Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council

The issues 5Compendiously stated, the issues agitated by the parties at the hearing of the appeal were the following: (i) whether the use sanctioned by the 1985 consent was an "existing use" that had been abandoned; (ii) whether, on the assumption that the use sanctioned by the 1985 consent remained an "existing use" within the meaning of the EPA Act, the development standards imposed by the planning instrument "derogate" from the incorporated provisions made under s 108 of the EPA Act and are therefore of "no force or effect" for the purposes of determining the development application; (iii) in particular, whether the decision of this Court in Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58; (2010) 173 LGERA 240 should be followed; (iv) whether, on merit, applying provisions of s 79C of the EPA Act, development consent should be granted. 6For reasons that follow, I have determined that the development consent sought by the Architects should be refused and their appeal dismissed. In determining the appeal, I acknowledge, with gratitude, the assistance of Acting Senior Commissioner Brown. 7Before turning to address the issues that I have identified, it is appropriate to describe the site and its environs, the development proposed and the applicable planning controls.

The site and its environs 8The site has frontage to the eastern side of Balmain Road. It is generally rectangular in shape, having a frontage of 12.19m, a depth of about 41.7m and an area of about 530m2, including a narrow access handle at the rear, linking the site to an unnamed lane. The existing single-storey factory/warehouse building is of brick, metal and fibro construction with a metal roof and concrete floor. The front wall of the building encroaches onto the street while the side walls are erected along the site boundary. The only sections of the site that are free of building are a narrow passage at the rear which is the subject of a drainage easement and the access handle earlier described over which there is a right of way benefiting the premises to the north and known as 159 Balmain Road. 9The internal layout of the existing building comprises an office and loft fronting Balmain Road, a large open-plan space, with storeroom and toilets at the rear. It is said that its initial use was as a metal foundry, with its last approved use being that earlier described, namely for the manufacture of detergents and warehousing of restaurant supplies. 10The immediate locality is predominantly residential in character with buildings either side comprising single storey dwelling houses. Residential buildings in the vicinity include older style detached and semi-detached cottages, two-storey terrace buildings and residential flat buildings. Diagonally opposite the site to the west is Leichhardt High School and its associated playing fields. A substantial electricity substation located further to the south along Balmain Road is presently being upgraded. 11The site is located within an area identified in the Council's Development Control Plan 2000 (DCP 2000) as the Piperston Distinctive Neighbourhood. The existing character of that Neighbourhood is described in section A10.2.3 of DCP 2000 in the following terms: "The residential building stock in Piperston is generally of low scale and density. The average street comprises detached or semi-detached cottages or bungalows interspersed by two-storey terraces. While it is difficult to identify several main architectural forms in the area, there is a profusion of bungalow and cottage style developments, terraced houses, three-storey flat buildings as well as random groups of workers' cottages ... . Front setbacks for single dwellings are mostly between 1.0m and 3.0m, creating a level of consistency in streets of mixed housing styles. Although fencing materials are consistent with the respective housing styles, the mixed development in the area results in a lack of cohesiveness between adjacent properties." That description would seem to me to be apt at the present time.

Proposed development 12As I have already recorded, there are two elements to the development application. The first involves demolition of the existing building and the second proposes the erection of a new two-storey residential flat building. The residential flat building originally proposed was to contain eight units (4 x 2 bedrooms, 4 x 1 bedroom) over a basement car park. While the rectangular building footprint remains substantially the same as that originally proposed, the design was amended prior to and during the course of the hearing, ultimately providing for a building containing six residential units comprising 4 x 2 bedroom units and 2 x 1 bedroom units. 13Basement car parking is provided for eight vehicles with access to that car park gained form the rear lane and across the access handle which links the site to that lane. The ceiling level of the car park is at or below ground level at the street frontage, but because the site slopes to the east, is partly elevated above ground level at the rear. The building set back from the street ranges between about 3.6m and 4.6m due to the splayed site boundary to the street. At the rear or eastern end of the site the proposed building has a set back from the boundary of between 5.6 and 5.75m. 14The proposed units are oriented across the northern side boundary of the site. They are located side by side along the length of the building. Living areas for each unit are at ground level while bedrooms are located at first floor level. Access to each unit is gained from a passageway that runs adjacent to the southern boundary of the site. To the north of each unit is a courtyard ranging between about 5.1 and 5.3m in width and 3m in depth. Recessed balconies of about 1m in depth are provided for each unit at first floor level. The building is to be of masonry construction with timber infill panels and Colorbond roofing.

Planning controls 15The relevant land use controls for the site are those found in Leichhardt Local Environmental Plan 2000 (LEP 2000). That LEP commenced on 22 December 2000. Under its provisions, the site is zoned 'Residential'. By cl 18, development permissible with consent in the Residential Zone includes "dwellings". The proposed development is for the development of "dwellings", as defined. As a form of land use it is therefore permissible with consent. 16Clause 18 is found in Pt 4 of LEP 2000, that Part being headed "Housing". Objectives of the plan for housing are expressed in cl 17 and include: "(a) to provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character ... ". 17The objective so expressed is implemented by the provision of cl 19, also in Pt 4 of the LEP. Clause 19(2) relevantly provides that consent must not be granted to the carrying out of residential development on land in Leichhardt if the floor space ratio of the development will exceed 0.5:1. It is agreed that the floor space ratio of the proposed development is 0.92:1. 18Clause 19(3) of LEP 2000 imposes requirements for minimum landscaped area. The minimum area specified for residential development is 40% of the site area. It is agreed that the total area proposed for landscaping is 68m2 or approximately 12.6% of the site area. 19A further requirement of the subclause is that 25% of the landscaped area (10% of the site area) - "(i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and (ii) is to be permeable, and (iii) is to be appropriate for substantial deep planting." It seems that the total area devoted to "soft" landscaping is 59.5m2 or approximately 11% of the total landscaped area. If this be correct, then numerically the "soft" landscaping requirement is met, but the total landscaped area required by the subclause is not provided. 20Applying the "existing use" provisions of the EPA Act and the Regulation, the Architects submit that compliance with these requirements is not required. Nonetheless, they have lodged objections pursuant to the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) directed to their non-compliance with subclauses (2) and (3) of cl 19. 21Part B1.2 of DCP 2000 contains guidelines and controls directed to the built form, envelope and siting of new housing, as well as additions and alterations to existing housing. The principles that inform these matters are expressed as being: "Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscaped areas. Plan new housing to provide a balance between building and spaces which respects the character of the area." 22In addressing the siting and orientation of new development, or additions to existing development, Part B1.2 seeks to reinforce the orientation of buildings towards the street with the observation that buildings "orientated across sites, contrary to the established development pattern, are intrusive and often overlook adjoining properties ... ". As I have indicated the orientation of the proposed units is across the dwelling houses and their rear yards located to the north of the site. 23Part B1.2 also seeks to limit front and rear setbacks of residential buildings by reference to a "Building Location Zone" (the BLZ). Such a zone is said to be defined by "the average front and rear setbacks of both the adjacent buildings on either side" of the site in respect of which development is proposed. The BLZ "is that part of the subject site where it can reasonably by expected that a building will be located". The residential flat building proposed by the Architects extends beyond a BLZ as so defined. In short, it extends further to the east than the average rear setbacks of the dwellings located on sites either side of the subject site. 24The controls imposed by Pt B1.2 require that siting for new development in streets with an established siting pattern must be oriented in accordance with the siting and orientation guidelines. The controls also require that all new development be located within the boundaries set by the BLZ with any departure from that control being justified in accordance with the guidelines. In order to justify departure, those guidelines require consideration to be given to matters that include the amenity of adjoining properties, compliance with floor space ratio and landscaped area controls, the character and scale of surrounding development and the adequacy of the size, dimensions and solar access of private open space for outdoor recreation and landscaping. 25Part B3.1 of DCP 2000 addresses solar access to dwellings. The control imposed by this Part requires the preparation of shadow diagrams and a design to demonstrate that solar access for a minimum of three hours between 9.00am and 3.00pm at the winter solstice is available to the living areas of new dwellings. Upstairs bedrooms in the proposed development are likely to meet this control. 26As will become apparent, the Architects contend that the controls imposed by DCP 2000 fall into a similar category as the development standards imposed by cl 19 of LEP 2000. They submit that these controls are not required to be met because the redevelopment of the site is being undertaken conformably with the "existing use" provisions of the EPA Act and the Regulation.

Existing use 27For the purpose of addressing the submissions directed to the existing use provisions of the EPA Act and the Regulation, it is necessary to record some additional facts that are not controversial. I have already recorded the grant of the 1985 consent for use of the existing building on the site and the subsequent use of the building in accordance with that consent. 28The 1985 consent was granted under the provisions of Leichhardt Environmental Plan No 20 (LEP 20). Upon commencement of LEP 2000 in December 2000, LEP 20 was repealed and use of the land authorised by the 1985 consent was prohibited. 29As I have also earlier recorded, the use sanctioned by the 1985 consent ceased in January 2007 and at no time since has that use resumed. Indeed, the Architects accept that the owner of the premises in January 2007 had no intention to continue or resume the use for the approved purpose and there is no evidence that any subsequent owner has formed an intention so to do. Nonetheless, it is accepted by the Council that the 1985 consent remains an operative consent.

The statutory provisions 30In order to address the contentions of the parties, it is necessary to set out the relevant provisions of Div 10 of Pt 4 of the EPA Act. Relevantly, those provisions are: "Division 10 Existing Uses 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 108Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development. 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act."

"Existing use" and s 109B 31The Architects contend and the Council concedes that the 1985 consent remains an operative consent, its enduring effect being preserved by the provisions of s 109B. That is, the use of the premises authorised by that consent having commenced, the entitlement to use the existing building in accordance with that consent continues, even if there be lengthy periods during which the building is vacant or even if there is no apparent intention to resume that use (Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Auburn Municipal Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19 at [24]). 32From this point, the submissions of the parties diverge. Mr P C Tomasetti SC, who appears for the Architects, submits that past use in accordance with the 1985 consent is an "existing use" of the site within the meaning of s 106 of the EPA Act. As a consequence, the provisions of s 108 apply to that use, thereby authorising, with development consent, the change of use that is sought conformably with the 'incorporated provisions' found in Pt 5 of the Regulation. He further submits that the provisions of LEP 2000 imposing development standards upon residential development have no force or effect because they derogate from cl 41(1)(d) of the Regulation, that being one of the 'incorporated provisions': s 108(3) of the EPA Act. 33The Council contests these propositions. Mr C W McEwen SC, who appears for the Council, takes issue with each of the steps in the argument advanced on behalf of the Architects. He submits that although the 1985 consent is preserved by s 109B, the right to use the site conformably with that consent, in the circumstances of this case, is not an "existing use" to which the provisions of s 108 and the incorporated provisions apply. He also submits that, if contrary to his primary submission, the right to use the site in accordance with the preserved consent constitutes an "existing use", the development standards relevant to the determination of the present application do not derogate from the provisions of cl 41(1)(d) of the Regulation. 34The contest between the parties therefore renders it necessary first to determine whether the right to use the site in accordance with the 1985 consent, preserved by s 109B, is an "existing use" within the meaning of s 106 of the EPA Act. The factual background against which that issue must be determined includes the cessation of the approved use in 2007; the fact agreed between the parties that the owner of the site at that time had no intention to continue the approved use and the fact that at no time since January 2007 has use for the permitted purpose resumed. These facts are important because it is necessary to determine whether, at the present time, being the time at which the Architects seek to invoke the provisions of cl 41(1)(d) of the Regulation, there is an existing use to which the rights and entitlements under ss 107 and 108 of the EPA Act apply (Star Property Investments Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 235; (2000) 111 LGERA 95 at [64]). 35Mr Tomasetti submits that the use of the site pursuant to the 1985 consent became an existing use when the provisions of LEP 2000 commenced on 22 December 2000. The approved use was then prohibited by the planning instrument. As the use of the site at that time was being undertaken in accordance with the consent granted before the date upon which it became prohibited, it was an existing use within the meaning of s 106(a) of the EPA Act. 36I accept that as being a correct statement of the legal position that pertained between 22 December 2000 and January 2007. But is it a correct statement of the legal position at the present time when the determination of "existing use" is critical to the determination of the present application? 37Mr Tomasetti submits that it is because the entitlement to carry out development in accordance with the 1985 consent is preserved by s 109B. He contends that as the consent cannot be abandoned and remains an operative consent, it continues to engage the provisions of s 106. Once it is accepted that the use of the site was undertaken pursuant to a development consent that is operative, that use always remains an "existing use", thereby enlivening the provisions of ss 107 and 108 of the EPA Act. 38In the context of the uncontroversial facts in the present case, I do not accept that submission. Upon their proper construction, the provisions of Div 10 of Pt 4 of the EPA Act seem to me to contemplate that a development consent preserved by s 109B will not always operate such that the use sanctioned by it will engage the provisions of ss 107 and 108. Rather, a preserved consent can operate independently of the latter sections. 39The provisions of s 106 are definitional only: they have no operative effect. As was observed by Preston CJ in BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164; (2008) 161 LGERA 77 at [23]: " ... the definition of existing use has no operation by itself but rather allows substantive provisions, in ss 107 and 108, to operate. The definition must, therefore, be employed in the substantive provisions to understand its true effect." 40Each of ss 107 and 108 require consideration, in turn, so as to identify the legislative "code" that is established for the operation of existing uses under the EPA Act. 41What is preserved by s 107(1) is the continuance of an "existing use". Expressed differently, the subsection preserves the right to continue a use that engages either paragraphs (a) or (b) of s 106. 42However, this entitlement to continue a use is circumscribed by the provisions of s 107(2) which, by paragraph (e) brings the entitlement to an end where the use is abandoned. Given the opening words of subclause (2), reference in paragraph (e) to "the continuance of the use therein mentioned ... " must be read as a reference to the use mentioned in subclause (1), namely the "existing use". 43Once an existing use is found to be abandoned, the combined operation of subsections (1) and (2)(e) of s 107 is that the use may no longer be continued. The prohibition contained in the current planning instrument against that use then has effect. 44Abandonment of an existing use may be established in either one of two ways. First, it may emerge from the statements or actions of the owner of the land upon which the existing use is being conducted, manifesting an intention no longer to continue the use of the land for its present purpose (Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 per Hope JA at 716-717). Secondly, abandonment may occur by operation of subsection (3) of s 107 from the presumption of cessation of actual use for a period of 12 months, coupled with the absence of any evidence to rebut that presumption. The evidence in the present case clearly demonstrates that use of the land for the purpose of manufacture of detergents and warehousing of restaurant supplies has been abandoned on either basis. Actual use has not occurred for a period in excess of five years and neither the owner of the site when the use first ceased nor any subsequent owner has demonstrated any intention to continue that use. 45Significantly, the terms in which s 107(2) circumscribe the continuance of an existing use do not differentiate between a use so defined by reason of historic user and one that is so defined by reason of user pursuant to a development consent granted prior to commencement of a planning instrument prohibiting that use. Application of the subsection to an existing use of the latter kind is apparent from the reference in s 107(2)(d) to the continuance where that use is "in breach of any consent in force under this Act". 46Having identified the manner in which the right to continue an existing use is circumscribed or constrained by s 107(2), it seems to me that the provisions of s 108 do not operate as if the provisions of s 107 have no relevance to them. The constraints imposed by paragraphs (a) and (c) of s 107(2) are complemented by paragraphs (a) and (c) of s 108(1). The latter paragraphs identify the subject matter of regulations that may be made to address the limitations imposed by the identically lettered paragraphs of s 107(2). The interrelationship between the two sections indicates that a necessary prerequisite to the exercise of power available under the incorporated provisions is the identification of an "existing use" that has continued and has not been abandoned at the time at which the power is sought to be invoked. 47Further, it is relevant that the power afforded by s 108(1) to make regulations that constitute the incorporated provisions, is a power to be exercised "for or with respect to existing use". When this and the preceding provisions to which I have referred are taken into account, it is inconsistent with a purposive interpretation of ss 106, 107 and 108 to determine that a use once categorised as an "existing use", within the meaning of s 106, but which has been abandoned within the meaning of s 107(2)(e), is nonetheless a use which engages the operation of s 108 and thereby the powers identified in the incorporated provisions. Yet, that is the consequence of the submissions made on behalf of the Architects. 48My interpretation of the statutory provisions leads me to conclude that there are two different, albeit related, concepts or rights identified within Div 10 of Pt 4 of the EPA Act, directed to the entitlement lawfully to continue to use land when an environmental planning instrument has intervened to prohibit that use. The first concept or right is that directed to an "existing use" as defined. The provisions of ss 106, 107 and 108, read as an integrated 'code' directed to that concept or right, both limit the entitlement to continue an "existing use" and also provide for the manner in which that use, as continued, may be subject to change either in its physical dimension (its expansion or intensification or the extension or rebuilding of a building used for an existing use), or in the very nature of the activity itself (a change of use). Continuity of user is essential not only to maintain the status of the use as an "existing use" but also to maintain the entitlement to seek development consent in accordance with the incorporated provisions. 49The second concept or right is that to which the provisions of s 109B are directed. The obvious purpose of the section is to preserve an operative ("in force") consent. The consent continues to operate because it is an instrument under the EPA Act (s 3 Interpretation Act 1987) and according to its own terms. The preservation of the consent is independent of the provisions of s 107: s 109B(2)(c). 50Undoubtedly, there will be many circumstances in which the use sanctioned by a consent preserved under s 109B also falls within the definition of "existing use" in s 106. In that event, the continued categorisation of the use as "an existing use" is subject to the provisions of s 107. If that use is abandoned within the meaning of s 107 it will lose its status as an "existing use" and so will not engage s 108 and the incorporated provisions. 51Nonetheless, the preservation of the consent by s 109B ensures that the use it sanctions may be carried out at any time, so long as this is done in accordance with the terms on which the consent was granted. What the section does not do is to impose upon that consent either the restrictions created by s 107(2) or give rise to any entitlement created by or pursuant to s 108, if the use authorised by the preserved consent has lost its status as an existing use. In this regard it is relevant to be noticed that the language of s 109B neither expressly uses nor impliedly adopts the expression "existing use". 52The distinction that I have drawn between the rights and limitations applying to an existing use and the right to use land in accordance with an operative development consent, where the use authorised by that consent is prohibited by a current planning instrument, is a distinction supported by authority. The Minister's Second Reading Speech introducing the legislation by which s 109B was inserted into the Environmental Planning and Assessment Act, together with the Explanatory Memorandum published at that time, indicates that the section had "merely declaratory effect" (Auburn Council v Nehme per Handley JA at [15]). It did not create any new right. 53There is ample authority for the proposition earlier stated that a use pursuant to a development consent protected by s 109B may also be an existing use within the meaning of s 106. A number of the authorities were collected and discussed by Biscoe J in Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 at [54] - [57] (see also his Honour's judgment in Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116 at [36]). However, his Honour also recognised that the entitlement to carry out development in accordance with a development consent that is in force, notwithstanding the provision of an environmental planning instrument that prohibits that use, will not always engage the provisions of s 107. His Honour said at [58]: "Although a use may straddle s 109B (attracting the benefit of a consent) and s 107 (protecting existing use rights as defined in s 106), s 107 existing use rights can be abandoned, whereas a consent under s 109B cannot be abandoned (Auburn Council v Nehme (CA); Lederer v Sydney City Council (2001) 119 LGERA 350 at [118])". 54Those observations are consistent with observations by Pearlman J in Auburn Council v Constanti [2000] NSWLEC 194; (2000) 109 LGERA 355. There, the applicant council sought to restrain the use of land being used to provide access to a service station. The respondents claimed that the use was an existing use by reason of development consents granted prior to the operation of the then current planning instrument which prohibited the use of the land in question for the purpose of a service station. Alternatively, the respondents contended that the consents were protected by the provisions of s 109B. The applicant replied by contending that the "existing use" had been abandoned or alternatively that the use involved an unauthorised expansion or intensification of the existing use reflected in those consents. The applicant was unsuccessful in its contentions. 55In addressing the respondent's defence that its use was protected by s 109B, her Honour said at [48]: "The first matter to be noticed in connection with this case is that s 109B has effect despite anything to the contrary in s 107. If, contrary to the findings I have made, the existing use of the site for the purpose of a service station has been abandoned, or the existing use has been enlarged, expanded or intensified, then s 107 would not operate to preserve the existing use, and thus would not operate to authorise the impugned activity. However, if s 109B applies to the [consents], then a use of the site pursuant to those consents would authorise the impugned activity, despite any abandonment or enlargement, expansion or intensification." 56The different role performed by the statutory provisions directed to "existing use" on the one hand and the provisions of s 109B on the other are clearly recognised in her Honour's judgment. It is that same difference in role performed by those provisions that I have endeavoured to identify. 57The evidence before the Court makes it abundantly clear that the use of the site for the purpose approved by the 1985 consent was abandoned in January 2007. It is not a use that has continued so as to engage the provisions of s 108 of the EPA Act and the incorporated provisions made under that section. Nonetheless, it is a use ("development") that may be carried out in accordance with the 1985 consent. That consent alone "sets the boundaries of the [Architects'] authority to use the [site]" in a manner that is not sanctioned by the 2000 LEP (cf House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [36]). 58My determination that s 108 of the EPA Act and the provisions of Pt 5 of the Regulation are not, in the circumstances of this case, engaged, strictly renders it unnecessary to determine the second issue earlier identified, namely whether development standards imposed by LEP 2000 apply to the determination of the development application. As the matter has been argued and against the possibility that I am wrong in determining the present issue, it is appropriate that I address the development standards issue.

59I have earlier identified the provisions of cl 19 of LEP 2000, imposing development standards upon residential development of a kind contemplated in the present application. The Architects submit that the provisions of cl 19 of the LEP have no force or effect for the purpose of determining the present development application as they "would derogate or have the effect of derogating from" the provisions of cl 41(1)(d) of the Regulation: s 108(3) of the EPA Act. 60Clause 41 of the Regulation relevantly provides as follows: "41 Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act)." 61By cl 45, development consent is required for "any change of an existing use to another use." Clause 46 then provides: "Nothing in this Part prevents the granting of a development consent referred to in cl 42, 43 or 44 at the same time as the granting of a development consent referred to in cl 45." Clauses 42, 43 and 44 relate to the requirement for development consent to be obtained for enlargement, expansion and intensification of existing uses, the alteration or extension of buildings used for an existing use and the rebuilding of a building used for an existing use respectively. 62The development standards imposed by subclauses (2) and (3) of cl 19 of LEP 2000 will "derogate from" the provisions of cl 41(1)(d) of the Regulation if they "take away from" or "detract from" the provisions of the latter subclause (Carden v Willoughby Municipal Council (1985) 56 LGRA 366 per Kirby P at 368). Thus, it becomes necessary to focus upon the provisions of the Regulation as they presently stand, recognising that earlier jurisprudence upon provisions authorising an existing use to be changed to another use must yield to the precise terms of the current provisions (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 at [31] - [35]). 63The power provided by cl 41(1)(d) to change an existing use to another use is a power limited by the words of the paragraph commencing with the phrase "but only if". That phrase emphasises the further constraint upon the exercise of power that the use to which a change can be authorised is one "that may be carried out with or without development consent under the Act." 64The Architects submit that this limitation is one that requires reference only to the land use table of the particular planning instrument applicable to the land in question or to a provision which otherwise identifies generic permissibility. Once the use proposed is identified as falling within either a permitted or permissible (with consent) category of land use by reference to the table or other provision of the instrument, the provisions of cl 41(1)(d) are engaged. I do not accept that submission. 65In order to give effect to subclause (1)(d) of cl 41, it is necessary to consider all of its provisions. A given form of land use can only correctly be described as development that is either permitted or permissible by reference to the land use table of a planning instrument if the particular form of land use proposed has such characteristics as are specified in the planning instrument, that enable that land use to be identified as a use "that may be carried out with or without development consent under the Act". The presence or existence of those characteristics will often be necessary in order to make that determination. The provisions of LEP 2000 may be used to illustrate that proposition. 66By cl 18 of LEP 2000, the only kind of development that may be carried out without development consent is described as "[e]xempt development". Clause 6(3) of the instrument provides that development is exempt development only "if it complies with the development standards and other requirements applied to the development" by a nominated development control plan. It follows that unless a particular activity meets the standards and requirements of the identified development control plan, that activity will not constitute a use for "exempt development" within the meaning of the land use table. The existence of the characteristics identified in the development control plan is therefore necessary to determine whether the use proposed is a use that may be carried out without development consent under the EPA Act. 67In the context of cl 41(1)(d), the characteristics of a particular activity may therefore be seen as definitional. They are definitional in that context if the presence of those characteristics is necessary to determine whether the proposed activity is a use able to be carried out without development consent. 68When the characteristics of a particular form of activity are necessary to be present in order to determine whether, in the example given, the activity is exempt development and therefore a use permitted without development consent, the stipulation of those characteristics by reference to provisions of LEP 2000 does not "derogate" from cl 41(1)(d). On the contrary, their existence is necessary to determine whether the power provided by the subclause is able to be exercised. This illustrates the proposition, contrary to the Architects submission, that the land use table or other provision identifying generic permissibility is not necessarily the sole source of reference for the purpose of determining whether a particular form of land use may be carried out without development consent. 69This reasoning must also be applied to cl 41(1)(d) when determining that a use to which the "existing use" is proposed to be changed is one that may be carried out with development consent. If the land use table is the sole source of reference within a planning instrument in order to determine that a particular activity constitutes permissible development, then the submissions made on behalf of the Architects would be correct. However, that is unlikely to be the position that pertains under most modern planning instruments. It is not the position that pertains under LEP 2000. 70The extent to which the land use table is qualified by other provisions of a planning instrument must be considered when addressing the application of cl 41(1)(d). Relevantly, if another provision of the instrument constrains permissibility of a nominated form of land use to one having particular characteristics, development of that kind which lacks those characteristics cannot be identified as a use that may be carried out with development consent under the Act (cp Woollahra Municipal Council v Carr (1985) 62 LGRA 263 per Priestley JA at 267 and McHugh JA at 269). 71The proposition can again be illustrated by reference to the provisions of cl 18 of LEP 2000. Item (3) of the Table to that clause identifies those forms of development that are "allowed only with development consent". They include a number of development purposes that fall within the definition of "residential development" contained in Sch 3 to the instrument. 72Clause 7(2) of LEP 2000 is in the following terms: "7(2) Development which is allowed or prohibited in each zone Except as otherwise provided by the Plan, development of land within a zone that: (a) may be carried out with or without development consent, or (b) is prohibited, is specified in the development control table for the zone." Clause 19(2) is a provision operating by way of exception to the development control table for the Residential Zone. Relevantly, cl 19(2) provides that "consent must not be granted to the carrying out of residential development" if it will result in a floor space ratio exceeding that in the table to that subclause. Thus, in order to determine whether development for any of the purposes falling within the definition of "residential development" are uses of land that may be carried out with development consent granted under the Act, it is necessary to refer both to the development control table and to the provisions of cl 19(2) that operate by way of exception to the table. Unless the development in contemplation meets the requirements of both, it cannot be said that it is development for a use that may be carried out with the relevant consent under the Act. Permissibility of land use cannot in this case be determined solely by reference to the development control table. 73My conclusion as to the manner in which cl 41(1)(d) is to be interpreted is supported by the history of amendment to the incorporated provisions. Clause 41(1)(d) in its present form was inserted into the Regulation by the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006. Prior to its amendment, cl 41 provided: "41 Certain development allowed (1) An existing use may, subject to his Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, including a use that would otherwise be prohibited under the Act. (2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use." 74The entitlement under cl 41(1)(d), in that form, to change to a use, including a prohibited use, was, in substance, the form which the incorporated provisions had taken since commencement of the EPA Act in 1980. It will therefore be apparent that the purpose of the 2006 amendment to the Regulation was to effect a significant alteration to the power to change any existing use to another use. As Mr McEwen submitted, the former provision was permissive and broadly expressed, as demonstrated by the power to change a use to a prohibited form of development. Any provision in a planning instrument having the effect of restricting the exercise of power by reference to constraints imposed by development standards would obviously derogate from the provisions of a clause so broadly expressed. 75By contrast, the words of the present cl 41(1)(d) are restrictive and narrow, such that a provision of a planning instrument having the effect of prohibiting development will not derogate from the provisions of the clause. Indeed, the requirement of cl 45 to obtain development consent to a change of use coupled with the limitation expressed in cl 41(1)(d) authorising such a change "but only if" the proposed use is one for which development consent can be granted, are requirements that mandate the consideration of all provisions of the applicable planning instrument in order to determine permissibility. 76The Architects submit I am bound to determine that the development standards imposed by cl 19 of LEP 2000 derogate from cl 41(1)(d) and cl 45 of the Regulation by reason of the decision of the Court of Appeal in Carden v Willoughby Municipal Council. I do not accept that submission. In Carden the Court was concerned to determine whether the provision of a regional environmental plan that prohibited the grant of development consent on land in question "unless there is provided on the site a car parking station", derogated from the incorporated provisions in the form which they then took. The use of the land at the time at which development consent was made to change that use was an "existing use" within the meaning of the EPA Act. 77The Court of Appeal determined that the clause of the regional environmental plan prohibiting consent unless a car parking station was provided "operated to restrict the council's power or duty to give consent" under the regulation then authorising the change of an existing use to another use. As a consequence, the provision of the regional plan would derogate from the terms of the regulation, within the meaning of s 108(3) (per Mahoney JA, McHugh JA agreeing, at 372). However, the incorporated provision from which the provision in the regional plan was held to derogate was in different terms to the current provisions of the Regulation. The incorporated provision then applicable was cl 54 of the Environmental Planning and Assessment Regulation 1980 (now repealed). Clause 54 relevantly provided: "54(1)For the purposes of section 108(1)(b) of the Act, an existing use may, with consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act." 78It will be seen that, in substance, that provision was to similar effect as cl 41(1)(d) prior to its amendment in 2006. Unsurprisingly, where the provisions of a planning instrument imposed a prohibition upon development, either in conditional or absolute terms, such provisions were seen to derogate from an incorporated provision that allowed a change of use, with consent, whether or not that change of use was prohibited. 79For the reasons earlier indicated, the proper interpretation of the present Regulation leads me to conclude that the determination in Carden no longer has application to the present form of cl 41(1)(d), at least as it is sought to be applied to the application of development standards imposed in a planning instrument. I add this qualification because on one view, the prohibition against consent imposed by the regional plan considered in Carden was not a provision that specified a requirement or fixed a standard in respect of an aspect of development being considered and was therefore not a development standard within the meaning of the EPA Act (cf North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGERA 222). However, it is unnecessary to express any final view as to whether this was the case: it is sufficient for present purposes to distinguish Carden on the basis that the provisions of the incorporated provision there considered (cl 54) differ significantly from the current provision. 80For similar reasons, Mr Tomasetti's reliance upon decisions of this Court in Kremer & Associates v North Sydney Municipal Council (1982) 47 LGRA 209, Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373, Star Property Investments Pty Ltd v Leichhardt Municipal Council and Multistar Pty Ltd v Minister for Urban Affairs and Planning (No 2) [2000] NSWLEC 242; (2000) 111 LGERA 319 are to be distinguished. All dealt with the provisions of cl 41 of the Regulation prior to its amendment in 2006. 81The proposition for which the Architects contend, together with the cases said to support the contention, were considered by Pain J in Iris Diversified Property Ltd v Randwick City Council. Her Honour was there considering, as a separate question, whether provisions of a planning instrument imposing development standards directed to minimum landscaped area, maximum floor space ratios and building heights applicable to the particular form of development being sought, were provisions that derogated from cl 41(1)(d) of the Regulation in its present form. The assumption, for the purpose of argument before her, was that the use sought to be changed was an existing use within the meaning of the EPA Act. 82Having considered a number of the arguments that were advanced by Mr Tomasetti before me, together with authorities cited in support of those arguments, her Honour concluded that the relevant development standards within the planning instrument did not derogate from the provisions of cl 41(1)(d). As a consequence, those provisions of the planning instrument continued to have force and effect but, being development standards, were susceptible to objection made under the provisions of SEPP 1. 83Mr Tomasetti submits that her Honour's decision was wrong. For the reasons that I have indicated, I do not accept that submission and respectfully concur in the conclusion that her Honour reached. Further, I do not accept that such conclusion gives no work for cl 41(1)(d) to do. Section 107(1) authorises the continuance of an existing use and nothing more. Section 108(1)(b) authorises the making of regulations "with respect to ... the change of an existing use to another use". Clause 41(1)(d) gives effect to that power by restricting its exercise in the manner earlier described. It is declaratory of the circumstances in which a change of use can be made. It is hardly surprising that it should do so, given the long history of regulation that allowed a change from one use to another use, unconstrained by uses otherwise prohibited on land proposed to be developed. 84By imposing development standards, the planning instrument does no more than stipulate the manner in which a use "may be carried out with or without development consent under the Act". So understood, the provisions of cl 19 of LEP 2000 do not "destroy or impair the force or effect of ... or lessen the extent of ... or detract from" the provisions of cl 41(1)(d) (Fabcot Pty Ltd v Hawkesbury City Council at 378). 85In reaching the conclusion that I have, I do not overlook the provisions of cl 46 of the Regulation. Although that clause has earlier been quoted, I repeat its provisions: "Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45." 86While consent may be sought to extend a building used for an existing use (cl 43) or for the rebuilding of the building presently put to that use (cl 44) at the same time as consent is sought to change the use of the building, I do not consider that cl 46 aids the ultimate contention made by the Architects. Clause 45 imposes the requirement to obtain consent for a change of use. However, the power to grant that consent is circumscribed by cl 41(1)(d). Therefore it seems to me that even if a 'combined application' was made, the use of a new building for its existing use could not be changed unless the new use was one that may be carried out with or without development consent under the Act. The limitation applying to such a consent that I have earlier addressed remains applicable. 87If, contrary to the determination earlier made, the provisions of s 108 of the EPA Act and the incorporated provisions of the Regulation are engaged by the present development application, I nonetheless conclude, for the reasons stated, that cl 19 of LEP 2000 is applicable to the determination of the present development application. In that circumstance it remains necessary to consider the objections made under SEPP 1 on behalf of the Architects that the development standards imposed by cl 19 are unreasonable or unnecessary in this case. That determination is to be made before determining whether to grant development consent to their application. It is to those objections and the general merits of the application to which I now turn.

Merit assessment 88I have earlier identified both the development standards required to be addressed for the purpose of determining the development application as well as the issues tendered for consideration by the provisions of DCP 2000. Ultimately, the determination of the development application necessitates that attention be given to all relevant matters, the consideration of which is mandated by s 79C of the EPA Act. The determination of the application by addressing the matters to which consideration is directed by that section arises even if the Architects are correct in their submission that the development standards imposed by LEP 2000 and the requirements of DCP 2000 do not impinge themselves upon the grant of development consent in the present case. So much is accepted on their behalf by Mr Tomasetti. 89For the purpose of addressing the merit issues arising in these proceedings, each party called evidence from a town planning consultant. Mr James Lovell was retained by the applicant and Ms Deborah Laidlaw was retained by the respondent. Each of them provided an individual statement of evidence. They conferred prior to the hearing and produced a joint statement. Apart from indicating their disagreement as to whether the SEPP 1 objections lodged on behalf of the Architects were well-founded and as to whether the extent to which the proposed development did not comply with LEP 2000 was justifiable, the issues identified by them in their joint statement were: (a) bulk and scale; (b) residential character; (c) the length of the proposed building, the orientation of the units within it and the consequential impacts in terms of amenity and character; (d) the adequacy and quality of the landscaped area; and (e) both internal amenity of the dwelling units proposed having regard to solar access and outlook, as well as the external amenity of adjoining properties considered in the context of the buildings size and orientation. 90Ms Laidlaw's initial assessment was made by reference to version B of the development plans that had been prepared by the Architects. As I have earlier indicated, both before and in the course of the hearing these plans were amended on a number of occasions resulting in some of the detailed concerns expressed by Ms Laidlaw being satisfied. 91Mr Lovell and Ms Laidlaw agreed that strict compliance with the numerical requirements imposed by cl 19 of LEP 2000 was unnecessary. They acknowledged that this was so, given the public benefit of having the architecturally undistinguished existing industrial/warehouse building, occupying almost the entirety of the site, removed from an area that was predominately low scale residential. They disagreed as to the extent to which departure from those development standards could be justified. For the reasons stated by the planners, I accept that some departure from those standards is justified. 92Acceptance of the proposition that some variation of the development standards is justified does not strictly determine the outcome of the SEPP 1 objections. However, I have concluded that if those objections were to be upheld, the merits of the Architect's proposed development, even in its finally amended form, does not warrant the grant of development consent. In order to support this conclusion it is appropriate to refer to the evidence given by the planners and to my assessment of it.

Planning evidence 93Ms Laidlaw states that in planning the development of the site, it is appropriate to limit a new building or buildings to that part of the site on which it might reasonably be expected that built form or forms would be located, having regard to the development pattern in the immediately surrounding area. By maintaining the characteristic pattern of residential buildings, addressing the street and having a garden or open space at the rear, appropriate separation is provided between the rear of dwellings on parallel streets. Orientation of buildings in this manner minimises the impact upon the amenity of adjoining properties by limiting overshadowing, the appreciation of building bulk and the reduction of privacy to adjoining neighbours. 94In the present case, the orientation of the building is across the northern side boundary which is wholly uncharacteristic of nearby development. The length of the proposed building extends significantly beyond the BLZ with which DCP 2000 seeks compliance. This has the consequence that there is negligible open space at the rear, exposing the bulk of the new building for a considerable length to properties located to the north and south. This extended building length has uncharacteristic impacts upon privacy on adjoining properties. The undifferentiated roof height of the building for this extended length also has shadow impacts upon the property to the south. 95Mr Lovell seeks to support the built form proposed on the basis that its impacts are no greater than those of the existing industrial building. For her part, Ms Laidlaw does not accept that where, as here, the existing building is to be replaced by a new building used for a residential purpose, the existing industrial building justifies the extent of built form presently proposed. 96Mr Lovell also supports the proposed built form on the basis that its use for residential purposes provides a material benefit which justifies the extent to which the proposed building does not comply with the numerical controls imposed by cl 19 of LEP 2000. In his opinion, the proposed building is less bulky than the existing building: it is said to be compatible in height and provides greater setbacks from boundaries than does the present industrial building. He points to the capacity of the proposed development to provide an improved presentation to the street. He also identifies its capacity to provide more open space on the site than is the case with the present building which, as I have indicated, occupies almost the entirety of the site. While contending that those impacts from the proposed development identified by Ms Laidlaw are acceptable, his central focus is upon a comparison between the existing building and that which is proposed, representing, as it does, an improved built form to that which exists.

Consideration 97Having had the benefit of an inspection of the site and its environs, I generally prefer the evidence of Ms Laidlaw to that given by Mr Lovell. His evidence was, to my mind, too heavily focused upon the comparison between the existing building and that which is proposed, rather than upon the expectation for reasonable residential development of the site which is compatible with the form and disposition of residential development in this area of Leichhardt. Considerations of that kind were not only required by attending to the requirements for residential development expressed in the Council's planning instruments, but also in attending to considerations arising under s 79C(1) of the EPA Act. It must be remembered that, independently of the requirements of a planning instrument or development control plan, consideration of the likely impacts of the development proposed on the built environment and the suitability of the site for that particular development is mandatory: s 79C(1)(b) and (c). The effect of Ms Laidlaw's evidence was that the building proposed in the present application is too large and its built form inappropriate for the site. I accept that criticism as being sound for a number of reasons. 98First, the form of the proposed building is not readily recognisable as being consistent with the existing residential character of the area or that anticipated by the present planning controls. Undoubtedly, many of the residential buildings in the area were erected before the current development standards were imposed. Many may have a floor space ratio in excess of 0.5:1. However, the combination of my site inspection and the aerial photograph tendered in evidence does not lead me to conclude that the form and site cover of development proposed is reflective of other residential buildings erected in the locality. 99Importantly, the proposed building is a two-storey building extending for a length of 31m. The rear two-storey wall is located approximately 5.6m from the rear boundary of the site. The dwellings erected on adjoining land are located some 20m from the rear boundary. The extent to which the building in its two-storey form extends beyond the apparent rear building line set by adjoining buildings gives force to the criticisms directed to the bulk and overbearing appearance of the proposed building when viewed from the rear yard of those properties. The proposed building does little to reflect the existing pattern of dwellings fronting the street with a rear garden or open space providing visual separation from the rear of adjoining or adjacent dwellings. 100Secondly, I accept that the length and height of the proposed building occasions a shadow impact upon the property located to the south. Shadow diagrams were provided which sought to demonstrate the difference between the shadow cast by the existing industrial/warehouse building and that cast by the proposed building. While quantitavely there is little difference when that comparative exercise is undertaken, a qualitative dimension should also be imposed upon this consideration. At present, the rear yard of the property to the south (163 Balmain Road) receives little mid-winter sun. An increased set-back of the proposed building from its eastern boundary could add substantially to sunlight received into the rear yard of number 163. As I consider the length of the building to be uncharacteristic of the residential development pattern in the area and not reflective of that which might be expected in a development that paid due regard to the impacts upon neighbouring property, the extent of shadow cast by the proposed building is, to my mind, unreasonable. 101A third reason for supporting the criticism voiced by Ms Laidlaw is the impact which the length and orientation of the building has upon privacy in adjoining properties, particularly those immediately to the north of the site. This impact is accentuated not only because the building is two-storeys, where those dwellings adjoining the site are single-storey, but also by the extension of the building beyond the rear of dwellings located to the north. The upper levels of the proposed building face directly into and across the rear yards of those properties. The controls reflected in DCP 2000, seeking to limit development to the BLZ, are undoubtedly intended to address an amenity issue of that kind. Once again, it is the uncharacteristic length of building that occasions the problem. 102This potential impact upon privacy by overlooking rear yards to the north occurs from the first floor bedroom level of units 4, 5 and 6. Each of these units have balconies of a little over 1m in depth and 5m in width. They are located about 2m from the common boundary with the property to the north and overlook the area which is the rear yard of that property. While potential overlooking from a bedroom is generally regarded as having less impact than overlooking from a living area, the proximity of the balcony to the common boundary coupled with the potential for high use becomes more significant in this case. That potential for higher use arises because of the small area of open space available to the occupiers of these units at ground level, coupled with the limited solar access to that ground floor area. 103Fourthly, Ms Laidlaw criticises the design of the proposed building which provides for pedestrian access to all units along a passageway adjoining the southern boundary of the site. It is said that because of the likely extent of pedestrian usage of this passageway, it has the potential to impact upon the occupants of the property to the south, particularly by reason of its impact upon acoustic privacy. I accept that this is a less than desirable design element. However, if this was the only criticism of the design it would not, to my mind, found a basis for refusal of the application. However, I identify it as being one of a number of criticisms raised which, cumulatively, cause me to reach the conclusion that I have reached. 104The fifth reason for supporting the criticism of the development made by Ms Laidlaw is the lack of landscaped area. The numerical shortfall by reference to the development standard has earlier been stated: only 12.6% of the site is available for landscaped area whereas the requirement is for 40%. The significant shortfall is again the product of the size of building proposed for the site. While exact compliance with the requirement is not advocated, closer compliance is required not only to provide some compatibility with the extent of landscaped or open area generally found in both front and rear yards of development in the area, but also to reflect the purpose for which the landscape standard is imposed. The objective of the requirement is reflected in cl 17(b) of the LEP which provides: "17(b)to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents". 105Despite the fact that the total landscaped area provided by the proposed development is about one third of that required by cl 19(3)(a), Mr Lovell maintains that what is proposed is "an appropriate landscaped treatment in the context of surrounding development, particularly on the basis of the substantial improvements relative to the existing situation". When confronted by the objective expressed in LEP 2000 for landscaped area, Mr Lovell acknowledged that there was little or no capacity in the rear setback of the proposed development for any substantial tree planting. The absence of landscaped areas of any substance contributes to the perception of the proposed development as one that is alien in form to that generally existing in this area. The alien size of the existing building should not be given emphasis in seeking to justify a new building for residential use as one that is also alien. 106The final matter to which I advert as supporting the criticism of Ms Laidlaw is the lack of appropriate solar access to the living areas of a number of the proposed units. While neither LEP 2000 nor DCP 2000 impose specific requirements for solar access to private open space, Mr Lovell and Ms Laidlaw agree that the generally accepted standard is for three hours of direct sunlight to at least 50 per cent of the area of private open space between 9.00am and 3.00pm in mid-winter. 107Solar access diagrams provided by the Architects indicate that there will be no mid-winter solar access to the ground level private open space areas for units 1, 2, 3 and 4 and only limited solar access, below the accepted standard, for units 5 and 6. Further, there would be no direct solar access in mid-winter to the internal living space for units 2 and 3 with only limited solar access available to unit 1. This limitation upon solar access both to courtyards and internal living areas in a number of units would suggest inappropriate design. It is a consequence that bespeaks an attempt to obtain more building and units on the site than is appropriate.

Conclusion on merit 108The fundamental problem which founds the criticism voiced by Ms Laidlaw, accepted by me and supported by objectors who gave evidence, is the size of the building and the quantum of floor space it seeks to incorporate. While the floor space standard imposed by cl 19(2) of LEP 2000 is not determinative of what may be appropriate for the site, taking into account the form and size of the existing building, the objective that informs the standard is an appropriate focus for consideration. 109It is agreed between the planners that the objective of the standard is reflected in paragraph (a) of cl 17 which I have set out in full at [16]. When considering this application in accordance with s 79C of the EPA Act, even in the absence of cl 19 of LEP 2000, it would, to my mind, be relevant to consider whether new development was complementary to and compatible with the style, orientation and pattern of surrounding development. Whether it be by reference to the LEP 2000 and DCP 2000 or by reference to the more general considerations imposed by that section, the proposed development fails to meet this appropriate planning objective. 110The development presently proposed by the Architects should be refused.

Orders 111For the reasons stated, the orders that I make are as follows:

1. Appeal dismissed
2. Development application D/2011/126 for demolition of an existing industrial building and construction of a residential flat building at 155-157 Balmain Road, Leichhardt is refused.
3. No order as to costs unless within 14 days of this order arrangements are made through my Associate to argue for a different order.
4. Exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2012