statements with the Southern Precinct described at s 3.3.1. Section 3.7 provides for Structure Plan (Indicative Building Height and FSR). Section 4 provides Precinct Wide Built Form Controls with s 4.4.1 addressing FSR. Section 4.1.2 reiterates the maximum FSR in LEP 2012.
4. Section 5.2 provides specific controls for Block 4. The relevant parts of s 5.2 Design Principles are:

BUILDING HEIGHT

• Nos. 2-12 James Street, by virtue of their location close to the train station, have the ability to provide development of substantial height to contribute a landmark to denote the village centre.
• The development of Nos. 2-12 James Street should provide for orderly development by maximising opportunities for a shared basement layout and common open areas.
• Using the above urban design principles, Nos. 2-12 James Street may achieve two 18 storey towers. Placement of the towers minimises overshadowing of adjacent buildings and open spaces to the south (Figure 13).
• The six storey podium on Nos. 8-10 James Street provides development to the street frontage in a form and scale commensurate with the civic life of the village centre and to allow for ground floor active uses.
• Nos. 2-6 James Street will be developed to a maximum height of six storeys to maintain sufficient solar access to the existing low rise buildings to the south.

FSR LIMIT

• Due to its close proximity to the train station, the FSR limit for this key site is higher than sites further from the train station. This is to encourage developments of substantial size thus creating a critical mass for the village centre.
• To ensure an optimal mix of uses within buildings by specifying distribution of residential and commercial uses within the building.

1. Figure 13 - Conceptual Built Form Controls: Block 4 2-12 James Street identifies the site as "Iconic bookend tower on Civic Plaza". Figure 14 - Dimensional Built Form Controls: Block 4 2-12 James Street identifies the site as "Tower element" of 18 storeys.
2. In considering the different conclusions reached by Mr Gosling and Mr Layman, I can comfortably conclude that I agree with Mr Gosling for a number of reasons. First, I accept that the development "is compatible with the bulk, scale and character of … future surrounding development". The development satisfies the maximum height development standard in clause 4.3(2) of LEP 2012 and the number of storeys in Figure 14 of the DCP. The development clearly represents the bulk, scale and character anticipated by the DCP for the site as part of Block 4 in the Carlingford Precinct notwithstanding the additional floor area. The council raised no issue with setbacks or building footprint.
3. Second, the development provides "for a built form that is compatible with the role of town and major centres". The site is given added prominence in the DCP because of its proximity to the railway station and the need to establish a critical mass for the adjoining village centre. While Mr Layman questioned the approach of having additional FSR near the railway to create a critical mass for the village centre, it is nonetheless the approach adopted by the DCP. This approach is not without planning merit and certainly not so offensive that it should be disregarded or diluted, as suggested by Mr Layman.
4. There was some debate between the experts and advocates on the use of the words "as "iconic" and "bookend" in Figure 14. It was a debate that was largely unnecessary because the use of dictionary definitions, in this case, distorts the meaning of these words in establishing the form of development sought by the DCP. While dictionaries can be useful in determining the meaning of words, some caution must be exercised in their use (House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498). A reference to an "iconic" building would normally suggest a building such the Sydney Opera House or the Harbour Bridge rather than a residential building in Carlingford. Similarly, a "bookend" may not always suggest taller buildings at each end of a row of buildings but clearly suggests a different form of building at each end to distinguish these buildings from the other buildings in the row. The DCP, through Figure 14, clearly advocates taller buildings to create this differentiation in form along James Street. In my reading of the requirements for Block 4, the DCP essentially seeks two prominent well designed buildings at 18 storeys at either end of James Street to frame the lower buildings between. The proposed development clearly supports this anticipated built form along James Street. Even though the approved 16 storey building on the site would satisfy the form anticipated by the DCP, an 18 storey building similarly would satisfy the form anticipated by the DCP.
5. Third, I am satisfied that Mr Layman overstates the importance of the amalgamation provisions in s 4.4 of the DCP. The relevant parts are:

4.4.1. OBJECTIVES 1. This control is to encourage the amalgamation of sites thus promoting the efficient use of land; 2. To promote developments compatible with the desired Precinct character; and 3. To encourage orderly development in regular allotment patterns.

4.4.2. DEVELOPMENT CONTROLS 1. (a) The minimum site area of development sites shall be consistent with the site areas specified in the potential site amalgamation plan (Figure 8).

1. Figure 8 identifies the potential site amalgamation plan as the whole of Block 4.
2. Even though Mr Layman was questioned on his evidence that a height of 18 storeys was inappropriate given the small site area, and that a more appropriate design could be achieved through site amalgamation, it was not clear from his response how this could be achieved through amalgamation, except for a common basement carpark.
3. I do not accept that the lack of amalgamation of the site with other sites in James Street is a reason to refuse the application as:

• Block 4 already has two separate approvals at 2-8 James Street and 10 James Street making any amalgamation of the site with other lots highly unlikely, at best,
• the site has specific controls that define the height and number of storeys that are different to other properties in Block 4 (and which are satisfied), and
• I am satisfied that that the development of Block 4 satisfies the objectives in s 4.4.1,in that the three separate applications, still promote "the efficient use of land "(objective (i)), promote "developments compatible with the desired Precinct character" "(objective (ii)) and provide "orderly development" (objective (iii)).

1. Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the FSR objectives. Is compliance with the development standard is unreasonable or unnecessary?
2. I accept that the applicant has justified the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
3. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs, I accept that the applicant has established this to be the case. Are there sufficient environmental planning grounds to justify contravening the development standard?
4. For the reasons in pars 27 to 42, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the FSR development standard.

Unit size and mix

1. Section 3.11 Unit Layout and Design of the DCP has the following objectives: 1. To ensure that individual units are of a size suitable to meet the needs of residents. 2. To ensure the layout of units is efficient and units achieve a high level of residential amenity. 3. To provide a mix of residential flat types and sizes to accommodate a range of household types and to facilitate housing diversity. 4. Address housing affordability by optimising the provision of economic housing choices and providing a mix of housing types to cater for different budgets and housing needs. 5. To ensure designs utilise passive solar efficient layouts and maximise natural ventilation.
2. In relation to the proposed development, the following unit size requirements apply:

Residential Flat Development (30 or more units) (d) The minimum internal floor area for each unit, excluding common passageways, car parking spaces and balconies shall not be less than the following: Apartment Size Category Apartment Size Type 1 1 bedroom 50m2 2 bedroom 70m2 3 or more bedrooms 95m2 Type 2 1 bedroom 65m2 2 bedroom 90m2 3 or more bedrooms 120m2 Type 3 1 bedroom 75m2 2 bedroom 110m2 3 or more bedrooms 135m2

(e) Type 1 apartments shall not exceed 30% of the total number of 1, 2 and 3 bedroom apartments. (f) Type 2 apartments shall not exceed 30% of the total number of 1, 2 and 3 bedroom apartments. (g) All remaining apartments are to comply with the Type 3 apartment sizes.

1. There was a fundamental disagreement between Mr Gosling and Mr Layman on the question of unit size because of the reliance of Mr Gosling on the original approval. Mr Gosling states that the council raised no issue with the unit size and mix of the original approval as it was based on the requirements in SEPP 65 (which he says are reflected in the Type 1 unit sizes in the DCP). Mr Gosling states that it would be unreasonable to require strict compliance with the DCP as it did not exist at the time of the original approval. To enforce the newly adopted controls in the DCP would require a complete redesign of the building for unit size when the development application effectively only seeks an additional two levels (5 units) above that already approved.
2. The unit sizes proposed are as follows:

• Unit 45, 2 bedroom unit, 85 sq m.
• Unit 46, 3 bedroom unit, 110 sq m.
• Unit 47, 3 bedroom unit, 110 sq m.
• Unit 48, 3 bedroom unit, 165 sq m.
• Unit 49, 3 bedroom unit, 140 sq m.

1. Accordingly, Units 45, 46, 47 are classified as Type 1 units and Units 48 and 49 are Type 3 units. Mr Gosling states that all the proposed units are significantly larger than the minimum unit sizes required by SEPP 65 and pursuant to cl 30A(1)(b) of SEPP 65, the proposed areas for the units cannot be used as a reason to refuse the application.
2. Mr Layman takes the position that the development application should be fully considered under the DCP. Such a consideration results 88% of Type 1 units (maximum of 30% required) and 4% of Type 3 units (minimum of 40% required). The Type 2 units (30%) are compliant.
3. Even though Mr Layman is technically correct in that the development application should be considered under the planning controls that apply at the time of the assessment, I am satisfied that to ignore the previous approval would be unreasonable given that the current application effectively only seeks to add an additional 5 units to the 44 units that have been approved and where the unit sizes were considered acceptable.
4. I am not satisfied that Mr Goslings evidence that the application cannot be refused because of s 30A(1)(b) of SEPP 65 is correct. Section 30A(1)(b) relevantly provides that: 30A Standards that cannot be used as grounds to refuse development consent for residential flat buildings 1. A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds: 1. . 2. apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the Residential Flat Design Code.
5. The reference in s 30A(1)(b) to" the recommended internal area and external area for the relevant apartment type" must refer to the table at the top of p 69 in the RFDC as the table includes "internal area and external area for the relevant apartment type" rather than the unit areas in the Rules of Thumb at the bottom of this page relied on by Mr Gosling where there is no breakdown in external and internal areas.
6. There was some uncertainty on how the proposed units would fit the type of units identified in the table on p 69 however the internal areas in the p 69 table for a 1 bedroom unit range from 50 sq to 63.4 sq m, 2 bedroom units from 80 sq m to 121 sq m and 3 bedroom units have an internal area of 124 sq m. Units 45, 48 and 49 fall within the range for 2 bedroom units and the area for a 3 bedroom unit, respectively. Units 46 and 47 do not satisfy the 3 bedroom unit size in the table but satisfy the area in the Rules of Thumb for a 3 bedroom unit. I note that the Rules of Thumb address the question of housing affordability, as does objective (iv) in cl 3.11 in the DCP.
7. In balancing the different arguments on unit size, I am satisfied that the variations to the DCP are not sufficient to warrant the refusal of the application as no evidence was provided to suggest that despite the variations to the unit sizes, there is no conflict with the objectives in cl 3.3, in that:

• individual units are of a size suitable to meet the needs of residents (objective (i)),
• the layout of units is efficient and units achieve a high level of residential amenity (objective (ii)),
• there is a mix of residential flat types and sizes to accommodate a range of household types and to facilitate housing diversity (objective (iii)),
• addresses housing affordability by optimising the provision of economic housing choices and providing a mix of housing types to cater for different budgets and housing needs (objective (iv)), and
• the design utilises passive solar efficient layouts and maximises natural ventilation (objective (v)).

1. Similarly, I am satisfied that the variations to the RFDC are not sufficient to warrant the refusal of the application as no evidence was provided to suggest that, despite the variations to the unit sizes, there is no conflict with the objectives for Apartment Layout, in that:

• the spatial arrangements are functional and well organised,
• the layouts provide acceptable levels of residential amenity,
• the environmental performance is maximised, and
• household activities and the needs of future occupants can be accommodated.

Orders

1. The orders of the Court in Appeal No 10779 of 2014 are: 1. 1. The appeal is upheld. 2. DA 1091/2014/HB for the construction of an 18-storey mixed use development consisting of 49 residential apartment units and 25 m2 ground floor retail space at 12 James Street Carlingford is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 3, D and E.
2. The orders of the Court in Appeal No 10780 of 2014 are: 1. The appeal is upheld. 2. Application DA 561/2010/HB/B to modify DA 561/2010/HB (as amended) for a mixed use development application at 12 James Street Carlingford is approved subject to the modifications in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and E.

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: 17 February 2015