Eastside Projects Pty Ltd v City of Canterbury Bankstown Council

Land and Environment Court (NSW)|2020-02-05

Judgment

COMMISSIONER: This is an appeal against the City of Canterbury Bankstown Council's deemed refusal of Development Application No. DA-201/2018 ('application'). The application is for a five storey mixed use development at 680 New Canterbury Road Hurlstone Park, legally described as Lot 1 DP 124306 ('site').

The proposal

The application before the Court, after leave was granted for amended plans, seeks consent for demolition of existing structures and construction of a five storey building comprising: (1) a 48 room boarding house, (39 x double, 8 x single and 1 x double manager's room), a communal room and common open space; (2) an area of commercial space at ground level, and (3) associated basement parking (two levels) and ground level parking.

Site

The site is irregular in shape with a site area of 613.3m2 (by title), and is located on the southern side of New Canterbury Road west of its intersection with Wattle Lane. The site has a frontage of 14.535m to New Canterbury Road, a depth of 65.77m along the eastern boundary to Wattle Lane inclusive of a 4.32m splay, a depth of 46.79m along the western boundary and a rear boundary of 9.06m (shared with Wattle Lane). Currently existing on the site is a single storey brick building used as a vehicle repair station.
By way of background there is agreement that an earlier consent over the site, described as DA-645/2015 (Ex D), remains valid. It was issued on 4 September 2017 for the 'demolition of existing structures and construction of shop top housing development consisting of 14 apartments over five storeys with two levels of basement car parking and one ground floor retail premise' ('2017 consent').

Locality

The site is located within what might be described as the Hurlstone Park commercial strip, quite near the junction of Old and New Canterbury Roads which "merge" into Canterbury Road, which continues west and south from this junction.
A three storey mixed use development (682-704 New Canterbury Road) directly adjoins the site to the west. The development comprises ground floor retail with residential units located above. Single to two storey commercial developments are located beyond. To the north of the site, on the opposite side of New Canterbury Road are a mix of one and two storey commercial buildings, five storey shop top housing development and one single storey detached dwelling.
A variety of uses are located to the east of the site on the opposite side of Wattle Lane including a service station, a church (8 Melford Street) with a hall which opens onto Wattle Lane, and a number of single to two storey detached dwellings. To the south of the site (also on the opposite side of Wattle Lane as it veers to the west) is a two and three storey residential flat building. This property has a primary frontage to Melford Street and secondary frontage to Wattle Lane. The Canterbury Hurlstone Park RSL is located nearby to the south-west of the site, on the southern side of Wattle Lane.
There exists a number of four to seven storey mixed use / shop top housing developments further east of the site along New Canterbury Road, both along the northern side which is within the Inner West Local Government Area, and the southern side which is within the City of Canterbury Bankstown.

Site inspection and lay submissions

The hearing commenced with a site view. Submissions were heard from a number of nearby residents and one representative of the church. Their concerns can be summarised as follows:

There is already overdevelopment and overcrowding in the wider locality, and deficiencies in services; with this proposal seen as adding to the problem.
General traffic and parking concerns. Specifically, more traffic is seen as likely to reduce safety and reduce convenience for users of the church hall (both children and older people use the laneway to access pick-up and drop-off). There is concern that people will park in front of the rear door to the church hall.
Visual impacts and loss of sunlight associated with building height, bulk and scale.
Loss of quiet amenity enjoyed in the private open space for properties fronting Melford Street, which are only separated from the development by a narrow lane.
Building aesthetics.
Concern about the construction and excavation implications for other properties.

State Environmental Planning Policy (Affordable Rental Housing) 2009

The provisions of Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 ('SEPP') apply to the application. I am mindful of the provisions of cl 29 (in regard to certain development standards that cannot be used to refuse consent) and cl 30 (in regard to certain development standards established as prerequisites for any consent to boarding house development) in the evaluation of the application. The parties agree that points of concern do not arise in regard to either cl 29 or 30 of the SEPP, and I agree.
Clause 30A of the SEPP has pertinence requiring me to consider whether the design of the proposed boarding house development is compatible with the character of the local area. This comes into contention in the evaluation.

Canterbury Local Environmental Plan 2012

Canterbury Local Environmental Plan 2012 ('LEP') applies to the site. The site is zoned B2 Local Centre. The proposed mixed use proposal is defined as a "boarding house" and a "commercial premises" each of which is permissible with development consent in the B2 zone.
LEP provisions of note in regard to the assessment of the proposal include: 1. Clause 2.3 which requires me to have regard to the objectives of the B2 zone in this evaluation. The zone objectives are reproduced below: a) To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. b) To encourage employment opportunities in accessible locations. c) To maximise public transport patronage and encourage walking and cycling. d) To facilitate and support investment, economic growth and development for active, diverse and well-designed centres. 1. Clause 4.1C which relates to minimum lot sizes for boarding houses - no minimum lot size controls apply to boarding houses within the B2 zone. 2. Clause 4.3(2) which relates to height - a maximum height of 18m applies to the site, with which the proposal complies. 3. Clause 4.4 which relates to floor space ratio (FSR) - there is no FSR control applying to the site; in that sense the "bonus" FSR provisions under SEPP ARH have no formal application. 4. Clause 6.2 which requires me to consider a list of matters relating to earthworks before granting any consent - I have relied on the agreed without prejudice consent conditions in my consideration of this issue.

Canterbury Development Control Plan 2012

Canterbury Development Control Plan 2012 (DCP) applies and is considered relevantly in the evidence.

Issues

I can group the consideration of issues in contention into six: (1) neighbour amenity impacts, (2) internal amenity, (3) external presentation, (4) traffic and parking, (5) site adequacy, and (6) other matters. I deal with each now in turn.

Neighbour amenity impacts

There are two main areas of concern: (1) building massing related impacts (solar and visual) for the rear areas of the residences fronting Melford Street, and (2) privacy and visual impacts at 682-704 New Canterbury Road relating to the level 2 common open space and its treatment.

Melford Street

Section C7.6.1 of the DCP is concerned with "Solar Access and Overshadowing". The relevant objective is: "To minimise overshadowing of primary living areas and private open space."
The relevant policies controls are: "C6 Proposed development must retain a minimum of 3 hours of sunlight between 8.00am and 4.00pm on 21 June for existing primary living areas and communal rooms and to 50% of the principal private open space. C7 If a neighbouring dwelling or a boarding house currently receives less than 3 hours of sunlight, then the proposed development must not reduce the existing level of solar access to that property."
Mindful of the policy provisions from that DCP, the concerns with overshadowing are focused on 10 and 12 Melford Street which each receive less than 3 hours of sunlight on 21 June.
Mr Boutros noted the existing building elements which already shadowed these properties and believed that any redevelopment of the site would bring adverse overshadowing effects at 10 and 12 Melford Street, and thus non-compliance with the DCP. Mr Boutros indicated that the 2017 consent [5] would cast shadows "in excess of the current proposal" and opined (Ex 13, page 13): "Prevention of any additional shadow impacts will result in the sterilisation of 680 New Canterbury Road which is not considered a reasonable or intended outcome of the development controls."
Mr Swan worked with the solar access information which was available, notwithstanding its limitations, to flesh out the alignment of the proposal with the particular provisions of C7.6.1 of the DCP. He noted that diagrams were not available to assess solar access to primary living areas. The diagrams did show additional overshadowing in the afternoons at 10 and 12 Melford Street. Mr Swan used another DCP Control (C1.5.1-relating to dwelling houses) to infer that "35m2 of sunlight would be considered the minimum acceptable sunlight to meet the (50% of the principal private open space) control". 12 Melford Street would not meet that criterion. Mr Swan went on to suggest that a reduction of the proposal by a storey would bring about a more compliant development in regard to solar access, and also meet the DCP height plane controls (see below).
Relevant to the issue of building height, the visual bulk of the building, as perceived when viewed from the rear private open space at Melford Street, was raised as a concern. The Court had the opportunity to take a view from 12 Melford Street to gain an appreciation. Mr Swan's point was that the loss of a storey from the proposed development would have a considerable effect on the visual bulk when viewed from the rear of Melford Street.
A further concern in regard to visual impact was what was seen as an "industrial" visual presentation along the Wattle Lane frontage.

Consideration

The reasonableness or appropriateness of the proposed building envelope underpins the questions relating to amenity impacts at Melford Street.
There is a disagreement between the experts in regard to the appropriate control to apply to this boundary interface. The dispute involves the DCP building height plane controls.
The DCP setback objectives are: "O1 To establish the desired spatial proportions of the street and define the street edge. O2 To minimise building size and bulk by setting back upper storeys. O3 To minimise amenity impacts on adjoining properties. O4 To encourage increased setbacks along Canterbury Road to provide for possible future implementation of street parking and assist in reducing traffic noise impacts. O5 To allow for flexible design and building articulation by permitting minor encroachments."
The side setback controls are: "On boundary with residential zone - side setback C4 - Establish a 45o height plane projected at 1.5m from the residential boundary. C5 - Provide minimum 1.5m setback to the residential zone boundary. C6 - A two-storey limit on the boundary with residential zone applies." (Refer to Figure D1.1)
The DCP's Figure D1.1 is reproduced below: Figure 1 - DCP height plane as shown at Figure D1.1
There seem to be two points to the dispute. The first is concerned with the fact that Wattle Lane, which separates the site from the Melford Street properties is, itself, zoned R3 Medium Density Residential (ie the same zoning as the properties fronting Melford Street). The question is whether the "zone" boundary should be adopted literally as what I might call the origin line of the height plane control, or whether it is reasonable to adopt the actual residential boundary as the origin line for the interpretation of the DCP controls. The DCP indicates in Figure D1.1 a common "zone" boundary between residential and commercial, but also shows a residential dwelling as immediately adjacent to a commercial building.
While the specific zoning references in the DCP are noted, it seems to me that the point of this exercise is to set a standard for the spatial relationship where residences adjoin a proposed commercial development. A basic purpose is to "minimise amenity impacts" experienced at residences from a commercial development, and the relationship portrayed at Figure D1.1 can be assumed to provide an acceptable outcome under the DCP. This suggests to me that it is reasonable to adopt the residential property boundary as the origin line, rather than the zone boundary, in this instance. To do otherwise would mean, in a sense, that amenity impacts experienced at residential lands as a consequence of commercial development would be "minimised" to a level more than that established in the DCP. This is certainly no bad thing for affected residents, but it is achieved by placing an encumbrance on the adjacent commercial development. That is, an encumbrance over and above what would otherwise be seen as a reasonable development relationship between it and the adjacent residential land.
The second point seems to be in the interpretation of the diagram vis-a-vis the written controls. The diagram itself is easy to follow. It shows the starting point for the 45o height plane as being on the boundary. Control C6 indicates a "two-storey limit" and that it is "on the boundary". The height plane origin point scales at a height of 6m in the diagram. Control C5 then indicates a 1.5m minimum building setback from this side boundary.
I believe the diagram and the written provisions at C5 align with the DCP's Figure D1.1. The provisions at C6 establish at two-storey height limit "at the boundary" from which the height plane originates. But under C5 there is no building within the first 1.5m of the commercial site. The provisions at C4 are somewhat ambiguous, but I turn to the diagram for the interpretation of it. My interpretation of C4 is that the height plane only commences (as would make sense) at the building setback line of 1.5m.
The experts' interpretations of the height plane control applying to the side or Wattle Lane boundary is indicated in Figure 2 (with Wattle Lane and the Melford Street properties to the right in the diagram). Figure 2 - Interpretations of the DCP's height plane control applied to the proposal's side boundary (source Exhibit 4, p17)
The two heavier blue lines represent Mr Swan's interpretations with the interpretation of Mr Boutros indicated with a lighter dotted line to the right of Mr Swan's lines.
I disagree with the height plane lines as drawn by Mr Swan as shown in Figure 2. There is no justification in adopting an origin line for the height plane (ie the two-storey or 6m height point) at a position 1.5m on the commercial side of the boundary. The origin line, as indicated in Figure D1.1 of the DCP (and shown in Figure 1 above) is on the actual boundary. The height plane angles at a 450 gradient away from the residential receiver. As shown in Figure D1.1, by the time the 1.5m building setback position is reached the height plane is higher than the two storey or 6m control. I accept the height plane indicated by Mr Boutros (dotted lines) which indicates only a quite minor exceedance of the DCP standard at the side boundary. Figure 3 - Height plane diagram (Source: Exhibit 4, p 17)
In turn, and mindful of the Court's planning principle relating to zone interfaces (Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 [25]), it seems to me that the additional overshadowing that would occur during mid-winter is the type of impact that can be expected in a setting like this at the commercial residential zone interface. In this case, the fact of the relatively large existing covered areas in the rear open space 12 Melford Street, and the existing overshadowing at 10 Melford Street are pre-existing contributing factors to the position I adopt. The fact that the proposed building height is well within the existing height control is also a contributing factor in this decision.
The discussion of the height plane does not cover the question of external design and visual presentation to Wattle Lane which is considered later.

682-704 New Canterbury Road

A three-storey mixed use development is located at 682-704 New Canterbury Road immediately west of the site. There was a concern that privacy impacts might be experienced particularly for upper level units with balconies facing the subject site. The potential problem was noise annoyance and overlooking from common open space area at Level 2 of the proposal facing Canterbury Road.
In regard to acoustic privacy, Mr Cooper provided what presents as a considered analysis, including of the general acoustic environment of New Canterbury Road and a range of noise generation scenarios from the common open space area (Ex G). His findings, which include the analysis of mitigation treatment including acoustic screens, does not support the contention that there would be a detrimental reduction in amenity at 682-704 New Canterbury Road as a consequence of noise from the common open space. I accept Mr Cooper's analysis and find that acoustic privacy concerns in regard to the interface with 682-704 New Canterbury Road are adequately addressed.
There was agreement from the experts that visual privacy was addressed through screening.
The remaining concern is whether proposed 1.8m high opaque glass panelling, to address visual privacy concerns for neighbours to the west, is acceptable visually. I will consider this later when looking at the external appearance of the building.

Consideration

The relationship with 682-704 New Canterbury Road is acceptable with regard to acoustic and visual privacy.

Internal amenity

Council's primary area of concern here, after plan amendments, was in regard to the relationship between the communal open space and two of the rooms on Level 2 (the manager's room and Room 2.11).
I accept the evidence of Mr Boutros that there is an acceptable arrangement for separation between these rooms and the communal open space on Level 2 (Ex 13, para 3-4). The drawings now detail to a satisfactory level the screening and planter box arrangements, as well as landscaping planting itself. The plan of management includes a maintenance regime which is satisfactory.
I further accept that Council's contention in regard to whether the boarding rooms abutting the light well are afforded satisfactory visual privacy, while allowing reasonable sunlight access, has been addressed with the provision of 1.5m sill height windows and aluminium louvres along the corridor openings (Ex 13, para 6).

External presentation

Council contends that the external design is incompatible with the character of the local area, and should be refused in accordance with Clause 30A of the SEPP. There are two main viewpoints to consider: (1) presentation along Wattle Lane including from the rear of Melford Street, and (2) presentation to New Canterbury Road. A third consideration is in relation to the transition to the low density area to the east, which is under consideration for listing as a heritage conservation area.

Presentation to Wattle Lane

There is a concern in regard to the building massing as experienced by residential properties abutting Wattle Lane. According to Council's Written Submissions ('CWS', filed 3 April 2020, para 2.8(d)(i)): "Size and bulk is not minimised through a setback of upper storeys (only the top storey is setback), leaving a wall of four poorly articulated storeys adjoining the residential boundary…"
Highlight windows (required to address visual privacy) provide some relief but also contribute to the poor interface, according to Council's evidence.
The eastern side building height plane controls have been considered above, but there are also controls in regard to the rear boundary which also fronts Wattle Lane. Here again, Mr Swan and Mr Boutros disagree on the interpretation of the setback controls, which I will consider below.
There is also a concern about the presentation at the footpath level to Wattle Lane. Mr Swan puts it that (Ex 4, para 7): "The majority of the ground floor fronting Wattle Lane is taken up with either driveway crossings, fire stair access, garbage access, ground level parking behind grilles, blank brick work and in the latest plans provided during the joint conferencing process hydrant boosters, see below."

Presentation to New Canterbury Road

While it is not the only area of concern, the more particular concern of Council is in regard to the proposed opaque glass panelling required to address visual privacy concerns related to the communal open space on Level 2 of the building. The proposed screen landscaping is seen to be questionable in regard to viability and maintenance, and the overall responses to privacy concerns are "suboptimal" in regard to visual presentation.
More generally, Council's evidence is that the Canterbury Road presentation and the presentation of the building generally is as an out of place "institutional" building, failing the cl 30A test under the SEPP. As put by Mr Kondilios in closing submissions (CWS, para 2.8(i)): "The design of the development is not consistent with the "shop-top typology" in the B2 zone. As identified by Mr Swan, the "excessive use" of highlight windows, the tall opaque glass panels and suboptimal screen planting will look out of place on the building when considered against neighbouring properties, and do present an "institutional" façade (Exhibit 13, 20-21). That façade is one which can be starkly contrasted with the neighbouring residential and/or shop-top properties. This stark contrast, which would be apparent to the Court by reference to its own observations at the site view, places the proposal as entirely unsatisfactory with respect to clause 30A of the (SEPP)."

Consideration

Firstly, I turn to the building massing, and now with respect to the rear boundary. Mr Boutros seems to adopt the southern side of Wattle Lane as the equivalent of the zone boundary for the purposes of the DCP's rear setback provisions and Figure D1.2 of the DCP. At [31] I have explained my view in regard to the zoning of Wattle Lane and why, here, it is reasonable to accept the actual residential development boundary rather than the zone boundary as the point of interface as far as the interpretation of Figure D1.1 is concerned.
The DCP provisions in regard to rear setback are more ambiguous. A similar set-out to the DCP provisions for the side boundary is adopted, but there is not the same coherence between written controls and the diagram. Figure D1.2 is clear enough. It adopts a rear building line within a commercial development of 6m from the "zone" boundary. This aligns with Control C8. Control C9 indicates a two-storey height limit "at the boundary" (like Control C6) but Figure D1.2 shows the height plane commencing on the boundary at a point 1.8m high (without readily accessible explanation). I interpret Control C7 as indicating that the height plane only commences 6m from the boundary (regardless of its height at this point). Control C10 then provides that "a setback to a rear lane is not required". But there is no otherwise explanation. Where the boundary is a rear lane, it is not clear whether the height plane commences at the boundary at a height of 1.8m or "two storeys".
Both experts have adopted the 1.8m height control as shown in Figure D1.2, and in the circumstances I think it makes sense to follow this diagram in that respect. I do not understand why, but the origin line, where Mr Swan commences the 1.8m height plane, seems to be 6m from the property boundary on the site. Mr Swan's interpretation had previously been that the DCP control should be applied from the zone boundary, which would bring the building setback control to 6m within the property. But he would also need to consider the fact that control C10 indicates that "a setback to a rear lane is not required". A problem with the DCP is that it does not go further with regard to rear lanes.
Again I am comfortable with the position adopted by Mr Boutros with respect to the rear setback and height planes which generally accord with the DCP control.
Turning to the external finishes, there is common ground among the experts that the changes to the external design, with the amended plans, have addressed some of the concerns initially raised by Council. These include adoption of a banded face-brick finish for the three lower building levels, with the upper two levels finished with an aluminium clip-lock cladding.
The amended plans also show a considerable amount of landscaping to filter the viewing of the privacy screens. Mr Swan's concerns include the time which it will take to establish the planting and his uncertainties about continued maintenance. The revised management plan seems to account satisfactorily for such concerns and I am satisfied in regard to the proposed landscaping around the privacy screening.
Clause 30A of the SEPP requires me to take into consideration whether the design of the development is compatible with the character of the local area. I do accept that this building will not present as the same as the adjoining shop top housing, or of course the lower density residential development to the east. But the character of the local area is very mixed, when experienced from both New Canterbury Road and from Wattle Lane.
I agree there is a utilitarian character to the presentation to Wattle Lane at the pedestrian level, but Wattle Lane would be properly acknowledged as a service lane in my view, with this presentation not unreasonable.
The building would present in New Canterbury Road as something unusual but visually interesting, with reasonable levels of articulation and modulation of form, and some landscaping evident at the level 2 communal open space. To me this is not incompatible with the varied forms already present in the streetscape.
I also see the overall building massing, its bulk and scale, as commensurate with that intended by the controls. With this finding, I take some minor support from the fact of the 2017 approval which is not dissimilar in that regard.

Proposed conservation area

My finding that the external presentation to both Canterbury Road and Wattle Lane is satisfactory, allows me to also conclude that the proposal is satisfactory in regard to its implications in regard to the proposed conservation area to the east.

Traffic and parking

The contentions in regard to traffic and parking were mostly resolved to the satisfaction of the experts with amending plans.
A contention in regard to the use of car lifts remained. The proposal relies on two car lifts in order to access two levels of basement carparking. According to the applicant, the narrow site width would not practically allow basement parking via ramps; that is, without a lift.
Council's contention referenced Part B1.4.1 Control C20 of the DCP which specifies that: "Mechanical parking devices, including car lifts, will not be supported."
Mr Senior's evidence referred to the Council policy without giving a particular expert view on the acceptability of car lifts. Mr Varga supported the car lift arrangement, indicating that the purpose of the two lifts was to address concerns about reliability, which can be raised from time to time. His own view was that one lift was sufficient.
A consent authority has discretion in the application of DCP controls. Section 4.15(3A) of the EPA Act specifically provides for the flexible application of DCP provisions.
It is Part B1.1 of the DCP where objectives related to the control in question can be found. I reproduce them relevantly below: "O1 To provide adequate car, bicycle and service vehicle facilities for the building users and visitors, depending on building type and proximity to public transport. … O3 To minimise overflow parking and other traffic impacts in residential streets and neighbourhoods. … O5 To ensure vehicle facilities are compliant, functional and safe. …"
Relevant to the question of car lifts, I would interpret the objectives as seeking to ensure availability of adequate, functional and safe parking for building users, which also minimises external parking or traffic impacts (eg as a consequence of queues or overflow from parking areas).
Mr Kondilios examined Mr Varga on the question of potential for queuing. I was generally satisfied with Mr Varga's responses and that the proposed arrangements were satisfactory, with two lifts and some on-site waiting areas.
The other question was the underlying point in regard to reliability of the car lifts. Lift breakdown could bring about inconvenience to users, and result in external impacts such as queuing in Wattle Lane. There are three factors that cause me to adopt a position of satisfaction with the proposed arrangements. First is in regard to the dual lifts, which obviously offset the failure risk. Second is in regard to the capacity for cars to pass in Wattle Lane, that is to say the laneway is not so constrained or busy to suggest that a lift failure would bring some substantive traffic management concern. Of relevance here is the proposed road widening at Wattle Lane at the site's southern boundary recommended by the experts (Ex 5 para 11) and included as a condition of consent (Condition 3). Third is in regard to evidence, or lack thereof in regard to frequency of failure. Car lifts are in increasingly common use in inner metropolitan areas of Sydney, and it is reasonable to expect that by now evidence might be able to be brought forward if car lift breakdown was a common occurrence, or otherwise problematic.
A further point of difference, which arose with these experts, was the loading arrangement and parking for the ground floor commercial premises. I understood there to be two issues. The first was the possibility of the intended loading area being occupied by a patron of the commercial use. The second was that the intended loading area was too small.
Mr Senior's concern was with the commercial prospects for the commercial tenancy with the parking arrangements as proposed. Mr Senior indicated a redesign option which would allow for the larger loading area but reduce the number of parking spaces. In recognition of the relatively small area of the ground floor commercial development which is proposed (some 139m2), and the commonplace flexibility of approach to deliveries adopted in such scenarios, I am not inclined to accept Mr Senior's position. For the same reasons, I accept the evidence of Mr Varga that the parking and loading configuration is satisfactory (Ex 5 para 7-8).

Site adequacy

Council's contention was that the proposal was constrained by its narrow site width and small site area, and as a consequence did not adequately accommodate for the proposed density of the development and required number of off street car parking spaces.
Part D1.2.1 of the DCP prescribes a minimum frontage of 18m. The subject site has a frontage of 14.535 metres. The objectives overriding this control are: "O1 To ensure efficient vehicular access to parking and servicing and reduce driveway crossings. O2 To facilitate efficient building envelopes that achieve optimum density."
Mr Swan pointed to the two double-width driveway crossings on Wattle Lane as evidence that the objective O1 was not satisfied.
I have already considered the visual impact of the access driveways and other utilities from the viewpoint of Wattle Lane and adjoining residents to the east. My conclusion in regard to efficiency of vehicular access is similar. That is that Wattle Lane is appropriately seen as a service lane. One of its functions is to provide for access and services. For me the evidence does not suggest unacceptable traffic implications with the arrangements as proposed.
It is the case that things could be more efficient if the development site were wider or generally larger. Obviously this might mean less driveways and greater density (recognising objective O2 above). However, the fact that the site is existing and is limited by its own dimensions, including in regard to width, is salient here. Mr Swan noted that there was no evidence that negotiation had occurred with regard to the amalgamation with the existing mixed use development to the west (682-704 Old Canterbury Road). But the next door development does not present as out of date and is relatively substantial, certainly compared to pre-existing development on the subject site. It would be reasonable to adopt a default position that amalgamation would be highly problematic on that basis.
My conclusion on this point is that the fact of the pre-existing, and constrained, site width should not prejudice the proposal of itself. If it were to fail, it would need to be on the basis of evident consequences of this constraint. In this instance such consequences have not been demonstrated.

Other issues

Issues raised by the objectors not yet addressed are as follows: (1) general overdevelopment and its consequences, (2) construction and stability, and (3) parking including in relation to safety.
In regard to the first issue, I note that the development is permissible in the zone and generally aligns with the form of development intended with the current controls. It is reasonable to empathise with those unhappy with the change which has occurred in inner metro Sydney over the last few decades, and indeed it can be expected that changes to amenity have occurred. However, current policy has been established by government to meet wider metropolitan pressures while providing reasonable cushioning of local effects. Following a consideration of the evidence, in my judgment this cushioning has occurred with the particulars of the current application.
In regard to the second two issues I rely on the expert evidence which is satisfied in regard to parking and that conditions have been agreed which address construction stage requirements.
Further in regard to conditions I note that the parties have come to agreement, in the Council's case without prejudice, as to what conditions should apply in the instance that the Court were to approve the application (CWS, para 3.1). These conditions were tendered as Ex K in the proceedings.

Conclusion

Having considered the objections, evidence and submissions, I am satisfied that the amended proposal warrants approval.
Having considered the objections, evidence and submissions and having regard to the planning provisions applicable to this proposal, I am satisfied that with the design changes incorporated in the plans now before the Court, consent can be granted in accordance with the agreed conditions.

Orders

The orders of the Court are: 1. Leave is granted to rely on amended plans listed in Annexure A. 2. The Applicant is to pay the Respondent's costs in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is upheld. 4. Development Application No DA-201/2018 for demolition of existing structures and development of a five storey building, comprising: (1) a 48 room boarding house development, (2) commercial premises at ground level, and (3) associated two-level basement parking and ground level parking, at 680 New Canterbury Road Hurlstone Park, is approved subject to the conditions of consent at Annexure A. 5. The exhibits, other than Exhibits 2, A, J, K and P, are returned.

Commissioner of the Court Annexure A (217 KB) Plans (2.85 MB)

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: 20 May 2020

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Parties

Cases Cited (1)