Chau v Georges River Council

The amended application

1. Through a Notice of Motion dated 17 March 2023, the Court granted leave on 24 March 2023 for the Applicant to amend the development application (amended application) through amended plans and documentation (Ex E), with the consent of the Respondent. As summarised from the amended Statement of Facts and Contentions (Ex 1), the amended application comprised:

• Demolition of the single storey commercial building;
• Construction of a seven-storey building containing 16 boarding rooms plus a room for a manager, comprising seven single rooms and nine double rooms;
• Two office tenancies, totalling 198.9m2; and
• Two levels of basement parking with: º 3 car spaces including a double car stacker and car share space with two turntables and car lift º 5 motor bike spaces º 5 bicycle spaces º Storage, waste room and ancillary areas.

1. Council filed an amended Statement of Facts and Contentions (ASOFAC) on 10 May 2023. Whilst there were substantial changes to the SOFAC, in essence the contention relating to non-residential FSR was resolved and the remaining contentions pressed.
2. At the commencement of the hearing on 24 July 2023, the Applicant, with the consent of the Respondent, sought and was granted leave to amend the amended development application (the proposed development) (Exhibits A, B and F). The amendments comprised:

• Modification to the proposed basement car park to include an additional basement level (basement three), removal of the car stackers and turntables, addition of laundry facilities and reconfiguration of car spaces, services and waste areas. As a result, the proposed car parking includes two office car spaces, one car share space for the boarding house, four motorcycle spaces and five bicycle spaces;
• Addition of privacy screens and skylight details along the northern elevation, including a skylight to the ground floor office premises;
• Minor internal layout changes within the existing footprints to the boarding rooms, primarily reconfiguration of the kitchenette, bed and study locations on levels 1 and 2; and
• Minor changes to the level 6 communal open space areas, including a BBQ area shown in the communal outdoor area and additional seating arrangements shown in the indoor communal area.

The site and locality

1. The site is known as 42 Treacy Street, Hurstville, legally known as Lot C, DP 441248. It is a rectangular shaped site with an area of approximately 194m2. Whilst there was some disagreement about the site area within the ASOFAC, the planners agree in the planning/urban design joint expert report (planning/urban design JER) at [123]-[126] that the site area is 194 m2. The frontage to Treacy Street and rear boundary is 12.9m. The eastern side boundary is 16.27m and the western boundary is 15.7m. Relevantly, there is no frontage to Forest Road.
2. The site is shown in red below, reproduced from the ASOFAC (Ex 1):
3. Development along Treacy Street includes one-two storey commercial / shop top developments and Council's hardstand car park. There are several heritage items in the block, including 183B Forest Road, 173A Forest Road (directly adjoining to the east), 167-169 Forest Road and 143 Forest Road.
4. Further down Treacy Street but visually prominent are a number of shop top / residential developments that exceed the Georges River Local Environmental Plan 2021 (GRLEP) height of building controls. The Court was advised at the site view that some of these buildings were former Part 3A of the EPA Act approvals.
5. The site is located within the Hurstville Town Centre in close proximity to Hurstville train station (approximately 300m walking distance).

Public Submissions

1. No submissions were received during the first notification period from 2 December 2021 to 16 December 2021.
2. The amended application was notified from 11 April 2023 to 26 April 2023. One submission was received from 177 Forest Road, Hurstville, which is located directly behind the site (Ex 2, Folio 10). The submission raised a concern about the proposal's potential impacts on the structural integrity of their property.

The onsite view

1. The hearing commenced on-site. At the on-site viewing, there were no oral submissions from objectors. The Court's attention was drawn to the surrounding buildings, heritage items, numerous garage / vehicular access points along Treacy Street, one way nature of Treacy Street and Council's car park adjacent to the subject site.

Expert Evidence

1. In accordance with its usual practice, the Court directed experts in planning, urban design, traffic and waste to confer in relation to nominated contentions prior to the commencement of the proceedings.
2. Expert evidence on the waste issues was submitted in a joint expert report by Mr Tony Robb for the Applicant and James Cosgrove for the Respondent (Ex 3).
3. Expert evidence for the planning and urban design issues was submitted in a joint expert report by Mr Tony Robb for the Applicant and Ms Heather Warton and Mr Alan Cadogan for the Respondent (Ex 4).
4. Expert evidence for the traffic issues was submitted in a joint expert report by Mr Rob Varga for the Applicant and Mr Matthew McCarthy for the Respondent (Ex 5).
5. Oral evidence by the experts was provided during the hearing.

Issues

1. The Respondent's remaining contentions from the ASOFAC (Ex 1) can be summarised as follows:

• Contention 1 - Building height breach
• Contention 3 - Overdevelopment of a small, undersized site
• Contention 4 - Excessive bulk and scale, incompatibility with the character of the local area and design excellence
• Contention 5 - Poor internal amenity
• Contention 6 - Non-compliant access and carparking
• Contentions 7-9 - Inadequate information

1. Contention 2 regarding FSR was not pressed on the basis of the planning expert's agreement within the planning/urban design JER (Ex 4).

The Planning Framework

1. In accordance with the ASOFAC, the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development:

• Environmental Planning and Assessment Act 1979 (EPA Act)
• Environmental Planning and Assessment Regulation 2000 (EPA Regulation)
• State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)
• State Environmental Planning Policy (Biodiversity and Conservation) 2021
• State Environmental Planning Policy (Housing) 2021 (SEPP Housing)
• NSW Department of Planning and Environment Apartment Design Guide 2015 (ADG)
• State Environmental Planning Policy (Resilience and Hazards) 2021
• State Environmental Planning Policy (Transport and Infrastructure) 2021
• Georges River Local Environmental Plan 2021 (GRLEP)
• Georges River Development Control Plan 2021 (GRDCP)
• Hurstville Development Control Plan 2 - Amendment No. 12 (HDCP)

Height of Buildings Development Standard

1. The Respondent pressed its contention that the proposed height breach remained an issue that would warrant refusal. These reasons are summarised as follows (Exs 1 and 4):

• The proposal contains insufficient floor to floor heights, which would result in a higher overall development than the current proposed breach (floor to floor heights of 4.5m on the ground floor and 3m thereafter). On this basis, a seven-storey building cannot be accommodated on the site;
• The definition of building height in the GRLEP includes the lift overrun;
• The proposal is inconsistent with the height objectives of the HDCP;
• Overall non-compliances with SEPP ARH and the HDCP with resultant environmental impacts; and
• The cl 4.6 written request is inadequate.

1. The GRLEP 2021 sets a height of buildings development standard of 23m. The proposed maximum building height is 23.4m as measured to the top of the lift overrun. The proposed breach is 400mm.
2. The proposal is accompanied by an amended written request pursuant to cl 4.6 of the GRLEP, prepared by Mr Robb dated 28 May 2023 (Ex 4) on behalf of the Applicant (written request).
3. Clause 4.6(2) permits the grant of development consent despite the contravention of development standards imposed by the GRLEP that are not expressly excluded. Height of buildings is not excluded.
4. In order to grant consent, cl 4.6(4) contains two preconditions that must be satisfied for a proposal that seeks flexibility of eligible development standards (Preston CJ Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] and [14]) (Initial Action). Clause 4.6(4) states as follows: (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained.
5. Within Initial Action, Preston CJ outlined a detailed approach to the consideration of a written request pursuant to cl 4.6 (at [7] to [29]), which I adopt.
6. Of the first precondition, in accordance with cl 4.6(4)(a)(i) of GRLEP, the Court on appeal, is required to be satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), which states as follows: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.
7. Of the second precondition, in accordance with cl 4.6(4)(a)(ii) of the GRLEP, the Court on appeal, must be satisfied that the development will be in the public interest because it is consistent with the objectives of the development standard and zone.
8. With respect to cl 4.6(2), during a court proceeding the concurrence of the Secretary is not required and the Court may determine to grant development consent pursuant to s 39(6)(a) of the Land and Environment Court Act 1979 (LEC Act). Notwithstanding, the matters within cl 4.6(5) should still be considered (Initial Action at [29]).

The Applicant's written request - height of building standard

1. Clause 4.6(4)(a)(i) requires the consent authority, or the Court on appeal, to be satisfied that the Applicant's written request to contravene the development standard has adequately addressed the matters that are required within cl 4.6(3)(a) and (b).
2. CJ Preston set out in Initial Action at [25]: "The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]."

Compliance with the development standard is unreasonable or unnecessary

1. With respect to cl 4.6(3)(a), that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, the written request provides the following summarised reasoning at pp 4-6:

• Following Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), it is both unreasonable and unnecessary for the proposal to strictly comply with the height development standard as the objectives are achieved notwithstanding the non-compliance. The proposed variation is consistent with the objectives of cl 4.3 of GRLEP as follows: º Regarding cl 4.3, objective (a), the minor non-compliance in height of 400mm is for the lift shaft and has no significant bearing on the height, bulk and scale of the existing and desired future character, noting the previous DA approval on the site and recent development in the area. The locality is currently in transition. º Regarding cl 4.3, objective (b), the minor non-compliance and its location away from the street and open space minimises potential impacts of overshadowing, visual impact, disruption of views and loss of privacy to adjoining properties and open space areas. º Regarding cl 4.3, objective (c), the minor non-compliance has negligible impact on the adjoining heritage item due to its location away from the street, elevated nature of the variation, juxtaposition to the single storey heritage item and absence of any visual connection between buildings.

1. The objectives of cl 4.3 of GRLEP are: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the impact of overshadowing, visual impact, disruption of views and loss of privacy on adjoining properties and open space areas, (c) to ensure an appropriate height transition between new buildings and - (i) adjoining land uses, or (ii) heritage items, heritage conservation areas or Aboriginal places of heritage significance.
2. Ms Warton, planning expert for the Respondent, says that the proposed development is not consistent with objectives cl 4.3(1) (a) and (c)(i). Ms Warton relies on the streetscape perspective (Ex 4, at [90]) to support the position that the proposed development is not compatible with the existing character of the locality (cl 4.3(1)(a)), which shows a sharp contrast between the existing one-two storey developments and the proposed seven-storey development.
3. Ms Warton says that the breach numerically is 400mm, but that the proposed development effectively proposes an additional storey, which is compounded by the unbroken street wall. The bulk and scale are therefore not compatible with the character of the area and would set an undesirable precedent.
4. Ms Warton considers that objective (b) of the building height development standard is met, with respect to the minimal impacts to overshadowing and loss of privacy. Ms Warton notes these merit issues are raised in separate contentions about the proposed development.
5. Ms Warton says that objective (c) is not met in that the proposal does not establish an appropriate height transition to adjoining land uses that are of a single and two storey scale. Ms Warton agrees that the adjoining heritage item is not impacted by the proposed 400mm height breach.
6. Ms Warton also says that the existing approval on the site is irrelevant.

Consideration

1. With respect to cl 4.6(3)(a), I find that that written request demonstrates that compliance with the development standard is unreasonable/unnecessary through achieving the objectives of the development standard for the reasons set out below.
2. Clause 4.3(1)(a) seeks to ensure compatibility with the height, bulk and scale of the existing and desired future character of the locality. 'Existing character' and 'desired future character' are not defined in the GRLEP, and I consider that defining a locality's character includes consideration of the development standards as well as contextual elements.
3. In the instance of the subject site, I accept the evidence of the planners that the existing character is predominantly one-two storey development with some heritage items within the block. Within the visual catchment outside of the subject site's block towards the east are buildings approximately 9-15 storeys in height. I note that the Court was orally advised that the tallest buildings along the rail line do not conform with the GRLEP height and were Part 3A EPA Act approvals.
4. The height development standard is 23m for the subject site and adjoining properties within the Treacy Street block. With consideration of the existing one-two storey character of the block, I consider that the height of any development consistent with the height standard will likely create a stark contrast with the existing character of the area.
5. Dealing with the proposed breach as required by cl 4.6(3)(a) of GRLEP, I accept the reasons within Mr Robb's written request that the breach does not impact on the height, bulk or scale of an area that is in transition, albeit a slow transition. In considering if the 400mm height breach is compatible with the existing and desired future character of the locality, in this town centre location I give more weight to the future character sought for the locality. There is insufficient evidence to accept that the proposal is an additional storey. The evidence in relation to the street wall and design response to the existing character is relevant for other contentions raised by the Respondent. I accept that the 400mm breach from the lift overrun would not be incompatible with the height, bulk and scale of the future character of the locality.
6. I note that whilst the existing / previous development consent can be a consideration, I have placed little weight on its approval under a different LEP in my consideration of the written request.
7. I accept the written request and agreed evidence of the planners that the proposal minimises the proposed building height breach's impacts in respect to amenity impacts in cl 4.3(1)(b). I note here that I accept that in relation to the 400mm height breach only.
8. With respect to cl 4.3(1)(c), I am satisfied that the written request has demonstrated that the 400mm height breach will have negligible impact on the adjoining uses and heritage significance of the adjoining heritage item given the breach's elevated, central location on the proposed development. I find that the proposed breach for the lift overrun is not antipathetic to the objectives of the height of building development standard and satisfies cl 4.6(3)(a).

Sufficient environmental planning grounds to justify contravening the development standard

1. Clause 4.6(3)(b) of GRLEP, requires that the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. These must be sufficiently justified environmental planning grounds in relation to the contravening element of the development standard (not the development as a whole) (Initial Action [23]-[25]).
2. The written request provides the following summarised reasoning at pp 6-9:

• The non-compliant portion is not visible from the street;
• The non-compliance is minor (400mm or 1.7%);
• The main building, roof and parapets comply with the development standard;
• Compliance would result in the removal of a commercial or residential level, resulting in removal of employment or affordable housing opportunities and therefore inconsistent with the objects of the EPA Act to promote 'the orderly and economic use of the land' and 'the delivery and maintenance of affordable housing';
• The non-compliance does not create any significant impacts on neighbouring properties or the public domain;
• The height of the proposed development is consistent with the number of storeys guideline within section 5.3.3 of HDCP, being seven storeys within a 23m area. The floor to floor and floor to ceiling levels are consistent with section 5.3.3 of the HDCP except for the proposed variation to the first-floor control, which is acceptable; and
• A previous consent for the site (DA2015/0299) was approved by the Respondent on 18 August 2023 for a taller building of 25.4m or 10.4% for similar reasons.

1. Mr Robb says that the proposed building height is not 'understated' as outlined in the Respondent's ASOFAC. He says that the proposed development is consistent with HDCP section 5.3.3 for all floor to floor / floor to ceiling heights except level 1. Mr Robb also states that the HDCP refers to 'retail' uses seeking 4.5m, whilst 'commercial' uses require 3.6m and therefore, as a ground floor commercial use is proposed, the ground floor level could be reduced. Consequently, the proposed development seeks flexibility of a DCP provision.
2. Mr Robb also says within the planning/urban design JER and written request that each clause 4.6 written request needs to be considered on the merits of their own case.
3. Ms Warton says that there are no sufficient environmental planning grounds put forward within the written request and says that the floor to floor heights are understated with subsequent impacts on the overall height and amenity.
4. Ms Warton relies on HDCP section 5.3.3 Building Height objective (vi), which seeks to ensure that adequate floor to ceiling heights will be provided to encourage adaptability and flexibility for future uses. The ADG is referenced as a guide to acceptable floor to floor heights in relation to levels 2-6, as the ADG provides a different residential floor to floor of 3.1m in contrast to the HDCP's 3m guide. Mr Warton says adopting this would result in a six-storey building instead of a seven-storey building.
5. Ms Warton says that the justification relating to suggested impacts on reduced employment and affordable housing opportunities are inadequate and relate to the development as a whole, not the breach. Ms Warton says that the existing development consent previously issued is not sufficient justification and that the two developments and their circumstances are different.
6. In oral evidence, Ms Warton agreed that the contravention itself as shown on the architectural plans is minimal.
7. In closing submissions, Mr Pickles SC submits that notwithstanding the floor to ceiling heights being sought by Ms Warton's evidence, that is not the application in front of the Court. Mr Pickles submits that the floor to ceiling heights (Transcript, 25 July 2023, pp 67-80 (50-10)): "…don't present themselves as a relevant consideration for the purposes of an exception to a development standard. The clause itself, cl 4.6, requires that you consider for a development that contravenes a development standard, the consent authority has to be satisfied that the written request has adequately addressed the matters required by subclause (3). So the written request is the written request you have before you, not some other hypothetical written request…".
8. Mr Fan submits that the disagreement of the experts is in relation to sufficient environmental grounds to justify the breach. Mr Fan submits that the written request relies on the breach being barely perceptible, and that is not sufficient justification in the circumstances.
9. Mr Fan submits that with consideration of the evidence regarding the failure to provide sufficient floor to ceiling heights, that the Court should not accept from the evidence that there are sufficient environmental planning grounds. Further, Mr Fan submits that the economic factors discussed within the planning/urban design JER would still be available if the appropriate floor to ceiling heights were provided.

Consideration

1. I accept Mr Pickles' submissions that the height as proposed by the applicant and the accompanying written request are the relevant considerations in addressing the matters within cl 4.6(3) of GRLEP.
2. Clause 4.6(3)(b) requires that the written request focus on the contravention of the development standard in its demonstration of sufficient planning grounds. I find that the Respondent's evidence generally focuses on the development as a whole and that the evidence relating to floor to floor/ceiling heights and amenity is more relevant to other contentions. On the evidence, I am not able to accept that the height breach extends to an additional storey.
3. I accept Mr Robb's justification in the written request that in the circumstances of this proposal, the contravention of the height of building development has sufficient environmental planning grounds due to the lack of environmental impacts, including overshadowing, minimised visual presence, and setback location on the roof. I accept Mr Pickles' submission that an absence of adverse environmental impacts can be a sufficient environmental planning ground.
4. I do not accept the justification put forward within the written request relating to the previous development consent and that removal of a floor would result in reduced employment or affordable housing opportunities (as this could be true of any development seeking to breach the height of buildings development standard). I am satisfied as to the other environmental grounds advanced within the written request as sufficient justification to satisfy 4.6(3)(b) of GRLEP.
5. On the basis of the above, I am satisfied that the written request has adequately addressed the matters of 4.6(3) and therefore 4.6(4)(a)(i) of GRLEP.

Is the proposed development in the public interest because it is consistent with the objectives of the development standard and zone?

1. Clause 4.6(4)(a)(ii) requires that the consent authority, or the Court on appeal, must be satisfied that: (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and…
2. Preston CJ set out in Initial Action at [26]-[27]: "The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii)."
3. With respect to consideration of the objectives of the zone, the planners agreed that the proposed development was consistent with the objectives of the zone. This was on the basis of the generic nature of the objectives that seek to provide compatible land uses within a commercial and residential context. I note that the planners considered the objectives of the former B4 Mixed Use zone objectives.
4. As addressed further above, the planners differ on the proposed development's consistency with the objectives of the development standard.

Consideration

1. With respect to consideration of the zone objectives, the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 commenced on 30 November 2022 and repealed business and industrial zones on 26 April 2023 with new business and industrial zones. The Respondent's bundle of documents (Ex 2) stipulates that the zoning for the subject site under GRLEP is now MU1 Mixed Use.
2. I accept the evidence of the planners and have considered the objectives of the now MU1 Mixed Use zone. I am satisfied that the proposed breach for the lift overrun is not inconsistent with the broad range of objectives about uses, transport, infrastructure and public spaces. I find that the 400mm height breach of the proposed development is not inconsistent with the objectives of the MU1 Mixed Use zone.
3. For the reasons I have set out at [42]-[49], I accept Mr Robb's evidence that the proposed height breach of 400mm for the lift overrun is consistent with the objectives of the height of buildings development standard.
4. On this basis, I am directly satisfied that for the purposes of the proposed height breach, the breach is in the public interest in that it is consistent with the objectives of the zone and development standard.
5. Clause 4.6 (4)(b) of GRLEP requires the concurrence of the Planning Secretary be obtained. In accordance with cl 64 of the EPA Regulation, the Secretary has provided assumed concurrence of certain exceptions to development standards. On appeal, the Court is able to exercise that concurrence. I have considered the provisions and am satisfied that the proposed breach would not cause any concerns relating to the matters set out within cl 4.6(5).
6. Accordingly, I am satisfied that the written request and proposed contravention to the height development standard is adequately justified in accordance with the provisions set out in cl 4.6 of the GRLEP.

State Environmental Planning Policy (Housing) 2021

1. The development application was lodged on 8 November 2021, prior to the commencement of the Housing SEPP on 26 November 2021.
2. Pursuant to the Housing SEPP, the proposed development would be considered as 'co-living housing'. Part 3 sets out controls for co-living housing with relevantly different controls such as minimum site area and building separation.
3. Both parties agree that the Housing SEPP does not apply to the proposed development in accordance with s 4.15(1)(a) of the EPA Act, as it is saved pursuant to Schedule 7A Savings and transitional provisions, which states as follows: 2 General savings provision (1) This Policy does not apply to the following matters - (a) a development application made, but not yet determined, on or before the commencement date,
4. I am satisfied that as agreed by the parties, the provisions of State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH) continue to apply.
5. In dispute between the parties is the weight to be afforded to the Housing SEPP.
6. Mr Pickles SC submits that the savings provision of the Housing SEPP is different to the savings provision considered by the Court previously under Emag Apartments Pty Ltd v Inner West Council [2022] NSWLEC 1042 and Tamvakeras v Inner West Council [2022] NSWLEC 1140 (Tamvakeras). Mr Pickles SC submits that the Housing SEPP expressly states that it does not apply and there is no wording within the provision to treat it as if it was a draft instrument, as considered by Dickson C at [32] of Fusion Developments v Randwick City Council [2022] NSWLEC 1255 (Fushion). Turning to s 4.15 of the EPA Act, the Housing SEPP stipulates it is not to be considered pursuant s 4.15(1)(a)(i) and it is not a proposed instrument pursuant to s 4.15(1)(a)(ii).
7. Mr Fan also relies on the decisions in Fusion at [34] and Tamvakeras at [38]. Mr Fan agrees that the Court should not give determinative weight to the Housing SEPP but submits that consistent with Tamvakeras at [38] and Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Terrace Holdings) the Housing SEPP is certain and imminent, and it would be in the public interest for it to be considered.
8. I accept Mr Pickles' submissions that consideration of the Housing SEPP is precluded from consideration under s 4.15(1)(a)(i) and (ii) as an in force instrument or proposed instrument. As expressed within s 2(1), the Housing SEPP "does not apply" to the subject development application as it was made and not determined before the commencement date. The submissions made, which I accept, are consistent with Robson J decision in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [20].

Design excellence

1. The Respondent maintains through Contention 4 that cl 6.10 - Design excellence of the GRLEP has not been met. Clause 6.10(4) is a precondition to the grant of consent and contains provisions that the Court must consider and have regard to.
2. Clause 6.10 Design excellence states as follows: 6.10 Design excellence (1) The objective of this clause is to deliver the highest standard of sustainable architecture and urban design. (2) This clause applies to development on land referred to in subclause (3) involving - (a) the erection of a new building, or … (3) This clause applies to development on the following land - … (b) land in the following zones if the building concerned is 3 or more storeys or has a height of 12 metres or greater above ground level (existing), or both, not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking - … (v) Zone MU1 Mixed Use. … (4) Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. (5) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) how the development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of pedestrian networks, (ix) the impact on, and proposed improvements to, the public domain, (x) achieving appropriate interfaces at ground level between the building and the public domain, (xi) excellence and integration of landscape design, (xii) the provision of communal spaces and meeting places, (xiii) the provision of public art in the public domain, (xiv) the provision of on-site integrated waste and recycling infrastructure, (xv) the promotion of safety through the application of the principles of crime prevention through environmental design.
3. Preston CJ, in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga) at [70] - [74] details that the consent authority, or the Court on appeal, is required to have regard to each provision within the framework of cl 6.10 (5) in deciding whether a development exhibits design excellence. I note that these matters are mandatory but not exhaustive, Toga at [95]-[97], and that these matters, to be considered cumulatively, determine whether the proposed development exhibits design excellence (Dickson C in Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 at [85]).
4. Mr Fan submits that these matters include consideration of the development as a whole, being both the external and internal building components as per Duggan J in The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23 (Emag) at [49] and [51].
5. Mr Pickles SC submits that the design excellence clause requires the consent authority to have regard to certain matters. The clause does not mandate a certain outcome in any particular way, but for the consent authority to have regard to how the proposed development does so. Further, the clause requires that regard must be had to the building type. Mr Pickles submits, as an example, that the amenity afforded to a dwelling house should not be applied to a boarding house in order to achieve design excellence.
6. The experts addressed the provisions of cl 6.10 of GRLEP within the planning/urban design JER and oral evidence. The experts agree that cl 6.10(5)(c) and (5)(d)(xiv) are not in contention. However, the majority of the design excellence clause provisions are in dispute.
7. The determinative evidence in my consideration of cl 6.10 of GRLEP has been grouped under the components of 'massing and street wall', 'massing and amenity' and 'public domain'.

Massing and Street Wall

1. The experts disagree on the proposed development's massing and street wall design and its response to the surrounding context.
2. With respect to cl 6.10(5)(a) and (5)(d)(iii)(v)(vi), Mr Cadogan says that the proposed street wall height, which is proposed at the same height as the LEP height limit, has not sufficiently responded to the lower rise built forms and heritage items of 1-3 storeys already forming the streetscape. He says that the existing development and heritage items form a low-rise datum line within the streetscape as a reference to inform the design of an appropriate street wall height for the block.
3. Mr Cadogan expresses the following views at [205] of the planning/urban design JER: "I disagree with Mr Robb that the street wall expression of the proposed development should be at the maximum LEP height, taking its cues from the opposite side of the street, because this fails to respond adequately to the existing context on the block in which it is situated. This block has key datum points established by heritage items that as such are likely to be retained into the future. The proposal responds in the most minimal manner to the existing low rise street wall with a colour change in the brickwork. This is not in my view sufficient to adequately respond the fine grain that exists in the block and to lower rise forms already forming the streetscape. I also note that the colour change to the ground level brickwork and level 1 balustrades is not shown in the Amended Drawings at Attachment B so it is unclear if the applicant still proposes this or has abandoned even this minor acknowledgement of street wall. I do not support the loss of even this most minimal of references to lower rise streetscape forms."
4. As this is the first to be developed in the block, Mr Cadogan argues that the design needs to establish a well-designed and sensitive response to surrounding low scale street walls.
5. With respect to cl 6.10(5)(a) and (5)(d)(iii),(v) and (vi), Mr Robb says that the proposed building envelope complies with the GRLEP and HDCP. Mr Robb says that there are no street wall requirements for the site and that a street wall reference to adjoining heritage items should not be adopted.
6. Mr Robb says that the proposed development's facade has been designed to differentiate the lower from the upper levels by reference to the existing two storey character. This has been achieved through providing a darker base with dark coloured brick, solid brick balustrade to the first-floor balcony, open balustrade balcony design thereafter and red brick vertical modulating elements for the remainder of the façade. Mr Robb says that the street wall height does not have an adverse impact on the neighbouring heritage item, which will not compromise views of the heritage items parapet as required by the NSW State Heritage Register's heritage significance statement.
7. The following is an extract from the planners report at pp 236 of the relationship between the existing development and proposed design:
8. With respect to cll 6.10(5)(a) and 6.10(5)(d)(iii)(v)(vi), I accept Mr Cadogan's evidence that the proposed development's massing has not adequately addressed the existing streetscape context of 1-3 storeys and heritage items. As demonstrated in the diagram at [97] and from my observations at the on site view, I accept that the proposed design does not have a relationship with its context and presents large blank side elevations that do not reflect a high standard of architectural design or detailing and would detract from the streetscape.
9. There is no numerical street wall height control applying to the site. However, I do not accept the evidence that a street wall or similar modulating element is not required in the context of existing development and heritage items in this section of Treacy Street. The framework within the design excellence clause requires a different consideration than the numerical compliance against development standards or development control plans. Within the framework of cl 6.10, I accept Mr Cadogan's evidence that a street wall should be further expressed with reference to the streetscape and heritage items and that the proposed development does not achieve this.
10. I also accept that the design has been further compromised by the final amended plans before the Court which reduce the base level articulation to primarily the ground floor, with some elements on the first and second floor balustrades.
11. I find that the proposed development has not adequately addressed 6.10(5)(d)(iii), (v) and (vi).
12. I note that the consideration of heritage, massing, character and streetscape impacts within the design excellence clause is in relation to the development as a whole, which is a different consideration to the proposed 400mm height breach that must be satisfied through cl 4.6 discussed at [24]-[75].
13. In accepting the evidence about the inadequate massing and street wall elements, I find that the proposed development does not achieve a high standard of architectural design and detailing appropriate to the mixed-use boarding house building type and location within the strategic centre of Hurstville Town Centre (cl 6.10(5)(a)).

Massing and Amenity

1. With respect to cl 6.10(5)(d)(i), (iv), (v) and (vii) Mr Cadogan says that the site is too small for the proposed development, which has resulted in a compromised built form design. Mr Cadogan says that the narrowness of the street frontage has constrained the configuration of the basement, which in turn has compromised the design of the overall floor layout, lifts and services locations, rear setbacks, ground floor activation and internal amenity.
2. Mr Cadogan says that the site has not anticipated the form of future development on adjoining sites and is a fundamental flaw of the design as summarised below:

• The proposed rear setbacks are inadequate at 3.36m and 3.397m. Whilst the ADG does not apply to the proposal, the 12m separation distance is an appropriate guide for shared building separation with adjoining sites for visual privacy and amenity;
• The proposed rear setback would lead to an inequitable sharing of visual privacy with a future shop top development to the north. Mr Cadogan disagrees that the proposed development should be designed in accordance with an 'existing building' situation as shown in Figure 3F-3 of the ADG, and that the proposed rear setback is a compromised design;
• The likely built form for the redevelopment of the rear adjoining sites, given the lower height limit along Forest Road, will concentrate the massing of development to the centre and south of the sites. In oral evidence, Mr Cadogan did not agree that a U-shaped building or two built forms facing the street with a central break could be accommodated on the adjoining 40m deep sites. When considering the ADG requirements and feasibility, he says that this would likely result in unviable 14m building depths and multiple lift cores;
• In the event of site consolidation, the northern (rear) site will likely not need to rely on a central area with the subject site and may result in a blank rear elevation with a similar rear setback and nil side setbacks. This would create a deep light well of up to 15m deep for the proposed development's boarding rooms with resultant low levels of daylight, reduced outlook, increased acoustic impacts and increased reliance on artificial lighting and non-natural ventilation;
• The visual privacy, outlook and sunlight access is further compromised by the use of vertical louvered privacy screens to some rooms, with residents of those rooms feeling like they are behind bars; and
• The ground floor commercial space lacks amenity as a result of the site's size, its deep setback from the frontage behind the lobby and lack of windows.

1. With respect to 6.10(5)(d)(i), (iv), (v) and (vii) Mr Robb says that notwithstanding the constrained nature of the site, the proposed development reflects the emerging character of the area, is appropriate for its context and complies with the relevant built form controls except for the lift overrun. Mr Robb's evidence is summarised below:

• There are no rear setback or building separation requirements applicable to the proposed development. The non-compliance with the DCP site area and frontage controls do not result in excessive scale or massing, particularly when surrounding sites are eventually redeveloped;
• Objective 3F-1 of the ADG is not a setback control but a means for mitigating privacy impacts through physical separation of buildings, which is to be applied flexibly as shown in Objective 3F-3. Future development on the rear lot could have a building separation of less than required due to the absence of significant privacy impacts;
• The possible redevelopment scenarios within the planning/urban design JER show development beyond the applicable FSR and below the minimum frontage. A more conceivable development scenario would be a built form massed towards the street with a central separation area, which would not enclose the rear setback area of the proposed development and continue to allow solar access to the proposed development;
• The proposed rear setback is acceptable and does not create any overshadowing or privacy impacts. The placement of windows at the rear have been designed so that they are high level windows for some rooms. Privacy louvres have been placed in a manner that direct day light and provide natural ventilation to the rooms should redevelopment occur at adjoining sites; and
• The amenity that will be provided is commensurate with the development type, being a boarding house. There are no provisions in SEPP ARH or the GRDCP that require direct solar access and cross ventilation to boarding rooms.

1. The Applicant says that with respect to the ground floor area, there are no requirements for natural light for office or commercial spaces and many commercial spaces have no windows. Further, the proposed first floor office has the benefit of a balcony and window facing the street.
2. From the evidence and my observations, the subject site is constrained by its size, frontage, unique subdivision pattern and surrounding context. I accept that the planning controls seek a change in character. However, the design of a development needs to respond to a site's opportunities and constraints through consideration of appropriate massing and likely environmental impacts on the proposed development and neighbouring sites.
3. With respect to cl 6.10(5)(d)(i), (iv), (v) and (vii), I accept Mr Cadogan's evidence that the small sized site and proposed rear setback between 3.36m and 3.397m does not adequately consider its relationship with neighbouring sites. I accept Mr Cadogan's evidence on the potential built form of future redevelopment. I also accept that redevelopment of the adjoining site to the north will be inequitably burdened with sharing the visual privacy separation within their site and will result in overall inadequate amenity through poor outlook and limited sunlight outcomes for the north facing boarding rooms, particularly at the lower levels and the managers room. I accept that the amenity will be further diminished by the proposed privacy louvres.
4. I do not accept that the likely adverse amenity impacts resulting from foreseeable future adjoining buildings is reasonable for a boarding house development that is subject to a design excellence clause within a town centre. I do not accept the evidence that compliance with other environmental planning instruments is sufficient to satisfy cl 6.10, which would leave it with no work to do.
5. The GRLEP requires that the subject site provide a minimum amount of non-residential floor space. How that is arranged on the site and its response to the site's constraints and opportunities is a function of design quality. In this instance, the small site size and site constraints have led to the proposed ground floor office tenancy being restricted to receiving no natural light or ventilation (outside of a skylight), no direct public domain access except through the lobby and little activation between the building and the public domain. Whilst I agree that not all commercial spaces contain windows and natural ventilation, within the realm of the GRLEP design excellence clause I prefer the evidence of the Respondent.
6. I note that the consideration of the massing, visual impacts and environmental impacts to the proposed development and adjoining properties within the design excellence clause is in relation to the development as a whole, which is a different consideration to the 400mm height breach that must be satisfied through cl 4.6 at [24]-[75].
7. I find that the proposed development has not adequately addressed cl 6.10(5)(d)(i), (iv), (v) and (vii).

Public Domain and Ground Floor Interface

1. With respect to cl 6.10(5)(b) and (5)(d)(x), Mr Cadogan expressed the following views regarding the public domain and the ground floor interface:

• The consequence of the small frontage is that the majority of the ground floor is devoted to inactive uses (fire booster, vehicle entry, fire egress) and a minimally sized building entry. The result of which is that none of the frontage is regularly inhabited;
• A 20m frontage, as required by HDCP section 5.3.1(a) would reasonably accommodate a further 8m of activating uses, such as commercial or retail along the building frontage. The result would be better activation of the streetscape and satisfaction of the Crime Prevention Through Environmental Design principles;
• In oral evidence, a development should achieve around 50% activation with the minimum frontage. The proposed development, at best, provides around 16%. Residential lobbies can be considered as activation, at the very lowest end of the scale. The window above the fire hydrant does not provide any street activation;
• The HDCP nominates Treacy Street as a 'second order' street. An active use in this location doesn't necessarily need to be retail and commercial is acceptable. However in this development, the residential lobby is the only activating element on the frontage; and
• If the same ground floor design treatment with minimal activity was applied along Treacy Street, the overall result would be a streetscape with minimal activity and poor levels of public safety.

1. With respect to cl 6.10(5)(b) and (5)(d)(x), Mr Robb expressed the following views regarding the public domain and the ground floor interface, as summarised below:

• The proposed design will not impact on the public domain and new paving in front of the site could be accommodated through conditions of consent;
• The proposed building will bring more activity to this 'dead' part of the centre in the evening and contributes to the public domain through an awning to shelter pedestrians;
• The amount of activation along the frontage has been understated. The lobby elements comprise 36% of the street frontage and provide passive surveillance. The commercial and residential lobby will be utilised at all hours as active spaces, more than a large commercial or office use that would be closed at night and offering no meaningful passive surveillance;
• The HDCP creates a hierarchy for street activation, with the subject site identified as the second order (out of three). It was accepted in oral evidence that section 5.3.12 of the HDCP groups first and second order streets together; and
• Given the limited frontage and acknowledging that a wider site would allow opportunities for greater street activation, the proposed activation is acceptable.

1. Mr Pickles submits that the HDCP does not suggest that second order streets should provide retail activity, as that is to occur on first order streets. Second order streets are meant to funnel pedestrians to or from Forrest Road, which anticipates a different level of activation for Forrest Road than Treacy Street. Mr Pickles submits that the proposed development meets the activation controls through providing a glazed ground floor frontage and the upper level commercial space and boardings room that have access to balconies providing surveillance to the street.
2. Mr Fan submits that the proposed development does not achieve an appropriate interface at ground level between the building and public domain, and that this is a product of the undersized site and minimal street frontage.
3. I accept the Respondent's evidence that cl 6.10(5)(b) and (5)(d)(x) of GRLEP have not been adequately addressed by the proposed development.
4. The subject site is located within the Hurstville CBD and 300m from a train station. The subject site does not front a service lane, and as agreed in the evidence, the HDCP seeks street activation in this part of Treacy Street. The proposed building interface is dominated by services, a lobby door and a small planter. I accept the evidence that a residential lobby, whilst a form of activation, in this instance is the lowest form of activation that is not reasonably anticipated in this location as the main 'activator'. In any event, the lobby only consumes a small portion on the frontage which is otherwise occupied by services. I accept that this design response is one of the consequences of the subject site's small frontage and site area. I adopt the evidence of Mr Cadogan and submissions of Mr Fan and find that the interface between the building and public domain is inadequate, and the proposed development has not addressed cl 6.10(5)(d)(x).
5. Due to the lack of ground floor activation that would be anticipated in this area of the town centre, I find that the proposed development would not improve the quality and amenity of the public domain and has not addressed cl 6.10(5)(b).

Design Excellence Findings

1. I find that the proposed development has not addressed the streetscape, adjoining sites, the public domain interface or the constraints of the small site. I accept on the evidence that this would have resultant impacts on the amenity of the proposed boarding rooms.
2. In summary, I find on the evidence that the proposed development does not exhibit design excellence, having regard to the framework in 6.10(5) as follows:

• The building design has not responded to the small site size and demonstrates little consideration of future adjoining development and the streetscape (cl 6.10(5)(a), 6.10(5)(d)(i),(iii),(iv),(v) and (vi));
• There is an inadequate street wall and massing response to existing development (including heritage items) and exposed blank wall conditions (cl 6.10(5)(a), d)(iii),(iv),(v) and (vi));
• The relationship between the proposed development and future development has not been adequately considered in the design, with resultant amenity impacts to the north facing boarding rooms and ground floor commercial space (cl 6.10(5)(d)(i),(iv),(v),(vii) and (x));
• The small site has been compounded by a services led design. The dominance of services at the building interface (basement access, fire stairs, lifts, fire hydrants) would result in a predominantly inactive frontage and inadequate ground level interface with the public domain within a town centre location (cl 6.10(5)(b), 6.10(5)(d)(i), and (x)).
• I note that I have considered the evidence with respect to all of the provisions within 6.10(5), as detailed in the urban design/planning JER and oral evidence. The above referenced provisions are the determinative matters that have led to my finding that the proposed development does not exhibit design excellence as set out in cl 6.10.

1. With consideration of the evidence of the experts and submissions, pursuant to cl 6.10(4) of the GRLEP, I find that the proposed development does not exhibit design excellence when considered cumulatively within the framework of cl 6.10(5).

Conclusion

1. The proposed development does not exhibit excellence pursuant to cl 6.10 of the GRLEP.
2. As cl 6.10 of the GRLEP is a jurisdictional precondition to the grant of consent, the proposed development's failure to meet the precondition is determinative and the development application must be refused.
3. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No DA/2021/0448 to rely upon the amended plans, tendered as Ex A.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. 2021/0448 for the demolition of existing structures and construction of a seven-storey mixed use building containing a six-storey boarding house with 16 boarding rooms and a managers room, two office tenancies and basement car parking at 42 Treacy Street Hurstville Lot C DP 441248, as amended, is refused consent. 3. The exhibits are returned, except for Exhibits 1, A, B, E and F

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