Ceerose Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2017-03-31

Judgment

COMMISSIONER: This appeal was lodged against the deemed refusal by the Inner West Council of development application DA/2016/242. The application sought approval for demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground-floor commercial/retail space, and basement car parking. The development is proposed at 305 - 313 Parramatta Road Leichhardt (the Site).
The matter commenced by way of a conciliation conference however after participation of the parties in the conference, resolution was not able to be achieved and the conciliation phase was terminated on 9 December 2016. A considerable number of objections were lodged to the development application, and at the commencement of the hearing the objectors were given the opportunity to express their concerns. Subsequently a view of the site, and adjoining properties was undertaken to observe the issues raised by residents.
Prior to the commencement of the hearing, it was agreed by the parties that contentions in relation to inadequate pedestrian access, and insufficient private open space for the ground floor units, were resolved by the amendments that have been made to the design and agreed conditions. These changes are incorporated in an updated set of architectural plans that the Court has allowed the applicant to rely on.
In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.
The issues for the Court to determine are: 1. Whether the development is compatible with the desired future character of the area in relation to its bulk, form, uses and scale (pursuant to cl 4.4(a)(c)); and 2. Whether the requested variation to floor space is acceptable, and appropriate in the context of the Heritage Conservation Area (pursuant to cl 4.6 and cl 5.10); and 3. Subject to the preconditions in 1 and 2 being met: 1. Whether the solar access for the future residents of the building is reasonable. 2. Whether the impacts on the property at 303 Parramatta Road Leichhardt that arise from the development are acceptable. 3. Whether the proposed vehicular access and manoeuvrability into the loading dock proposed by the development is satisfactory;

The site and its context

The subject site has an area of 1,312.5m² and is legally described as containing the following lots: Lot 2 in DP 303623; Lot B DP158093; Lot A DP158098. The site forms part of Leichhardt's commercial shops. The site has a 20.66m frontage to Parramatta Road.
The predominant built form in proximity to the site comprises two storey buildings featuring high parapets with commercial or retail uses at ground and first floor. The property backs onto Redmond Street, which contains predominantly residential development to the North. To the north-west of the property is the Hayes Street public car park (public car park).
The site is within the Parramatta Road Conservation Area (PCA) and is in close proximity to the Albert Palais Events building, as well as a series of single storey Victorian Terrace homes on the south end of Catherine Street, which are listed items.

Planning Controls:

Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Giles Tribe Architects on 28 March 2017.
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.
The subject site has frontage to a classified Road (Parramatta Road) and as such cl. 101 of State Environmental Planning Policy (Infrastructure) applies. Vehicular access to the site is provided via Clunes Lane. NSW Roads and Maritime Services provided concurrence to the development application on 1 August 2016. Acoustic Logic Pty Ltd has prepared an acoustic assessment for the applicant (Exhibit A), and the requirements of the NSW Roads and Maritime Services concurrence are included in the draft conditions of consent, meeting the requirements of this policy.
State Environmental Planning Policy 55 - Remediation of Land (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. 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. … A detailed site investigation report and remediation action plan has been prepared, satisfying cl. 7(3).
Leichhardt Local Environmental Plan 2013 (LEP 2013) applies to the site. Relevant to this appeal LEP 2013 has the following aims (cl 1.2(2)) relevant to the appeal: (a) to ensure that development applies the principles of ecologically sustainable development, (b) to minimise land use conflict and the negative impact of urban development on the natural, social, economic, physical and historical environment, (c) to identify, protect, conserve and enhance the environmental and cultural heritage of Leichhardt, (d) to promote a high standard of urban design in the public and private domains, (e) to protect and enhance the amenity, vitality and viability of Leichhardt for existing and future residents, and people who work in and visit Leichhardt, (f) to maintain and enhance Leichhardt's urban environment, (g) to ensure that land use zones are appropriately located to maximise access to sustainable transport, community services, employment and economic opportunities, public open space, recreation facilities and the waterfront, (h) to promote accessible and diverse housing types, including the provision and retention of: (i) housing for seniors or people with a disability, and (ii) affordable housing, (i) to provide for development that promotes Road safety for all users, walkable neighbourhoods and accessibility, reduces car dependency and increases the use of active transport through walking, cycling and the use of public transport, … (l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area, (m) to ensure that development provides high quality landscaped areas in residential developments, (n) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scientific and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, and of surface rock, remnant bushland, ridgelines and skylines, (o) to prevent undesirable incremental change, including demolition, that reduces the heritage significance of places, conservation areas and heritage items, …
Pursuant to LEP 2013 the site is zoned B2. The objectives of the B2 zone are as follows: To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. To encourage employment opportunities in accessible locations. To maximise public transport patronage and encourage walking and cycling. To ensure that development is appropriately designed to minimise amenity impacts. To allow appropriate residential uses to support the vitality of local centres. To ensure that uses support the viability of local centres. To provide a mixture of compatible land uses. To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres. To integrate suitable business, office, residential, retail and other development in accessible locations.
The proposal is defined as "commercial premises" and "residential flat building" both of which are permissible, with consent, in the zone.
The development is integrated development and requires approval from the NSW Roads and Maritime Service. Concurrence was provided, subject to conditions, on 1 August 2016.
Pursuant to cl 4.4 Floor Space ratio, the maximum floor space for buildings on the site is 1.1:1. The proposal has a maximum floor space of 2.499:1, exceeding the allowable under cl.4.4. There are no height controls applicable to the site under the LEP but DCP controls apply.
The objectives of cl 4.4 Floor Space are: (a) to ensure that residential accommodation: I. is compatible with the desired future character of the area in relation to building bulk, form and scale, and II. provides a suitable balance between landscaped areas and the built form, and III. minimises the impact of the bulk and scale of buildings (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale. The objectives relevant to the appeal are (a) and (b).
It is common ground between the parties that cl 4.4A applies to the site. The intent of the clause is to provide floor space incentives for mixed-use development where they incorporate active street frontages at ground floor level. This clause operates to increase the FSR applicable to the site to 1.5:1. For the incentive to apply the consent authority (at 3) must be satisfied that: 1. the building will have an active street frontage, and 2. the building comprises mixed use development, including residential accommodation, and 3. the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. The Council disputes the development's satisfaction of (c), and thus the eligibility of the proposal for the increased FSR.
LEP 2013, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. This clause applies to both cl 4.4 and cl 4.4A.
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.
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.
Given the site is mapped within the Parramatta Road heritage conservation area, and contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Leichhardt and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). The location of the site within the conservation area is shown by the red hatched area below: The impact of the development on the Heritage Conservation Area is in contention between the parties.
Clause 6.3 - Flood planning applies to the site. The objectives of the clause are as follows: to minimise the flood risk to life and property associated with the use of land, to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, to avoid significant adverse impacts on flood behaviour and the environment. For consent to be granted the consent authority (at 3) must be satisfied that the development is: is compatible with the flood hazard of the land, and will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and incorporates appropriate measures to manage risk to life from flood, and will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. Clause 6.4 - Stormwater management applies to the site. The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters. For consent to be granted the consent authority (at 3) must be satisfied that the development is: is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
The following provisions of LEP 2013 are relevant to the assessment of the application, but it is agreed between the parties that the proposal meets the requirements: 1. Clause 6.1 - Acid sulphate soils 2. Clause 6.2 - Earthworks 3. Clause 6.7 - Airspace operations 4. Clause 6.8 - Development in areas subject to aircraft noise 5. Clause 6.11A - Residential accommodation in zoned B1 and zoned B2 6. Clause 6.13 - Diverse housing
The Leichhardt Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are: 1. Part C: Place, Section 2: Urban Character C2.2.3.5 Leichhardt Commercial Distinctive Neighbourhood Desired Future Character Objective O1 To facilitate development that is consistent with the Desired Future Character and Controls for the Leichhardt Commercial Distinctive Neighbourhood. Controls C1 Maintain the character of the area by keeping development complementary in architectural style, form and materials. C2 Retain existing shopfronts, regardless of current or proposed use, to provide for future flexibility where they make a positive contribution to Heritage Conservation Areas. C3 Encourage appropriate signage consistent with the predominant signage type along each local area section. C4 Promote land uses and urban design that enhance and contribute to the character and identity of the neighbourhood whilst protecting Heritage Items and Heritage Conservation Areas that combine to help create that character. C5 Protect and enhance the residential amenity of dwellings in and adjoining the neighbourhood. C6 Improve accessibility, pedestrian amenity and linkages. C7 At the edges of the Leichhardt Commercial Distinctive Neighbourhood, encourage buildings containing a variety of accommodation types. C8 Preserve existing street trees and promote further street trees, using native species when possible. C9 Repave footpaths consistent with the Norton Street Improvement Project. C10 Promote the continuing development of a neighbourhood centre and identity, encouraging land uses and development that contribute to the economic well-being of the neighbourhood. C11 Encourage employment opportunities in the neighbourhood. C12 Enhance and promote the viability and potential for neighbourhood and local provision shops. C13 Building wall height is to be a maximum of 3.6m, unless an alternate building wall height is prescribed under sub area controls. C14 Signage along Norton Street and Parramatta Road must complement the existing signage of the streetscape, and signage above awnings will not be supported. C15 The consolidation and development of amalgamated allotments should be avoided and the pattern of small business and residential frontages maintained unless lot consolidation is encouraged in the Sub Area controls. C16 Development is to be consistent with any relevant Sub Area objective(s) and condition(s). 1. Part E: Place, Section 1: Sustainable Water and Risk Management E1.3: Hazard Management Objective To manage development of flood control lots and flood prone land to reduce risks and costs associated with flooding Control Commercial, Industrial and Mixed use Development C4 All floor levels, including existing components to be retained are to be at or above the Flood Planning Level or raised to the Flood Planning Level. Where constructing the floor level of existing development to the Flood Planning Level may be impractical, due to site or access constraints, consideration may be given to some or all of the non-residential floor levels having a free board of less than 500mm above the 100 year ARI flood level provided that satisfactory flood proofing (either wet or dry) is achievable to the Flood Planning Level. All entrances and evacuation routes servicing any components must be above the Flood Planning Level. Carparking C9 The floor level of new enclosed garages must be at or above the Flood Planning Level. Consideration may be given to a floor level at a lower level, within 500mm of the Flood Planning Level, where it can be demonstrated that providing the floor level at the Flood Planning Level is not practical within the constraints of compliance with Australian Standard AS/NZS 2890.1 Parking Facilities as amended. The floor levels of open car park areas and carports are permissible below the Flood Planning Level, subject to being raised as high as practicable within the constraints of compliance with Australian Standard AS/NZS 2890.1 Parking Facilities as amended Basement (below natural ground level) car parking must have all access and potential water entry points above the Probable Maximum Flood or Flood Planning Level, whichever is higher, and a clearly signposted flood free pedestrian evacuation route from the basement area separate to the vehicular access ramps.
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, SC 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.

Public submissions

The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the Leichhardt Development Control Plan 2013 (DCP 2013). In response to the notification, seven objections were received along with one letter of support. These submissions are summarised as follows: 1. that the development should include a provision for affordable housing; 2. that the development will result in an increase in traffic, that will be exacerbated by the Road configuration at the corner of Redmond Road; 3. that the excessive size of the development is not in keeping with the general amenity of the area; 4. that the development demonstrates a lack of consideration of adjoining residential development; 5. the proposal is premature as the planning strategy for Parramatta Road has not yet been finalised; 6. the shadow diagrams included in the development application are inaccurate; 7. the development will have an unacceptable impact on 303 Parramatta Road through; 1. an increase to overshadowing to the residence and private open space 2. overlooking from the residential development proposed 3. acoustic impacts 4. the provision of windows on the proposed boundary wall may impact future development potential of the site 5. potential for impacts on the existing structure during construction; 6. loss of access to ventilation; and 7. The impact of new construction adjacent the common boundary wall on waterproofing and drainage to the existing structure at 303 Parramatta Road. 1. concern for safety of cars existing the site in combination with the existing driveways and cars utilising the Council car park; 2. the use of the Council car park for access to the site is inappropriate and the Council car park should not be maintained for public use; 3. the excessive floor space, bulk and scale of the development is overwhelming in the context; 4. the proposed development is out of character with the heritage conservation area and not compatible with its context; 5. the proposed development has insufficient open space within the site; 6. residents expressed concern that the contamination issues that were identified in a previous development application (DA/2016/184) have not been addressed by this application; 7. bus stops on Parramatta Road near Catherine Street are the main public transport for foot traffic and the pedestrian access shown on the plans is inadequate; 8. the Hay Street car park is heavily utilised, including on weekends and out of trading hours; 9. concern that the development will increase pedestrians in the vicinity and the objectors are concerned that the existing facilities (footpaths, Road/traffic signage) are already inadequate and unsafe; 10. potential for the floor space variation to set a precedent for future development to breach council's controls; 11. impact on traffic, parking, vehicle and pedestrian manoeuvrability during construction; 12. waste management and the concern that there is inadequate kerb space for bin collection. These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

The Court heard expert planning evidence from Mr Darroch, for the applicant, and Mr Goodyer for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 2.
The Court heard expert heritage evidence from Mr Staas, for the applicant, and Mr Moore for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 3.
The Court heard expert stormwater and flooding evidence from Mr Bacha, for the applicant, and Mr Paton for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 4.

Parramatta Road Urban Transformation Strategy

The applicant seeks to include consideration of the Parramatta Road Urban Transformation strategy (the Parramatta Road strategy) in the assessment of the application. Urban Growth NSW released the strategy in November 2016.
Of contention between the parties is the role of the Parramatta Road strategy in the assessment of the development application before the Court. The strategy is supported by a direction from the NSW Planning Minister issued under s117(2) of the Act. Relevantly s117(2) states: (2) In addition to any direction which may be given under subsection (1), the Minister may direct a council: (a) to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and (b) without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and (c) to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council's performance in relation to planning and development matters. (2A) A direction under subsection (2): (a) may be given to a particular council or to councils generally, and (b) may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and (c) may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).
The relevant s117(2) direction is 7.3: Parramatta Road Corridor Urban Transformation Strategy (Exhibit 7). At paragraph [2] the s117 Direction confirms that it applies to the Inner West Council, and relevantly at [3] it states: This direction applies when a relevant planning authority prepares a planning proposal for land within the Parramatta Road Corridor…
It is the submission of the applicant that whilst the s117 direction does not have statutory weight under s79C(1)(a) of the Act, it should be given weight as a non-statutory planning policy and provide support for the applicant's requested variations to FSR under cl 4.6 of LEP 2013. Specifically the applicant seeks that the Court gives weight to the Parramatta Road strategy in determining what is the desired future character, and thus whether the development satisfies the test in cl4.4A (3)(c). The applicant argues that the Court, when it utilises LEP 2013, the DCP and the Parramatta Road strategy to inform what is the desired future character is, should find that the development is consistent with the character in relation to its bulk, form, uses and scale.
In the assessment of the application, the applicant seeks to rely on the fact that the strategic direction provided by the Parramatta Road strategy, for the subject site and all the surrounding land, is for additional development potential as identified in the following extracts which designate a proposed FSR of 3:1 and a height of 22m for the subject site: Extract of Figure 11:18 Leichhardt Recommended Building Heights Extract of Figure 11:19 Leichhardt Recommended Floor Space Ratios
Mr Darroch's evidence is that the Parramatta Road strategy whilst not setting controls, signals the intended desired future character to the applicant must respond given the existence of other new development of similar bulk, height and scale setback from Parramatta Road and in the absence of the articulation of any desired future character by the Council (Exhibit 2). He argues that it appropriate to look to the Parramatta Road strategy for an indication of the desired future character.
It is Mr Darroch's conclusion that the Parramatta Road strategy is clear and he states its direction of a desired future character of buildings setback above the existing Parramatta Road street wall height and achieving and FSR of 3:1 and heights of 22m (Exhibit 2). In the joint expert report, he notes that the proposed development is well within these parameters.
In submissions, Ms Reid refers to Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808 and the reasoning applied by Smithson C in considering the role of the Parramatta Road strategy in similar circumstances. Relevant extracts from the judgement are as follows: The parties agreed that the objectives of the zone have been met and I concur with this finding. In terms of meeting the objectives of the development standard for FSR, it was common agreement that these were the objectives of cl 4.4 A and the objectives were met other than the objective of demonstrating compliance with the desired future character of the area which was in dispute between the parties. In this regard, I accept the evidence of the applicant that the desired future character cannot be defined to the existing predominately 2-3 storey character of the older style development along Parramatta Road. It must reasonably include some form of redevelopment including above the existing street wall façade heights, as envisaged by the DCP. … In releasing the Parramatta Road Corridor Urban Transformation Strategy, the State Government has also flagged its intent in terms of desired future development form along this section of Parramatta Road. If implemented as proposed, the Strategy would result in changes to the character of Parramatta Road and the development would not be incompatible with that character. I accept that in the interim however, this application must be determined under the existing planning controls not potential future controls. … In coming to this conclusion [on the FSR variation], I am cognisant of the clear intent of the State Government as to the desired future character of the area evidenced through the Parramatta Road Strategy. However, whilst this provides some guidance on possible future character it was not and could not have been determinative in justifying the FSR exceedance or height sought. … I have therefore concluded that the development will be appropriate in its context having regard to both the desired and likely future character. Given the existence of other new development in the area of similar bulk, height and scale setback from Parramatta Road as this development proposes, I find the development utilises the flexibility offered by cl 4.6 to achieve an acceptable outcome justified in the detailed cl 4.6 written request provided…
Ms Reid also refers to the decision of the Court of Appeal in Segal and Anor v Waverley Council [2005] NSWCA 310 (per Tobias JA at [96]; Beazley and Basten JJA agreeing) 96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed. It is Ms Reid's submission that the decision is Segal and Anor v Waverley Council encourages Commissioners of the Court, where appropriate to apply consistent reasoning to appeals where the key facts and the issues in dispute are consistent. Ms Reid argues that given the similarity in the current case and that decided in Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808, it is appropriate for the Court to be consistent in its determination of the desired future character.
In the alternative the Council argues that the role of the strategy is constrained to the exercise of planning functions in relation to the preparation of a local environmental plan (s117(2)(a)) and that the Parramatta Road strategy provides no guidance for the assessment of the current application.
It is the submission of Mr Bonanno that the strategy is uncertain and whilst it it may result in an increase in FSR and height controls for the subject site, when it is implemented, any reliance on the document needs to also consider the other controls that may also apply. In particular, Mr Bonanno references landscape area, site coverage, affordable housing and increased s94 developer contributions as likely controls to eventuate from the implementation of the Parramatta Road strategy. It is his submission that any benefit from the Parramatta Road strategy should be balanced by the burden inherent in the document, and that this balance is what will be clarified in the implementation through the Precinct Plans to be prepared by the Greater Sydney Commission.
Mr Goodyer's evidence is that the desired future character for the area is not determined by placing weight or giving consideration to the Parramatta Road strategy, but rather by the application of cl D2.2.3.5 of DCP 2013. Mr Goodyer concludes that the Parramatta Road strategy is not a relevant matter for consideration and it is an inappropriate document to refer to in defining the desired future character. He relies on the statement in the s117 direction that states the Parramatta Road strategy only applies 'when a relevant planning authority prepares a planning proposal for land within the Parramatta Road Corridor'.
In support of his conclusion Mr Goodyer refers to the Implementation Tool Kit, that forms part of the Parramatta Road strategy documentation which identifies that any additional height or FSR proposed for the site or the precinct would be implemented through a planning proposal: Future statutory planning processes will test and refine urban development and appropriate densities along the corridor. More detailed transport network assessment beyond the work presented in this report will be required to confirm the extent and density of urban development as part of future rezoning or development proposals.
It is Mr Goodyer's evidence that there is significant uncertainty as to the ultimate height and FSR controls that will be adopted. It is his view that consideration of: streetscape; traffic; solar access; provision of open space; setbacks etc. as well as engagement with the community will influence the finalisation of the appropriate controls for the precinct and relevantly the subject site.
In conclusion, Council submits that, as identified in the s117 direction, the Parramatta Road strategy should only be considered in the context of a planning proposal, not a development application such as that before the Court. It is the councils view it should not be utilised determined desired future character in replacement of the DCP, and in particular the controls at C.2.2.3.5.

Findings

In light of the evidence and submissions I prefer the position put by Mr Goodyer and Mr Bonnano that at this time the role of the strategy is contained to the exercise of the planning functions in relation to the preparation of an LEP (s117(2)(a). I am not persuaded that the strategy is of relevance to the determination of the desired future character of the precinct for the following reasons: 1. I agree with the evidence of Mr Goodyer at [44] that prior to finalisation of any firm development controls consideration will need to be given to the impacts of the proposed building envelopes and densities of development. This will occur as part of the statutory planning process that is required to be followed to translate the strategy into land use controls, as outlined in the Act. I concur that this strategic planning process will likely influence and shape the final outcome; 2. I do not accept the applicant's submission that it is appropriate to give the Parramatta Road Strategy weight, along with LEP 2013 in determining the compliance of the development with cl 4.4A(c) in LEP 2013, and thus in justifying the FSR exceedance sought.
The effect of Segal & Anor v Waverley Council [2005] NSWCA 310, is that I am neither bound to follow Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808, even if it is relevant to the resolution of the principal contested issue (ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1023). However, in this case, I concur with the view of Smithson C in relation to the weight that should be applied to the Parramatta Road strategy, as detailed in her judgement Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808 at par 83 and 87.
I accept the submission of the Council that, as identified in the s117 direction, the Parramatta Road strategy should only be considered in the context of a planning proposal, not a development application such as that before the Court.

Is the development compatible with the desired future character of the area in relation to its bulk, form, uses and scale?

The key issues in dispute in these proceedings turn on the determination of the desired future character of the precinct, and whether the development proposed is compatible with this character. This issue has two other interrelated considerations that the Court must be satisfied on if consent is to be granted. These considerations are: the appropriateness of the requested variation to floor space; and the consideration of the impact of the development on the heritage conservation area and whether it is acceptable.

Is the additional floor space, sought by the clause 4.6 variation request, appropriate?

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 to the height or FSR standards by demonstrating that the breaches of the two development standards are justified.
In Randwick City Council v Micaul Holdings Pty Ltd [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, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with 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)). 4. 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)). I have applied these tests to the current application in the following.

Consistency with the zone objectives:

In considering the question of consistency in relation to the zone objectives, I have 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.
On the basis of the evidence of the planning experts, and my review of the variation request (Exhibit H), I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the zone. I am satisfied that the development will: provide retail opportunities in an accessible location, close to public transport; provide a range of compatible land uses; and there is no contention that it will detract from the local centre. The remaining zone objective states: To ensure that development is appropriately sited to minimise amenity impacts. The only amenity impact contended by the Council is overshadowing to the adjoining property at 303 Parramatta Road. In considering this objective, I rely on the conclusion of the planning experts in Exhibit 10 which states: In summary we agree that the solar access received by 303 Parramatta Road following the proposed development is compliant and considered and acceptable solution. I am satisfied on the basis that the test is it is not necessary to show the development promotes these objectives or is compatible with them that it can be argued the development is also consistent with this objective of the B2 zone.
Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

Consistency with the objectives of the standard in question:

It is agreed between the parties that the relevant clause to which the applicant seeks a variation is Cl 4.4A: Exception to maximum floor space ratio for active street frontages. Clause 4.4A states: (1) The objective of this clause is to provide floor space incentives for mixed use development that incorporates active street frontages at ground floor level in Zone B1 Neighbourhood Centre or Zone B2 Local Centre. (2) This clause applies to land identified as "Area 1" on the Floor Space Ratio Map. (3) Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied that: (a) the building will have an active street frontage, and (b) the building comprises mixed use development, including residential accommodation, and (c) the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. (4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following: (a) entrances and lobbies (including as part of mixed use development), (b) access for fire services, (c) vehicular access. (5) In this clause, a building has an active street frontage if all floor space on the ground floor of the building facing the street is used for a purpose other than residential accommodation. It is agreed between the parties that the site is within Area 1 and there is no dispute that the development satisfies (a) and (b) of 4.4A(3), which details the matters that the consent authority must be satisfied of. The contention between the parties is whether the development satisfies cl 4.4A(3)(c), as highlighted above.
It is agreed between the experts that the maximum FSR for the site is 1:1 under cl. 4.4(2) of LEP 2013 or 1.5:1 if the proposal satisfies cl.4.4A(3)(c) of LEP 2013.
The experts disagree as to the calculation of the gross floor area of the building. LEP 2013 applies the standard template definition of gross floor area. Mr Goodyer's evidence is that the gross floor area of the proposal should include the internal corridors within the building and that in doing so calculates the FSR of the proposed development as 2.75:1. In the alternative, Mr Darroch relies on the decision in GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521 at [31] to exclude the corridors from the calculation. He concludes that the FSR of the proposal is 2.44:1. Nothing turns on whether or not the corridors are included in the calculation of FSR or not as the FSR development standard is exceeded regardless, and is subject to the cl 4.6 variation request.

What is the correct FSR for the proposal?

As detailed in Danks v City of Sydney [31] the definition of gross floor area requires the floor area at each level of the building to be measured at the internal face of the external walls. In the specific design considered by O'Neil, C in the above case, the corridor in question was not enclosed by a wall that acted to weatherproof the building, or that formed a part of the buildings façade. On this basis, and the practical fact that the corridor would be wet during inclement weather, she found it was appropriate to exclude the floor area of the corridor, as it could not be characterised as internal floor space. This is not the case in the current development application where, on the evidence of Mr Darroch, the louvered openings in the end walls of the corridor are proportionally insignificant (Exhibit 2). I concur with the evidence of Mr Darroch and find that the corridors as proposed are properly characterised as internal floor space, and should be included in the calculation of gross floor area. This is consistent with the findings of Morris, C in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577. As such the development application before the Court has a FSR of 2.75:1. Is the development consistent with the desired future character, as required by cl.4.4A(3)(c)?
In his oral evidence Mr Goodyer concluded that the determination of desired future character is found by looking to the controls in the DCP, the locality statement and the specific controls in c2.2.3.5. It is his conclusion that the proposal does not satisfy the requirements of cl.4.4A(3)(c) because it is inconsistent with the desired future character. He supports this conclusion by detailing the compliance of the development with the controls specified in C2.2.3.5. He concludes that principally the development is not compliant with C5 and C13, leaving the consideration of controls C2 and C4 to the heritage experts. His conclusions are as follows: C5 Protect and enhance the residential amenity of dwellings in and adjoining the neighbourhood. The proposal does not protect and enhance residential amenity. The scale of the development does not relate to the surrounding development including 303 Parramatta Road or the residential area to the north of the site, resulting in an overbearing building. … The site is at the interface with residentially zoned land to the north-east. The LDCP 2013 contains provisions in Part C4.5 with the objective of ensuring that development does not impact the surrounding areas or cause unreasonable nuisance, including "overly bulky or overbearing development that significantly reduces outlook or privacy". Control C2 seeks to achieve this objective by providing, amongst other things, "maximum building height is compatible with the height of existing or approved buildings". The proposed building height bears no relationship to the existing or approved building heights of buildings adjoining the residential zone to the north-east. Consequently, the maximum floor space ratio permitted on the site is 1:1 under clause 4.4(2) of LLEP 2013. C13 Building envelope is to be a maximum of 3.6m, unless and alternative building envelope is prescribed under sub area controls. The proposal does not comply with the 3.6m building envelope control and there is no alternative building enevelope under any sub area controls.
In Mr Goodyer's opinion, the proposal fails to satisfy the objectives of the floor space ratio control. Firstly, it is inconsistent with the desired future character of the area in relation to building bulk, form and scale for the reasons detailed above. Secondly, the proposal does not minimise the impact of the bulk and scale of the building proposed.
Mr Bonnano submits that the desired future character is properly defined in DCP 2013 at C2.2.3.5 and this DCP control is consistent with cl 4.4A and should be applied in determining satisfaction with (c), namely whether the development is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.
The parties agree that consideration of the applications impact on the heritage significance of the conservation areas is also relevant to the consideration of the proposed developments satisfaction of cl 4.4A(3)(c).
Mr Moore's oral evidence is that the architectural style of the development has been informed by discussions with the applicant and Council is satisfied by the character of the building. However in the joint report he states that it's (the development's) scale and height, resulting from the number of storeys and FSR- which at 2.499:1 considerably exceeds the permissible 1.5:1- remains a substantial contextual problem. It is Mr Moore's conclusion that the proposed development conflicts with the significance and characteristics of the conservation area in which it is located, and will also unreasonably impact the established period residential areas to the north (Exhibit 3). Essentially Mr Moore's evidence is that tower B (fronting Parramatta Road) will be prominent due to its height, scale and bulk and will detract from the heritage importance of the precinct. It is this component of the development (tower B) that he concludes is inconsistent with the desired future character sought by cl 4.4A(3)(c).
Mr Staas has a contrary view of the impact of the development on the desired future character. He places weight on the Parramatta Road strategy and argues that the determination of future character must take into consideration this strategic planning objective to increase residential and mixed use development along the Parramatta Road corridor from Camperdown to Granville. He relies on the urban design work completed by Inner West Council (Exhibit K) which he says concluded that six storeys was an appropriate response to the site. As detailed in the following extract from the joint report he concludes that the development does not detract from the existing character and will remain appropriate in the likely future context. In heritage terms the only structure of noted significance in the immediate context of the subject site within the conservation area is the Albert Palais Events building. The building on the corner of Hay Street is considered to be 'contributory' to the character of the precinct. Other structures in this block are identified as being 'intrusive' or 'neutral' and this indicates that new infill development will occur on these sites. The subject site is located mid-way between the two identified contributory buildings in this block suggesting that it can sustain greater development than sites directly adjoining the contributory items where transitional requirements may possibly apply. In my opinion the proposed development does not detract from the established character of the corridor as a result of the appropriate scale and design of the Street wall presentation of the podium structure and the reduced height to the rear of the site where it is in proximity to lower scale, residential development that lies outside the conservation area. In this location considerations of heritage character will be reduced by the potential future redevelopment of the majority of buildings in the block resulting in the primary character being defined by the new buildings.
In contrast to Mr Goodyer, on the basis of the following reasoning, Mr Darroch concludes that the development is consistent with the desired future character, and therefore complaint with cl.4.4A(3)(c). He argues that desired future character is derived from the DCP, but informed by a review of previous approvals, and therefore how Council has applied the controls. In forming this view he relies on: 1. The determination by Smithson, C in Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808 that the development proposed by that application was consistent with the desired future character. As well as her conclusion, that future character cannot be confined to the existing 2-3 storey character of the older style development along Parramatta Road and that it must reasonably include some form of redevelopment above the parapet height (par 84). He notes that that development application at 477 Parramatta Road had an FSR of 2.12:1; and 2. His research of a pattern of recent Council approvals that exceed the 1.5:1 FSR standard, including recessed development above a street wall façade and non-compliant FSRs and heights (Exhibit G). It is Mr Darroch's conclusion that the contents of this exhibit demonstrate: an established pattern of approvals which exceed the controls (which) have undermined the existing controls and in the absence of a clear and relevant desired future character statement on what is sought by the Council relative to what exists today and having regard to the redevelopment that has been approved and built which informs the changing character of Parramatta Road one must look to the PRCUTS (the Parramatta Road Strategy) for an indication of the desired future character (Exhibit 2). 1. The approach to the design of the subject site means that, whilst the proposal breaches the 1.5:1 FSR control, it does so because of the depth of the site and the application of the Apartment Design Guide, which produces a two part building form. It is Mr Darroch's view that this relocation of building mass has the following advantages: 1. it locates the building further away from the sensitive northern neighbours; 2. its repositions the height at the centre of the site, which can accommodate the increased scale, and forms a complementary form to that which occurs on the Petersham Hotel site opposite. 3. It has the advantage of retaining outlook, skyline views and solar access and daylight to the dwellings to the north.
In the written FSR variation request Mr Darroch elaborates on the approach to the site planning of the subject site, and he compares the impact and merit of the current approach to a two alternative schemes compliant with FSR (1.5:1), but with greater site coverage. It is his conclusion that the proposal provides for a better planning outcome in making available improved amenity, reduced impacts and a coherent streetscape. This is considered to be a better outcome consistent with the objectives of clause 4.6. Failure to set aside the standard would either give rise to greater adverse impacts (in comparison with the proposed development) or result in inefficient use of the land (contrary to the planning intent for this key locality) (Exhibit 11).
Ms Reid argues that desired future character is not defined in DCP 2013 and that it should have its ordinary meaning. In forming this conclusion her submission is that the desired future character contained in the DCP objective at C2.2.3.5, which states: to facilitate development that is consistent with the Desired Future Character and Controls for the Leichhardt Commercial Distinctive Neighbourhood, requires a determination of desired future character, before the application of the controls. It is her submission that in the assessment of this application desired future character should be read with a bRoad meaning. She argues that the approach taken by Mr Goodyer to determine the desired future character (and therefore the satisfaction with clause 4.4A(3)(c)) by direct application of the DCP controls is incorrect.
As the site does not fall within a distinctive area, as defined by the DCP, Ms Reid argues therefore that the site does not hold specific characteristics that require additional controls or considerations to ensure development is appropriate. She argues that the Court, in determining what the appropriate degree of flexibility is under cl 4.6, should be informed by the Parramatta Road Strategy.
Ms Reid submits that within the development proposed Tower B is the only floor space in contention, and she relies on the evidence of Mr Darroch whose analysis in the FSR variation request concludes that the proposal performs better that a complaint scheme. She argues that on the basis of the planning approvals detailed in Exhibit G, the Court could conclude that the FSR control has been abandoned by the Council in its application along Parramatta Road. It is her conclusion that to refuse the additional height, or require the development to comply with an FSR of 1.5:1, would result in a development that would be inconsistent with these approvals (and their resulting built form) as well as the implementation of the Parramatta Road Strategy.
In contrast, Mr Goodyer concludes that the site is at the interface with residentially zoned land to the north east and that the DCP, at Part C4.5, has the objective of ensuring development does not impact the surrounding area or cause unreasonable nuisance, including "overly bulky or over bearing development that significantly reduces outlook or privacy". He argues that the Control C2 seeks to achieve this objective by requiring development to be "compatible with the height of existing or approved buildings". It is Mr Goodyer's evidence that the proposed building height bears no relationship to the existing or approved building heights adjoining the residential zone to the north east. Consequently, the maximum floor space ratio permitted on the site is 1:1 under clause 4.34(2) of LEP 2013. It is his evidence that the proposal fails to satisfy the objectives of the floor space ratio control as it is inconsistent with the desired future character of the area in relation to building bulk, form and scale and it fails to minimise the impact arising from that bulk and scale. In relation to Tower B specifically, it is Mr Goodyer's evidence that the parapet outline is the most important part of the street wall. It is his evidence the setback of Tower B from the street alignment proposed is not sufficient to assist in achieving the ongoing prominence of the street wall and its parapet.
In contrast to Ms Reid, Mr Bonanno submits that a more reasonable review of Exhibit G is that it is a series of applications that demonstrates that Council has applied the current controls in a way that is not inconsistent with the intent of cl 4.6. He argues that the applicant has not established Council has abandoned the floor space ratio control. His review of the recent approvals contained in Exhibit G, and relied on by the applicant, can be summarised as follows: 1. the s96 approval at 469-483 Parramatta Road it is of little relevance as it was approved under the previous instrument. The variation was accepted by Council as it had minimal impact on streetscape; no adverse impact on neighbours; and did not alter the bulk and scale of the development; 2. the development application at 371-375 Parramatta Road was assessed under the current LEP, and therefore cl 4.4A. The FSR approved was 1.74:1. The assessment concluded that the proposed three storey form created no amenity impacts, satisfied SEPP 65 and the DCP. 3. 351-353 Parramatta Road was approved as a mixed-use development. The proposal is located on a small site and seeks a variation to achieve an FSR of 1.92:1. The council report concluded this was acceptable because: the floor space is contained behind the primary façade; it will preserve the heritage character of the areas by virtue of its bulk and scale; maintains the amenity to adjoining neighbours; and contains an internal common area. 4. Similar to (1) the application for redevelopment of 6-8 Norton Street was prior to the current LEP. However, the variation request was supported by Council because it maintained the character of the area, achieved future needs for accommodation, preserved amenity and satisfied the sub precinct objectives in the DCP. 5. 283-385 Parramatta Road is a three level mixed use development, that has an FSR variation comparable to the current application. It was approved under the 2000 LEP. The Council report indicates that the variation was supported because: the additional floor space was contained behind the primary façade; will be comparable to others in the area; and will preserve the heritage character of the area by virtue of its bulk and scale. The proposal was assessed as maintaining the amenity to the surrounding properties. 6. Under the previous LEP 6-8 Norton Street was approved as a six storey mixed use development which was approved with an FSR variation of 2.71:1. The variation request was supported because: it maintained the character of the area; provided additional accommodation; preserved the amenity of the surrounding properties; and satisfied the sub precinct objectives. Mr Bonanno argues that the small site area influences the extent of variation to the FSR. 7. Under the previous LEP 283-285 Parramatta Road was approved as a mixed use development with an FSR of 2.75:1. The site is small in area (294sqm) and the variation request argued that the additional floor area would not impact on the streetscape, or any residentially zoned land. 8. 347-349 Parramatta Road was approved with retail premises at the ground floor and student accommodation above. Under the previous LEP a variation to be FSR was approved to 2.54:1. The variation request was accepted based on the development appearing as three storeys, and having no impact on neighbours. The site had an area of 244.3sqm. 9. 377 Parramatta Road was approved for commercial premises on the ground floor and seven residential units. The design presents as three storeys to Parramatta Road and Mr Bonnano argues that the exceedance was accepted on the fact that all the criteria of c4.4A under the current LEP were met.
In relation to of 447 Parramatta Road (Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808) Mr Bonnano argues that the resulting development will be inconsistent with the desired future character. He submits that Council has not abandoned the standards in cl 4.4A of the LEP, and instead has applied the controls flexibly, having regard to the underlying considerations of the LEP and cl 2.2.3.5 of DCP 2013. In relation to the preset and value of the approvals in Exhibit G, he distinguishes the current application on two grounds: firstly it affects streetscape and amenity; and secondly a number of the examples relied on were under an earlier LEP instrument. It is his submission that the Court should find that the application is not consistent with the objectives of the standard.
In reply, it is Ms Reid's submission that the approvals contained in Exhibit G demonstrate that the Council has applied generous flexibility on each occasion, in circumstances that are consistent with the current application, and in proximity of the subject site. She states that for the Court to insist on development with an FSR of 1.5:1 will result in a development that is inconsistent with the development that will result from these approvals. It is her submission that applying the ordinary meaning of desired future character, the DCP controls, and these approvals the Court should conclude that the proposed development is consistent with the objectives of the standard.

Findings

Following a review of all the evidence from the experts, and submissions from the representatives, I find the following: 1. I concur with the Council that it is not appropriate to consider the Parramatta Road Strategy in determining the compliance of the development with clause 4.4 A(3)(c) for the reasons given at [48]. 2. Following a review of the relevant documents, I am satisfied with the analysis by Mr Bonanno of Exhibit G and, based on the evidence before the Court, I conclude that the applicant has not established that the Council has abandoned the FSR control. 3. I concur with the approach of Mr Goodyer in determining the desired future character by reference to the relevant planning controls, and the existing built context and uses as outlined at [61].
The conclusion of my assessment is that the variation to the FSR requested, and the scale of the development proposed (in particular tower B) is not compatible with the desired future character of the area in relation to its bulk, scale and form. I find that the development is not consistent with the objectives of clause 4.4 A(3)(c) of the FSR standard. As a result the development does not access the increase in FSR to 1.5:1.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is not with consistent objective (c) of cl 4.4A standard. In forming this conclusion I note that a consideration of consistency with the objectives of the standard, required under cl4.6(4)(a)(ii), and a determination that noncompliance with the standard would be in the public interest is different to the consideration of achievement of the objectives of the standard under cl 4.6.(3)(a) where the applicant is required to demonstrate the objectives are achieved, despite noncompliance (see Moskovich v Waverley Council [2016] NSWLEC 1015 [54]). It is my finding this has not been met in this proposal.
Given the evidence and the findings reached in the preceding paragraphs I find that I cannot be satisfied that the applicant's written request adequately justifies a variation to the objectives of the underlying FSR standard clause 4.4.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. Consequently there is no power to grant consent to the development application which does not comply with the control in cl 4.4A of the LEP and the application must fail.

Does the development have an adverse impact on the significance of the conservation area?

The principal issue in dispute between the heritage experts relates to the scale, bulk and height of the building B component of the proposal. Building B sits behind a 2-storey frontage along Parramatta Road and has a total height of 6 storeys. The heritage experts are agreed that the proposed rebuilt lower facades to the Parramatta Road frontage and the rear lane, proposed by the development, are acceptable in scale and character, notwithstanding their number of storeys.
Relevant to the consideration of any impact on the heritage significance of the PCA is the statement of heritage significance for the conservation area. The following statement of significance was adopted by the Council: Parramatta Road Conservation Area Statement of Significance or Why the Area is Important The Parramatta Road corridor, a mix of commercial / retail, factory / warehouse and residential development, has historical significance for its ability to demonstrate the changes in retail and commercial development along Sydney's oldest and most important transport route. Shops, commercial buildings and factory warehouses from major periods survive along the Parramatta Road corridor and contribute to the historic, aesthetic, and social values of the conservation area. Residential development, generally located away from the main arterial Roadways, characterise the emerging suburbs. Parramatta Road Commercial corridor contains a variety of retail and commercial built forms. The built form provides evidence of the final subdivision pattern of the historic estates of Elswick, Hay Hill, Wheeler and McNamara, Redmond, North Annandale and Camperdown in the late nineteenth century as well as evidence of the effect of Road widening on the built environment. Dating from the 1880s through to the beginning of World War II, the character and quality of buildings along the Parramatta Road commercial strip varies from high quality to ordinary. Much of the heritage value is derived from its historic role as one of a major 19th and early 20th Century commercial areas lining one of Sydney's most important transport corridors. The Parramatta Road commercial corridor is historically significant for its ability to demonstrate changes along one of Sydney's major arterial Roads and the ability to adapt to changing conditions and commercial needs. The collection of relatively intact facades above ground floor level, and the remaining primary intact forms, along the northern side of the Road have aesthetic significance as an example of a commercial, predominantly late Victorian era main street that as a group forms a strong, continuous streetscape wall to Parramatta Road. Good examples of historic corner buildings include the Goodman's Building and Empire Hotel that mark the gateway to Annandale's main arterial Road. The Parramatta Road commercial corridor contains a collection of notable public houses with historic and aesthetic significant for their ability to reflect in part some of the historic staging posts on the early main western land route into the colony and the development of the architectural styles of public houses in Sydney. The factories and warehouses are located in close proximity to the Parramatta Road corridor. Warehouse buildings date from the Federation and Inter-War periods, the robust character of this precinct contrasts with the finer-grain character of the commercial and residential buildings. ▪ A distinctive pattern of rear lanes used as loading docks form part of the character of the area. Residential development comprises intact examples of Late-Victorian boom period suburbs with rich architectural details enhanced by some verandah, balcony and awning reinstatement. Residences include a variety of two-storey and singlestorey dwellings, single and double-fronted free-standing, semi-detached and terrace groups, dating from between 1871 and 1891 generally built in brick. There are pockets of infill flats (from one to three storeys) and bungalows that pre-date the Second World War. Victorian Italianate boom period villas with intact decorative detailing are generally located within Albion Street in close proximity to Johnston Street. Other residences range from small-scale workers cottages to larger dwellings. Corner stores are generally remnants. Street planting in Road reserve of wider streets - in particular, plantings along Annandale Street
It is the evidence of Mr Moore that the architectural character of the building proposed is supported. However, the scale and the height of the tower element is a substantial contextual problem for the application when the proposal is assessed against clause 5.10 of LEP 2013. It is Mr Moore's conclusion that the development conflicts with the significance and the characteristics of the conservation area in which it is situated and the proposal unreasonably impacts on it.
In forming this conclusion of Mr Moore states that the impact on significance arises from the intrusiveness of the height of tower B and its bulk in the skyline view along Parramatta Road. It is this intrusiveness and the reduction of the prominence of the two storey street wall, and the view of the parapet against the skyline, that generates negative impact on the heritage conservation area.
In the alternative, Mr Staas relies on the Parramatta Road strategy document to establish the desired future character of the precinct, and the specific urban design study prepared for the Council. These documents recommend six storeys as being suitable for the subject site. It is his view that the desired future character of the area must take into consideration the strategic objective to increase residential and mixed-use development along Parramatta Road from Camperdown to Granville. It is his evidence that in heritage terms: the only structure of noted significance in the immediate context of the subject site within the conservation area is the Albert Palais events building. The building on the corner of Hay Street is considered to be 'contributory' to the character of the precinct. Other structures in this block are identified as being 'intrusive' or 'neutral' and this indicates that new infill development will occur on these sites. The subject site is located midway between the 2 identified contributory buildings in this block suggesting that it can sustain greater development than sites directly adjoining a contributory items (Exhibit 3). It is Mr Staas's conclusion that the proposed development does not detract from the established character of the corridor and will not have a negative impact on the heritage conservation area.
In response to Mr Staas's statements Mr Moore argues that the site falls within what the Parramatta Road strategy identifies as a "Parramatta Road iconic view" when looking eastward to the city. He maintains his conclusion that the proposed towers of the development would be concerning the prominent in this view corridor. His evidence is that the proposed development on the subject site is more of a proportion and scale that would be appropriate in a non-conservation location. He does not concur with Mr Staas' evidence that the identification of the existing development upon the subject site and adjacent sites as suitable for infill development alleviates the applicant's responsibility to address the 'conservation oriented controls of the LEP and DCP which apply to the site' (Exhibit 3). It is his opinion that the term 'infill development' implies development acknowledging and respecting the scale of its context.
In relation to the development's consistency with the heritage aims of the LEP, and in particular cl. 5.10, Mr Moore argues that by adopting an excessive height and bulk, which is inappropriate for the conservation area, the development is not consistent with the LEP aims or clause 5.10. It is his view that this precludes the approval of the application. Mr Moore's opinion is that the development is excessive in height and is not compatible with the special setting in which it is located. It is his view that this incompatibility could be addressed by a reduction in the height of the development (Tower B).
In contrast the evidence of Mr Staas is that the heritage significance of the conservation area would be largely unaffected by the proposal. He emphasises that the experts both agreed that demolition is acceptable and that the proposed development will replace a neutral building, and an intrusive item. It is his view that no heritage item or their setting, or view, is unreasonably affected by the proposal. It is Mr Staas' opinion that 'the special setting' that Mr Moore refers to is undergoing a change as a result of the State government policies for urban renewal and consolidation. He states while the infill (proposal) will result in change to the status quo, it would not be detrimental to the overall character of the linear conservation area, or impact on other more intact sections of it (Exhibit 3). It is his evidence that the built form of the development at the street frontage is capable of being read with the tower behind it, and this arrangement of built form does not detract from the heritage significance.
Ms Reid argues that Mr Moore's evidence was unable to establish why the site is unable to sustain the level of development previously approved by the Council and the Court in analogous circumstances. Therefore she submits that the Court should prefer the evidence of Mr Staas that the site is capable of absorbing additional height with no impact on the significance of the heritage conservation area and that it will result in the removal of a detracting and a neutral item. However, if the Court was to conclude that the development did affect the significance of the heritage conservation area, the impact may be accepted on balance when considered as part of the overall assessment under s79C of the Act. Findings:
On consideration of the evidence, the applicable planning instruments and the statement of significance, it is apparent that the relevant character in this matter is that of the street wall and the arrangement of buildings that form the corridor. This character is recognised in the statement of significance where the commercial uses are identified as forming a strong continuous street wall to Parramatta Road. Whilst the redevelopment of the site will result in the removal of a detracting item, I accept the evidence of Mr Moore that the form and bulk of tower B is intrusive and detracts from the prominence of the two storey street wall form (which is identified in the statement of significance). I concur with Mr Moore's evidence that the current proposal does not achieve contextual fit, and I am satisfied the development would have a detrimental impact on the heritage conservation area.
Pursuant to cl 5.10(4), after considering the effect of the proposed development on the heritage significance of the conservation area I find the impact is unacceptable. In conjunction with the findings at [76, and 77] I am satisfied that the development will have a detrimental impact on the heritage character of Parramatta Road that is sought to be retained by the statement of significance I find that the impact is sufficient to warrant the refusal of the application.
For completeness, I will briefly deal with the subsequent components of the assessment of the cl 4.6 variation request, and the remaining issues in dispute between the parties.

Is it established that compliance is unreasonable or unnecessary?

Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant has utilised Wehbe tests 3, namely that a compliant development would provide less incentive for the redevelopment and that the objective would be thwarted if compliance was required. The applicant also relies on test 4, that Council has abandoned the control. I have addressed this ground in the proceeding at [76] with the finding that the applicant has not provided sufficient evidence to establish this test.
Mr Darroch argues that the proposed development breaches the FSR in part as a result of the depth of the site, and the application of the controls in the Apartment Design Guide, under SEPP 65. It is his evidence that these two factors result in the site design being in a two building form. It is his evidence that this approach has the following benefits: 1. It relocates building mass away from the sensitive northern neighbours and repositions it centrally on the site. This location on the site can accommodate the increased scale and is complementary to the form of development that occurs on the Petersham Hotel site opposite. 2. The location of the bulk and height of the development centrally serves to retain outlook, skyline views, solar access and daylight for the dwellings to the north.
To demonstrate that the objectives of the control would be thwarted if compliance was required, the variation request outlines two alternative 'compliant schemes' they are: 1. Scheme 1 which follows the 1.5:1 FSR control across the site with full site coverage. The building would be of a single storey form to Parramatta Road with an additional five storeys of development above; 2. Scheme 2 which followed the 1.5:1 FSR as above, with a height of two storeys at Parramatta Road, similar to the existing building. This scheme would not accommodate the proposed setback to the rear for the future bike bath/ Road widening.
The applicant's variation request states, in part: The first compliant scheme (as outlined above) would thwart the FSR control objective set out in clause 4.4A (1)… in that it effectively minimises the active street frontages and fills the ground plane with parking, servicing and back of house activities in order to preserve floor space to support the residential accommodation on the upper levels. … The second compliant scheme would thwart the FSR control objective set out in clause 4.4A (1)…in that it effectively recreates the building form and volume which currently exists and does not act as an incentive for mixed use development. The only other alternative - reducing the intensity of development of the site - would thwart or undermine the objectives of the B2 zone. (Exhibit H)
As outlined at [72] Mr Goodyer is critical of the building form, its interface with the residential and its achievement of the desired future character. He concludes that the development does not achieve the objectives of the FSR control.

Findings:

I find that I can't be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP. I do not concur with the submission in the variation request that the failure to set aside the standard would either give rise to the adverse impacts associated with the two alternative compliant schemes or (if those adverse impacts are to be avoided) an inefficient use of key land (Exhibit H). On the basis of the evidence I am not satisfied that the objective of clause 4.4 A(3)(c) will be thwarted if compliance with the control is required and therefore the applicant has not established that compliance is unreasonable or unnecessary in the circumstances of this case.

Are there sufficient environmental planning grounds to justify the variation?

The applicant's variation request states, The actual proposed development is considered to be a better planning outcome that the two possible compliant developments. Consideration has been given to the shadow, privacy, views and outlook amenity impacts of the elements of the building that breach the FSR control and it is concluded that no significant impacts occur when compared with a compliant development. Whilst the above is sufficient to establish a better planning outcome, the contribution that the development will make to improving the public domain with the dedication and embellishment of the widening of the access way is a further reason why the proposal achieves a better planning outcome. … The contravention of the control by the proposal does not give rise to any environmental effect of sufficient significance that would cause concern. It is considered that the environmental benefits of the proposal. ie: providing accommodation with good amenity; providing the widening and embellishment of the access way; dedicating of land to Council for public purposes; retaining and improving residential amenity for the neighbouring interface dwellings, is on balance an appropriate environmental outcome, to justify the contravention of the development standard.
In the original proposal, the applicant relied on lot 1 DP 202254 (in part) for access to the development site by waste vehicles. Currently lot 1 provides access to the Hayes Street car park and operates informally as a cycleway. Subsequent amendments to the design have removed this reliance on lot 1, and all vehicle movements are now contained within the site. However as part of the development application the applicant included a voluntary planning agreement offer with the following components: 1. dedication to Council of a 3.5m wide northern setback with an area of 93m² for pedestrian and vehicular purposes; 2. embellishment of the dedicated land; 3. a financial contribution to the Leichhardt Council (now Inner West) to provide for delivery of Community Infrastructure of the site but within Leichhardt;
The applicant maintains their offer to enter into the planning agreement to dedicate the land to allow the widening of access to the Hayes Street car park. Council however has advised the applicant they do not wish to enter into such an agreement, and argues that it should not be relied on in the assessment of the clause 4.6 variation request. Mr Darroch, in his oral evidence, maintains that the proposal through its rear setback will maintain the ability for Council to achieve the creation of the bike path, noting it is in identified in Council's Bike Plan. It is his view this remains an environmental planning ground, along with those identified above, to justify the variation under clause 4.6.

Findings

Based on the evidence I am not satisfied there are sufficient planning grounds to justify the exceedence of the FSR standard. I am not persuaded that the two alternatives explored by the variation request would be the only, or most appropriate, approach to the development of a compliant scheme on the subject site. I am not satisfied the applicant has established that the proposal is a better planning outcome, or is one that has less amenity impacts than one which was compliant. In forming this conclusion I have given weight to the impact of the proposal on heritage [refer 91], and the impact on adjoining residents solar amenity and outlook. By reference to the overshadowing plans, attached to exhibit 10, it can be determined that the impact, at least in part, arises from tower B and the non-compliance in FSR. In contrast to the expert evidence of the planners [refer 112] I am not satisfied that the reduction of sunlight to skylights to the living areas in midwinter, where this arises from the non-compliance, is satisfactory. These findings do not support a conclusion that there are sufficient planning grounds to warrant the variation in floor space requested by the applicant.
Whilst not relied on by the applicant, as the development has been found not to meet the objectives of cl 4.4A, the base FSR pursuant to clause 4.4 would apply to the site. This clause is also subject to clause 4.6, and thus could be varied if warranted to accommodate the proposal. Clause 4.4 (1)(a)(i) requires residential development to be compatible with the desired future character of the area in relation to building bulk form and scale and a (b) the same objective applies to commercial development. For completeness I am satisfied that given my finding is at [76] and [77] a variation to these controls utilising clause 4.6 is not warranted in this case.
If the subject site is to benefit from an increase in height and or development potential, the proper mechanism for that to occur is a planning proposal that allows the appropriate consultation with Council and the community. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, at 441: The Court must assume a development standard in a planning instrument has a purpose… Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act.
Finally, as required by Cl4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or regional planning that would warrant refusal of the variation request.
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 and the application must fail.

Is the solar access for the future residents of the building reasonable?

As a result of the joint planning conference the experts agreed that the proposal provides reasonable solar access to the proposed units within the development. The experts agree that 25 (71.4%) of the 35 units receive sufficient sunlight in midwinter.

Findings

The development, at 71% of apartments receiving 2 hours direct sunlight in midwinter, meets the requirements of Part 4A of the Apartment Design Guidelines. I accept the agreement of the planning experts that this is satisfactory. However given the findings at [78 and 91] there is no power to consent to the development.

Are the impacts that arise from the development acceptable?

Council argues that the residents of 303 Parramatta Road, Leichhardt will suffer and unreasonable loss of amenity as a result of overlooking of their private open space and due to the overbearing bulk and scale of the development.
As a result of the joint planning conference the experts agree that the proposal would not result in unreasonable overlooking on number 303 Parramatta Road Leichardt, subject to minor amendments to the architectural design. These changes include the provision of solid balustrades to units 305, 403, 503. Material appended to the joint report demonstrates that nearly all sightlines to the private open space 303 Parramatta Road are obscured because of these changes. Similarly, the experts conclude that the sight line diagrams demonstrate that planter boxes on the eastern side of the roof top terraces and the balcony to unit 302 will prevent direct sightlines to the private open space of this dwelling, subject to a planter box being included at 1.2 m wide on unit 302.
The planning experts undertook a supplementary report to address the omissions of the roof skylights from the adjoining neighbour's premises at 303 Parramatta Road that were identified during the on-site view. The planning experts conclude as follows (Exhibit 10):

Findings

As outlined at [103], in the circumstances of this proposal where the impact arises, at least in part, from a non-compliance with FSR concurrent with an impact on the significance of the heritage conservation area I find those impacts are unacceptable.

Conclusion

Given the finding that I do not accept the request to vary the floor space ratio on the site, it is not necessary to determine the contentions in relation to the suitability of the arrangements for the servicing and access to the property from Redmond Street, the use of the turntable and the functionality of the proposed manoeuvrability.
The application of the relevant planning controls identified preconditions to consent in relation to variation sought to the floor space ratio (cl 4.6) and the consideration of the impact of the development on the heritage significance of the Parramatta Road Conservation area (cl 5.10(4)). The failure the meet the preconditions, as detailed in the preceding, results in no power to approve the application.
The orders of the Court are: 1. The variation request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained; 2. The appeal is dismissed; 3. Development application DA/2016/242 for the demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground floor commercial/ retail spaces at 305-313 Parramatta Road Leichhardt is refused. 4. The exhibits are returned with the exception of Exhibits 1, A and H. ……………. 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: 08 June 2017

(1986) 130 LGERA 438

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