Chamwell Pty Limited v Strathfield Municipal Council

DATES OF HEARING: 4/12/2007, 5/12/2007 and 6/12/2007

APPLICANT Mr J. Robson, senior counsel Instructed by Ms A Spizzo of Herbert Greer and Rundle

LEGAL REPRESENTATIVES: 1ST RESPONDENT Mr S. Patterson, solicitor of Willshire Web Staunton Beatty

2ND RESPONDENT Mr C. Gough, solicitor of Storey and Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11057 of 2006 Chamwell Pty Limited v Strathfield Municipal Council

JUDGMENT Introduction 1 This appeal relates to development application No 0506/309 which is for the demolition of several existing buildings and the construction of a mixed use development comprising a supermarket and multiunit housing at Nos. 29 -35 Burlington Road and No. 32 The Crescent, Homebush (the application and the proposed development). The proposed building is described in the Statement of Environmental Effects as having a contemporary architectural style and comprises six levels above a four level basement car park for 232 vehicles that is to have access off Burlington Road.

2 The supermarket (2,232 square metres of retail floor space) has its principal frontage to and pedestrian and vehicular access from Burlington Road. It occupies the ground floor and part of level one (back of house facilities including storage offices and staff amenities) with the remainder of the building occupied by 59 residential apartments on levels 1 - 4. There are communal roof gardens at levels 2 and 3. 3 The irregular shaped site comprises Lot 11 DP 1052760, Lots 11 and 33 Section 10, DP 400 Lots B, C and D DP 391764. It has a frontage of 15 metres to The Crescent and 33 metres to Burlington Road and has an area of 3, 888 m2. It has a depth of about 122 m (between Burlington Road and The Crescent).

4 The existing buildings on the site are occupied by the Homebush Returned Services League club buildings but no longer occupied or required for these purposes. These buildings do not have any heritage significance but a significant proportion of the site fronting The Crescent is occupied by the Homebush Memorial Park that was the entry to the club buildings. The park is listed as a heritage item of local significance and is to be retained as part of the proposed development.

5 In the vicinity of the site that is located at the western edge of the Homebush commercial shopping/business area, there are residential flat buildings of two, three and four storeys in height, mixed-use buildings, shops and commercial buildings, a council car park, schools and a service station.

The second respondent 6 On 9 November 2007 Lloyd J. granted leave to Kim Louise Southwell, the owner of the IGA Homebush store in Rochester Road, Homebush and an objector to the application, to be joined as a party to the proceedings. This leave is limited to the issues of: bulk and scale; heritage; economic impacts; and design. Planning controls Strathfield Planning Scheme Ordinance 7 Apart from 35 Burlington Road that is zoned Residential 2(b), the site is mainly zoned Business 3(a) under the Strathfield Planning Scheme Ordinance (the ordinance). Multiunit housing is permissible in both of these zones and shops are permissible in the 3(a) zone. Relevantly no part of the proposed supermarket extends into the 2(b) zone where it would be prohibited.

8 Relevant to this application, cl 41 C of the LEP requires, inter alia, that consent shall not be granted on land adjoining a residential zone unless, where appropriate, proposed buildings are compatible with the height, scale, siting and character of existing buildings within the residential zone. Also any proposed building facing land in a residential zone must be designed to be compatible with existing buildings in the residential zone. Similarly cl 61GA of the LEP requires that in determining a development application for development on land adjoining land in a residential zone consideration must be given to various matters including height, scale, siting and character of existing residential development.

Strathfield Consolidated Development Control Plan 2005 9 Also applicable is the Strathfield Consolidated Development Control Plan 2005 (the DCP), particularly Part C. The relevantly identified specific objectives of Part C in section 1.2 require that new residential development is of a type, scale, height, bulk and character that is compatible with the particular streetscape characteristics of the area in which it is proposed and that residential development be attractive, functional, innovative and is of a high quality.

10 In section 2.1 the DCP requires that development be consistent with height limits illustrated in Appendix 1 and be compatible with the predominant height, bulk, scale and future character of the locality and be generally consistent with the existing streetscape character of the locality. Also, matters of overshadowing, privacy, noise, and views are to be taken into consideration. 11 Section 2.2 of the DCP deals with density, bulk and scale for the residentially zoned part of the site and adjoining land to the west and opposite in Burlington Road that is included in the 2 - 3 Storey Zone. Also applicable is the building envelope control that requires buildings to be sited within a building envelope determined by a plane projected at an angle of 45° over a site from a height of 3.5 m above natural ground level along the side and rear boundaries. This is subject to a number of matters included in associated diagrams that describe how the envelope is to be applied. These provisions also refer to the streetscape analysis in Appendix 2, particularly in relation to streetscape as well as to the need to maintain a reasonably consistent relationship between buildings allotment boundaries and adjacent development.

12 The streetscape analysis provisions in Appendix 2 provide that the maintenance and enhancement of the streetscape is of paramount importance in preserving neighbourhood character. More particularly where there is a strong relationship between developments that unify the streetscape, departures from that character particularly in terms of scale, bulk or mass need to be carefully considered to ensure that new development does not detract from the quality of the streetscape. 13 Section 2.5 deals with streetscape and building orientation and requires that residential development be generally compatible with or which improves the appearance of existing buildings and contributes positively to the future character of the street. Compatibility with the predominant character and architectural detail of existing residential development is sought.

14 Section 3.0 deals with residential development in the business zones and provides that multiunit housing in business zones will be subject to similar objectives and standards to those in Part C of the DCP. Relevantly applicable principles include the need to provide a frontage to the street that creates a continuity of existing shopping forms and the setting back of residential development to achieve a consistent facade height on the retail strip. Section 3.0 also provides that for Homebush West maximum building heights are four levels above ground.

Draft Strathfield Local Environmental Plan 2003 15 The site is also zoned Residential 2(b) and Business 3(a) under the draft Strathfield Local Environmental Plan 2003 (the draft LEP) and as with the ordinance the proposed development is permissible with development consent. It was agreed that the draft LEP was neither certain or imminent and should thus attract little weight. Previous consent 16 On 6 January 2004 the Court granted (by consent) development consent to a similar proposal (File No. 11068 of 2003) following the refusal of that application by the council in September 2003. That development comprises buildings of four and five storeys in height and contains 57 dwellings. Advertising and public submissions 17 The application was advertised in June 2006 and the council received a significant number of submissions and petitions opposing the proposed development.

18 When the hearing began on-site I heard from the following objectors: * Ms H Blake of 141 Albert Road, Strathfield * Ms C O'Callaghan of 93 Rochester Street, Homebush * Mr A Shire * Ms I Moss of 52 Loftus Crescent Homebush * Ms J. Tozer of 29 Sherwood Avenue Homebush * Ms M Hill of 47 Abbotsford Road Homebush * Mr Bishop of Arthur Street Strathfield West * Mr B Wilson of 32 Coventry Road Strathfield * Mrs T L'estrange of 2 Francis St Strathfield * Mr D Cornell of 25 Rochester St Homebush * Mr O Rozmeta of 39 Beresford Rd Strathfield * Ms B McCluskey of 57 Burlington Road Homebush 19 Matters of concern to the objectors principally relate to flooding, traffic, character and the existing Homebush Centre. The traffic concerns include the likely exacerbation of existing vehicular traffic congestion in the locality resulting from additional traffic generated by the development including delivery vehicles. Pedestrian safety especially for schoolchildren will be adversely affected Related to this aspect are concerns that the generation of dust and chemical pollutants will adversely affect residential amenity. As for the proposed building it is said that it would, by virtue of its design be out of character with the existing shopping centre. It will also be too large and would affect the heritage significance of the Homebush Memorial Park. By providing a large supermarket, it will adversely affect the commercial viability of other shops in the Homebush Centre, degrading the centre as a whole. The evidence 20 On behalf of the respondent Council, expert evidence was provided by: * Mr S. MacDonald-consulting town planner. * Mr R Dewar-consulting drainage engineer. 21 On behalf of the applicant, expert and other evidence was provided by: * Mr J. Langston-consulting drainage engineer. * Mr D McNamara-consulting town planner. * Mr R Dickson-architect and urban design consultant. * Mr A Hack-consulting land economist and town planner. * Mr R Binding-Development Manager, Coles Group Property. * Mr G. Pindar-consulting traffic engineer 22 On behalf of the second respondent expert and other evidence was provided by: * Mr A Witherby-consulting town planner. * Mr & Mrs K. Southwell-the owners of the IGA Homebush store. 23 Additional evidence and supplementary materials were provided as follows: * Mr L. Challis consulting acoustic engineer (parties single expert). * The advice of the Sydney Regional Development Advisory Committee of the Roads and Traffic Authority (the traffic committee) . * The Strathfield District Historical Society. * The joint report of Messrs Binding, Dickson, Hack, Klimpsch, Owen, McNamara and Witherby. * The original and supplementary statements of environmental effects (including an analysis of the requirements of State Environmental Planning Policy No. 65). * The Statement of Environmental Effects and the supplementary Statement of Environmental Effects (the SEE). * Mr Pindar's peer review of the traffic and parking section of the SEE . * A BASIX certificate. Council's notice of determination 24 Council's notice of determination dated 12 December 2006 reveals that the application was refused for reasons essentially comprising the following: * Whether the access to the supermarket across the 2(b) zone land is prohibited whether the proposal would have an inappropriate presentation in the streetscape and whether impacts on the existing road and pedestrian networks would be unsatisfactory. * Adverse amenity impacts on neighbours including bulk and scale loss of solar access and acoustic impacts. * Adverse impacts on the heritage significance of a heritage item on site. * Failing to meet zone objectives in relation to building height car parking and drainage. * Failing to meet the requirements of the Strathfield Consolidated Development control plan 2005-multiunit housing in relation to number of storeys, building envelope, setbacks, unit size, privacy and security, solar access, basement access and excavation. * Whether the proposal would have an adverse economic impact on the Homebush Village commercial Centre. * Various matters such as site contamination waste management stormwater drainage and site management. * Site remediation. * Compliance with the requirements of state environmental planning policy number 65-design quality of residential flat development ("SEPP 65"). The issues 25 The respondent Council's amended Statement of Issues identifies 19 issues (13 pages) and in essence these issues comprise: * Parts of the site are likely to be used for commercial purposes (that is the residential 2(b) zone portion of the site), particularly in relation to access to the supermarket. * There is no appropriate transition between the business zone and the commercial setting to the east and the residential zone and residential flat buildings to the west of the site. * Unsatisfactory urban design particularly in relation to the public interface at street level. * The proposed building would have an excessive height bulk and scale that would be particularly problematical in relation to adjacent properties. * Adverse impacts on local roads and pedestrian networks. * The entry to the loading dock car park is unsatisfactory as is the car park layout and the pedestrian ramps. * Many of the proposed apartments would have an unsatisfactory residential amenity. * The proposed development would have an adverse impact on the heritage significance of the memorial garden. * The acoustic impacts of the development have not been satisfactorily addressed, nor have matters such as waste management, stormwater drainage and flooding. A remediation action plan has not been provided. * The matters raised in the public submissions. Respondent's submissions 26 As a result of amendments to the proposal, the agreed conditions of consent and the further consideration of the application by Mr McDonald, Mr Paterson submitted on behalf of the council that none of the above issues, including the matters of concern to the objectors, were pressed by the council. It was nevertheless submitted that the court should take into consideration the objectors' concerns. Applicant's submissions 27 On behalf of the applicant Mr Robson submitted that, taking into account the existing consent for this site, significant weight should be given to the applicant's approach in response to Council's requirements and concerns and the overwhelming supporting evidence of the experts engaged by both the council and the applicant. Added to this is council's present support for the proposal. In particular, significant weight should be given to the town planning evidence of Mr McDonald who was retained by the council and who has been involved with this development for a long period of time. He prepared a lengthy, comprehensive and detailed statement of issues that have now all been addressed to his satisfaction. Also of importance are the planning controls, which Mr McDonald finds have been satisfied

28 He further submits that, based upon the expert evidence (excluding that of Mr Witherby), this is a sensitive design that is responsive to all of the planning controls and provides an appropriate and adequate amenity for the building's residents and for the neighbours in the adjacent residential buildings. The second respondent's submissions 29 On behalf of the second respondent Mr Gough submitted that whilst the proposed development is permissible with development consent it is nevertheless inappropriate mainly because it does not comply with applicable planning controls. In this regard he relies on the evidence of Mr Witherby and Mr Southwell.

30 Clauses 41C and 61GA of the LEP and various provisions of the DCP are not satisfied especially regarding the relationship of the proposed development with the residential zone including character and streetscape/urban design considerations. Of particular concern is the DCP requirement that there be a maximum height of three levels whereas the proposed development has a maximum height of five levels. This is of particular concern at the zone boundary that exists within and adjacent to the sites to the west. Whilst the building comfortably complies with the maximum floor space ratio standard in the DCP it gains no credit for this. 31 Being situated at the zone boundary the development of the site needs to take into account the nature of land uses permissible in the adjoining residential zone notwithstanding that there are no zone objectives for the residential zone. (See Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture)). Being a landmark building it will be out of place and out of character with surrounding development and inappropriate in the streetscape, notwithstanding that this is a precinct in transition. It would not be in harmony with the existing buildings in Burlington Road.

32 It is also necessary that certain matters be taken into consideration: streetscape, height bulk and scale of locality, residential character especially in the residential zone; the existing character which is generally up to three storeys of brick construction with pitched tile roofs. The materials to be used and the height, bulk and scale of the proposed building would be inappropriate in the streetscape taking into account the height, bulk and scale of almost all the existing development in the vicinity of the site. 33 More generally he submitted that all of the planning controls and their objectives should be applied together and when this is done the proposal is deficient and should not be approved (See PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 and Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712). Mr Witherby's evidence 34 In his statement of evidence Mr Witherby considered at some length the urban design questions of bulk and scale, height, density as well as compatibility with existing and likely future development in the vicinity of the site and the Burlington Road interface. He also considered: the heritage question in relation to the Homebush Memorial Park; the economic impacts on the existing Homebush Centre; and car parking and traffic. It was his opinion that all of these matters were variously problematical and concluded that there are fundamental problems with the development despite recent changes. He continues to be of the opinion that the development is contrary to planning policy and statutory considerations applying to the site and continue to raise substantial merit issues, which have not yet been resolved. Overall the site is unsuitable for the proposed development taking into account its cumulative impacts and the unsatisfactory outcome of design compromises.

35 In the joint report in addressing the urban design question Mr Witherby identifies a number of concerns: * The proposed development does not have an active frontage to Burlington Road and for this to be achieved, entry to the premises needs to be provided more directly from the public footpath. It has a poor pedestrian and visual interface particularly with the dominance of the driveway and access, contrary to the provisions of the DCP. Also there was no continuity of the existing shopping centre forms. * The proposed development is substantially out of scale with surrounding development contrary to the requirements of the DCP that require new development to be generally compatible in terms of type, height and scale. The site is a transition site between the commercial and residential zoning and the objectives and standards in the DCP for the residential zone need to be taken into account. Generally a maximum of 2-3 storeys is indicated and with the proposal being for storeys in height this is inappropriate. * The modern vernacular and visual character of the proposed building is substantially out of character with the village centre, which is dominated by strip shopping facilities of a traditional rhythm and form and established residential buildings. As a consequence it fails to respect the predominant character and architectural details of existing development as required by the DCP. Also the proposed materials to be utilised in the building would be out of character with the predominantly "face brick and tile" materials in the locality. 36 Other matters of concern to Mr Witherby comprise: o The proposed basement car parking would not be fully utilised and as a consequence the local street system and nearby car park for the accommodation of at grade parking would come under unnecessary pressure. Also vehicular access to the site and the truck waiting area was unsatisfactory in terms of interference with pedestrian movement paths. o The significant overlooking of the Homebush Memorial Park in appropriately altering its secluded nature. o The supermarket would not have a synergy with the strip shopping along Rochester Street and the shops along the northern end of that street would suffer. It should be better integrated with the existing shops by providing direct access to the laneway car park and in the longer term to The Crescent. Whilst some additional supermarket floorspace would be beneficial to the centre his concern is mainly with its design. Urban design and planning controls 37 Relevant to the urban design issue, the LEP effectively requires that the consent authority must consider and be satisfied that, where appropriate the proposed building is compatible with the height, scale and character of existing buildings within the residential zone and that there be a design compatibility at the zone interface. The DCP requires similar compatibility in new development that should be attractive, functional, innovative and of a high-quality. More particularly and relevant to the residentially zoned part of the site, in order to achieve an appropriate neighbourhood character, buildings are to have a maximum height of three storeys and be contained within a 45° building envelope. Also the predominant character and architectural detail, including materials of surrounding development are to be taken into account. In the business zone buildings are to have a maximum height of four storeys.

38 That part of the proposed development in the residential zone being three storeys in height does not exceed the three-storey limit nor does it infringe the building envelope. However the five-storey parts of the proposed development in the business zone exceed the four-storey height limit. An examination of the plans reveals that the building is articulated and modulated and, that the five-storey parts of the building (Plan Level 04), are generally set back into the midst of the site. The five-storey element will be apparent from the rear of the two adjacent apartment buildings (33-34 the Crescent and 37-39 Burlington Rd). But, other than the narrow fifth level element that is less than 6 m wide (within the site's 33 m width) and set back about 10 m from Burlington Road, it will not comprise a dominant aspect of the building in the streetscape .

39 This is to be a contemporary building that is modulated and articulated (as a result of its varying setbacks at different levels) unlike the traditional simple form, brick and tile residential flat buildings that generally exist on lands in relative close proximity to the site. The main materials proposed to be used, (apart from the framed glass balustrades and aluminium framed shopfronts) include cream and terracotta coloured precast concrete panels, copper cladding and cream-coloured face bricks.

40 As referred to above, Mr Witherby believed that the building's modern vernacular and use of materials does not respond to the predominant visual character of the area. It is too high and too bulky, notwithstanding its compliance with the floor space ratio requirement, and fails to appropriately transition from the business zone to the residential zone.

41 Whilst I understand Mr Witherby's concerns I have been persuaded by the evidence of Mr McDonald, Mr Dixon and Mr McNamara that the proposed development is sufficiently responsive to the planning controls and the existing development surrounding the site, despite its differences in scale and character.

42 Mr Dixon and Mr McNamara acknowledge and find no problem with the fact that that the building presents a new element in the overall aesthetics of the street. Taking into account its contemporary nature and its scale, Mr Dickson said that it will not detract from the current village character and will remain compatible with the streetscape. Mr McNamara was satisfied that the proposed development would be of a suitable scale in the local context and Mr McDonald now finds its bulk and scale to have been adequately addressed by measures including increased setbacks and reorientation of external openings.

43 In dealing with the existing village character Mr McNamara noted that the allowable building height and floor space ratio permitted within the zone indicated a fundamental move away from the traditional character of the existing Homebush centre that, by comparison comprises single and two-storey buildings. Mr Dickson agreed with this. In other words the planning controls point to the intent of the council to allow substantial changes to the village character and encourage redevelopment. Councils support for the proposed development lends some support for this proposition. Hence the future character of the Homebush Centre is likely to be different to what presently exists. With this in mind the overall proposed scale and built form is consistent with Council's desired future character for the area as envisaged by the planning controls.

44 In dealing with the transition between development in the two zones Mr McNamara noted that where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact (Project Venture). As for physical impacts he asserted that the proposed development is demonstrated to be acceptable in terms of overshadowing, loss of privacy, traffic generation, acoustic impact or loss of development potential. In relation to visual impacts the proposed development is consistent with (as discussed above) the desired future character of this part of the street. He also referred to the stepped form of the proposed development and the fact that, within the 2(b) zone it is restricted to three storeys in height. Also, Mr McDonald said that the building form and its setbacks address the relationship with development in the adjoining residential zone.

45 In relation to the palette of materials to be used for the proposed development Mr Dixon opined that these would not detract from the surrounding built elements along Burlington Road and The Crescent, notwithstanding that the proposed building is not predominantly face brick and tile.

46 In relation to Mr Witherby's concerns that the proposed development does not adequately address the requirement for an active street frontage Mr McDonald noted that the inclusion of the shopfront on Burlington Road together with the widening of the pedestrian access to the supermarket and the amendments to the Burlington Road footpath/median address public concerns with the design. In this regard he recommended the imposition of a condition of consent (now agreed by the applicant) requiring a clear and permanent vision for pedestrians into the supermarket. Taking also into account the site's awkward ownership/configuration in this location, I accept that the relationship between the supermarket and Burlington Road is satisfactory.

47 Plainly the proposed development in terms of its form and materials to be used exhibits differences by comparison with the existing buildings surrounding it, but taking into account the planning controls and having been persuaded by the evidence of Mr Dickson, Mr McDonald and Mr McNamara I am satisfied that its appearance in the streetscape will be sufficiently harmonious, to satisfy the planning principle in Project Venture. Similarly I accept the proposed development's assessment for its impact on neighbours and for its compliance with the requirements of the LEP and the DCP consistent with the principle in Totem Queens Park.

48 In the circumstances I am satisfied that the threshold requirement of clause 41C and the requirement of clause 61GA of the LEP are met by the proposed development and that the urban design concerns as expressed by the second respondent are not such as to require the refusal of the application.

Economic impact 49 In relation to economic impacts I note that Mrs Southwell was not concerned about economic circumstances for her supermarket as a result of the proposed development. Also, as referred to above Mr Witherby acknowledged that some additional supermarket floorspace would be beneficial to the Homebush Centre but seemed to be mainly concerned that the supermarket can and should be better integrated with the existing shops. The distance of separation from the proposed supermarket and a number of existing shops towards the corner of Rochester Street and The Crescent would not create the necessary synergy for the effective functioning of the Homebush Centre.

50 Mr Hack disagreed with Mr Witherby suggesting that the distances between the proposed supermarket and the shops in Rochester Street were not excessive and the majority of shoppers are likely to patronise both. More generally because the supermarket will "improve the offer" in the Homebush Centre any disadvantage in this regard can be justified.

51 Plainly a different design for this site that has greater connectivity (in the midst of the block as suggested by Mr Witherby) to the shops in Rochester Street would be preferable and could have avoided the disadvantage to some shops as described by Mr Witherby. But I accept that this is not presently practicable given the existing built-up nature of development and land ownership in and behind Rochester Street. On balance, accepting as I do the evidence of Mr Hack, the potential benefits are likely to exceed any adverse impacts and I have decided that economic impacts should not be determinative of the application.

Heritage 52 As for Mr Witherby's concerns that the memorial park would be adversely affected in terms of overlooking from a number of apartments in the proposed development, I do not find this to be a matter of any significant concern. Instead I agree with Mr McDonald's assessment that some overlooking is desirable in the interest of security, taking also into account the plans of management (as recommended by Mr McDonald) for the protection during construction and the ongoing maintenance and preservation of the park.

Traffic and parking 53 In relation to traffic and parking I recognize the considerable concerns of the residents that existing traffic congestion in and around the Homebush Centre might be worsened by traffic generated by this proposal, including shoppers cars and delivery vehicles. I also recognize Mr Witherby's concerns that the basement car park may not be fully utilised resulting in the alternate utilisation of private and public at grade parking.

54 However Mr Pindar effectively answers these concerns in his peer review and his oral evidence. Whilst he understood the residents' concerns he did not accept that there would be any significant traffic impacts in the locality. He reached this conclusion taking into account the likely traffic generation and the origin/destination of shoppers (60% from the south) who would attend the proposed supermarket with respect to the existing areas of traffic congestion. Additional traffic would be within the environmental capacity of this locality. As for pedestrian safety in Burlington Road, given the relatively low numbers of vehicles entering and leaving the site (in a forward direction) at peak times and the substantial sight-lines available, this is also not a matter of concern. As for the suggestion that the basement car parking may not be utilised by supermarket shoppers he pointed out that with the provision of travelators providing easy access to these undercover parking areas, they are likely to be preferred by shoppers.

55 Taking into account the expert evidence of Mr Pindar that is to be preferred over that of the residents and the applicant's agreement to all of the requirements of the traffic committee including a major contribution towards the signalisation of the intersection of Burlington Road and Rochester Street and its operations plan, I have decided that traffic and parking is not an issue that requires the refusal of the application.

Stormwater drainage condition 56 The only dispute in this matter between the applicant and the council involves a condition of consent in relation to a Sydney Water drainage easement that passes through the site. This easement is developed with a stormwater channel that is to be incorporated into the proposed development underneath the ground floor of the building.

57 Mr Patterson submitted that taking into account the oral concerns expressed by an officer of Sydney Water and in the absence of it's approval, if the Court decides to uphold the appeal and grant development consent, this should be deferred until such time as the necessary approval has been obtained.

58 Conversely, Mr Robson submitted it was unnecessary to take this approach as this matter could be satisfactorily dealt with by way of a conventional condition of consent or alternatively a deferred commencement condition. Either way the development cannot proceed until such time as the approval of Sydney Water has been obtained. As for the telephone communications with Sydney Water personnel he submitted that these should not be relied upon and that even if there were a possibility that Sydney Water might not agree with what is now proposed, the applicant is prepared to risk the consequences.

59 My concern in this regard is to ensure that in granting the consent as sought that the design of the building in the manner of accommodating the stormwater channel will be sufficient to meet the stormwater design requirements of the channel such that there is a likelihood that Sydney Water will grant it's approval. Having considered the evidence of the drainage engineers I am satisfied that the stormwater channel will be able to function appropriately and that should any works be required to maintain or reconstruct the channel this will still be reasonably possible. In the circumstances I have decided that the deferred commencement condition (as provided by the council in the draft conditions of consent) requiring the written consent of Sydney Water to be submitted before the consent comes into effect should be imposed. Conclusion 60 Finally, having considered all of the concerns of the residents and the second respondent I have nevertheless been persuaded by the evidence marshalled on behalf of the applicant and the council. I am satisfied that the proposed development meets the requirements of the planning controls including cl 41C of the LEP. The appeal is therefore upheld and deferred commencement development consent granted subject to the conditions as otherwise agreed between the parties.

      T A Bly
      Commissioner of the Court
      ljr

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