El Cheikh v Liverpool City Council

The proposal

1. The application proposes:

• On the ground floor: seven separate areas shown as "commercial/retail" tenancies and communal space. On-site stormwater detention and basement access is also provided at the ground floor.
• On the upper levels: two × studio apartments, 16 × 1 bedroom apartments, and 25 × 2 bedroom apartments
• In the basement levels: 112 car spaces comprising 52 residential spaces, 10 visitor spaces and 46 spaces related to the retail and commercial tenancies, five motorcycle spaces and 18 bicycle spaces all across three levels of basement car parking. A total of five accessible spaces are allocated.
• Communal open space has been provided at the ground, first and third floors. Landscaping is proposed in each area. The communal space at the ground level provides for the retention of a large existing tree.

Planning provisions

1. The site is zoned B1 Neighbourhood Centre under the Precinct Plan. The proposal can be characterised as 'shop top housing', which under the Dictionary to the Precinct Plan, is defined as: … one or more dwellings located above (or otherwise attached to) ground floor retail premises or business premises.
2. This use is permissible within the Precinct Plan's B1 zone.
3. Under the Precinct Plan a height limit of 17m applies to the site. The proposal exceeds this control by 522mm (Joint Expert Planning Report, Ex 2, par 50). I consider a written request seeking to justify the contravention below.
4. There is no floor space ratio control (FSR) applying to the site under the Precinct Plan.
5. Clause 5.10 of the Precinct Plan is concerned with heritage conservation and comes up in evidence.
6. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies.
7. Liverpool Growth Centre Precincts Development Control Plan ('DCP') applies, with Schedule 1 concerned with Austral and Leppington North Precincts including the site. Part 3.1.5 provides controls specific to the Austral Neighbourhood Centre. Aspects of the DCP arise in the evidence and are considered relevantly below.

Hearing

1. The hearing was conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, which is intended to put into effect the State's public health orders regarding social distancing mindful of COVID-19. More particularly, the hearing was conducted as a "virtual court room" arrangement under the "Microsoft Teams" platform.
2. Relevant to this setting, it was noteworthy that some time prior to the hearing's listing, the Chief Judge had appointed me to conduct a conciliation conference into this matter under s 34 of the Land and Environment Court Act 1979. This conference included a site inspection on 12 August 2019. That is to say, I had the chance to inspect the site and its context prior to the hearing. At a case management conference before me on 18 March 2020, the parties agreed that evidence from the s34 conference, including oral submissions, could be used in the hearing.

Lay submissions

1. Council's ASOFAC indicates that the following issues were raised in lay submissions: "(a) lack of sewerage/stormwater/water infrastructure (b) traffic congestion (c) servicing of commercial units (d) traffic/pedestrian safety (e) noise impacts from Progress Hall (f) loss of trees (g) impacts on heritage buildings (h) restriction on use of Progress Hall (i) health and safety issues with adjoining service station (j) other centres would be more suited to this form of development (k) building out of place in this area (l) loss of privacy (m) lack of parking (n) traffic impacts on businesses (o) overshadowing".
2. An additional issue, raised orally at the site view, was whether Edmondson Avenue was of sufficient width to accommodate the proposed development.

Issues

1. For evaluation purposes, I can group the issues under contention in this matter into four headline categories: (1) building height, as a jurisdictional gateway, (2) heritage impacts, (3) building bulk and scale, and streetscape implications, and (4) other issues raised by objectors. In its closing submission filed on 21 May 2020 ('RCS'), Council provides for a similar grouping, providing links to the listed contentions (par 21).
2. I note here that the experts providing evidence in this matter are as listed in the table below: Expert Expertise For M Brewer Planning Applicants A Flynn Planning Respondent M North Heritage Applicants I Stapleton Heritage Respondent

Jurisdictional issue

1. As indicated previously, the applicable building height control in the Precinct Plan is 17m. The proposal has a building height of 17.522m at its highest point, contravening this development standard (Ex 2 par 50).
2. Clause 4.6(2) of the Precinct Plan provides (relevantly): Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument ...
3. The permissive power in cl 4.6(2) is subject to the restrictions in cl 4.6(3) and (4): (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained.
4. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [14]). The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard, in particular, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
5. I note here mindful of cl 4.6(4)(b) of the Precinct Plan, that there is no requirement for me to seek the concurrence of the Secretary (under s 39(6) of the LEC Act), but nonetheless I would mention that I do not see this matter as raising any matter of significance for State or regional environmental planning.
6. The applicants have provided a written request seeking to justify the contravention of the development standard, opening the door to the permissive powers of cl 4.6(2). The written request was prepared by Willana Urban and was dated 26 November 2019 (Ex 8, behind Tab 8)).
7. I note here that the expert's found in the course of joint conferencing that the actual building height was 17.522m, making for a height contravention of 0.522mm. The prior position adopted in the application was that the building height was 17.5m. The written request refers to a height contravention of 0.5m. While no issue has been raised by Council in regard to this minor discrepancy, for the record I mention that in the circumstances it should be regarded as de minimis.

Whether compliance is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of the Precinct Plan)

1. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'), Preston CJ, summarised the common "ways" in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The written request provided on overview of each of the five Wehbe ways (p16-17), but concentrated, relevantly, on the first Wehbe way. That is, demonstrating that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
2. The objectives of the height standard as nominated at cl 4.3(1) of the Precinct Plan, are as follows: (a) to establish the maximum height of buildings, (b) to minimise visual impact and protect the amenity of adjoining development and land in terms of solar access to buildings and open space, (c) to facilitate higher density development in and around commercial centres and major transport routes.
3. The written request suggests the first objective (objective (a)) is concerned with the "underlying objectives" of the height standard which, so the written request posits, is about managing the "scale" of buildings to minimise impacts. That is to say, the response to the first development standard objective goes to the topic of adverse impacts, with the proposal not seen to offend in that regard.
4. I understood Mr O'Gorman-Hughes' position to be that it was clear that objective (a) was not met, in a sense on its face, because "the development exceeds the maximum height set, contrary to objective (a)" (RCS, par 30). In turn the argument was that the written request had failed on that front.
5. In my assessment, the first objective is a special kind of development standard objective. Preston CJ considered development standard objectives of this kind in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ('Baron') and found the type of objective to be "explanatory of the purpose of the … development standard" (Baron at [32]). As put by Preston CJ (Baron at [49]), this first objective explains the means used to achieve the ends nominated in the second and third objectives.
6. It seems to me that the quest of establishing that compliance with a development standard is unreasonable or unnecessary under the first Wehbe way (objectives of the standard achieved notwithstanding the contravention), does not require a written request to especially entertain explanatory objectives of this kind. Logically, a contravening application does not come into conflict with an explanatory objective. It follows that if the primary test here is the written request's demonstration of the reasonableness and necessity of conformance with a standard (with the Wehbe ways identified as a means demonstrating this), there is no requirement for the written request to demonstrate a kind of anomalous achievement of explanatory objectives of this type. The first objective is already achieved with the height controls established in the Precinct Plan and cannot be threatened by this contravening application. While the written request's explanatory background is not pertinent, its phrasing "not compromised" (p18) does coincidentally explain the situation with regard to the relationship between the proposal and objective (a).
7. In regard to the second objective, the written request indicates that the height breach occurs on the lift overruns only. They are located centrally within the development floorplate, rather than close to the external building walls. It is indicated that due to the positioning of the lift overruns the breaches of the height limit will not be visible from the street. It is also indicated that shadows cast by the contravening areas are within the shadows cast by other complying components of the building. I am satisfied that the written would request demonstrates that the second objective is achieved.
8. In regard to the third objective, the written request indicates that the proposal by its nature and location satisfies the objective. It notes that the achievement of the objective is not dependent on the minor height variation of the proposal. I agree and am satisfied that the written request demonstrates that the third objective is achieved.
9. The written request adequately establishes that compliance with the development standard would be unreasonable and unnecessary in these circumstances (cl 4.6(3)(a) of the Precinct Plan).

Sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of the Precinct Plan)

1. The written request also adequately establishes that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of the Precinct Plan). A number of reasons are cited, but for me the most pertinent are: (1) the relatively small scale of the contravention, (2) the fact that the contravention itself does not bring adverse effects (including in regard to heritage conservation impacts), and (3) that the contravention is a result of what is argued (otherwise) as a deliberate development solution which meets "orderly and economic development" ambitions for the site (mindful of the object of the EPA Act nominated at s 1.3(c)), while meeting streetscape character ambitions (including in regard to front setback) and without prejudicing future amenity impacts.
2. As a consequence of my findings above, I am satisfied that the applicants' written request has adequately addressed the matters required to be demonstrated under cl 4.6(4)(a)(i).

Considering cl 4.6(4)(a)(ii) of the Precinct Plan

1. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the B1 Neighbourhood Centre under the Precinct Plan. The matters raised in the written request (as considered above), are sufficient for me to be satisfied that the development is consistent with the objectives of the height of building standards.
2. The B1 Neighbourhood Centre zone has a single objective as follows: To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
3. I believe the proposal is consistent with this objective in that the proposal itself provides for small-scale retail and business uses. The ground floor plan (Ex 6, Sheet DA08) indicates some seven smaller scale tenancies to be used for commercial or retail uses.
4. The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of Precinct Plan are met.
5. The states of satisfaction required by cl 4.6 of the Precinct Plan have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

Heritage conservation impacts

1. Council contends that the proposed development would "result in an adverse impact on the setting of at least two heritage items and on the HCA, as it does not seek to maintain an appropriate visual setting" (ASOFAC, par 4). The suggestion is that it is the "form, scale, massing and character of the development" which brings about the impact (ibid).
2. A central issue for this evaluation is what should be made of the existing planning setting; which on the one hand, might be seen as establishing certain heritage conservation impositions in regard to development of the site, and on the other, might be understood to position the site for development of some intensity (through various development standards in relation to such things as "form, scale, massing and character"). Below I introduce the policy provisions in relation to heritage conservation. Because of certain inter-relationships relevant to the evaluation, I also introduce some of the broader controls applying to the site.

Policy provisions

1. Clause 5.10 of the Precinct Plan relevantly provides: (2) Development consent is required for any of the following- … (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area … (4) the consent authority must, before granting consent under this clause in respect of a heritage item or a heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned
2. Clause 2.1 of the applicable Schedule 1 of the DCP presents a "precinct planning vision".
3. One of the DCP's nominated objectives with respect to the Austral Neighbourhood Centre is (cl 3.1.5(c)) is: To protect and enhance the heritage character of parts of the Neighbourhood Centre and maintain the village character.
4. The controls in this section of the DCP (ie relating to Austral Neighbourhood Centre) include: "7. New buildings on the western side of Edmondson Avenue are to be set back to match or be greater than the setbacks of existing heritage buildings ... 8. Elements of built heritage which contribute to the overall heritage significance of the Austral Town Centre Conservation Area (contributory items) should be retained. 9. The principal built form of contributory items, including roof lines, street-facing and side elevations, door and window-openings should be retained. Minor alterations that do not have a significant impact on the architectural form and character of the original building may be permitted. 10. Infill development should be of a modern design, which responds sympathetically to the historic character and setting of the Austral conservation area, and to the form, scale, massing, orientation and setback of its contributory items. Where possible, new infill buildings should address the street. 11. Infill development should not overwhelm the contributory items within the Austral conservation area, in height or massing. A maximum of two storeys on the street-facing elevation is appropriate, with taller elements of buildings to be set back behind the primary building line facing Edmondson Avenue. 12. Infill development or additions may be permitted at the rear of contributory items, where the design will achieve an aesthetically cohesive relationship between new and old, and the proposal is consistent with the character of the site and the broader conservation area."
5. Figure 3-6 of the DCP shows the "desired future layout" of the Austral Neighbourhood Centre. An excerpt from it is reproduced below. Figure 2 - Excerpt from Figure 3-6 of DCP indicating "desired future layout" of Austral Neighbourhood Centre (as a marker, the arrow point to the text "minimum 10 metre building setback" is located near the eastern boundary of the subject site).

Evidence

1. There was a significant level of agreement on the part of the heritage experts in regard to the impacts of the proposal on the two adjacent heritage items.
2. In regard to the HJ Starr Progress Hall, the experts agreed that (Ex 11, p4): "… the H.J. Starr Progress Hall is largely of social significance and the construction of a large building directly adjacent will not affect those values."
3. There were also points of disagreement in regard to this item, with Mr Stapleton indicating (ibid): "The size of the proposal will reduce the apparent visual prominence of the HJ Starr Progress Hall] within the Edmondson Avenue streetscape and the Conservation Area. Although not particularly prominent, the HJ. Starr Progress Hall is the only and largest community building in the shopping precinct."
4. On the other hand, Mr North indicated (ibid): "(he) does not believe the Hall has much visual prominence as it was designed as a meeting hall not designed to address the public domain and the proposed building for the Site is set back from the street frontage."
5. In regard to the item located to the south of the site (Ian's Hardware and House), there was agreement among the experts (ibid): "… a number of the values identified in the Statement of Significance … are now compromised. …the historic use of the place as a general store is no longer apparent but is still capable of building interpreted as such in the future. The significance of the place is considered to be slight and no new adjacent development could compromise it further."
6. The experts also considered the proposal's impacts on the HCA. The Austral and Leppington North Precincts - Historic Heritage Project Report (Ex 12) provided a statement of significance for the HCA, as follows: "Austral Town Centre Conservation Area is an intact grouping of residential, commercial and community buildings, historically associated with the family of Emma And H G Starr, Austral Postmaster in the early to mid twentieth century. The grouping has aesthetic value, insofar as it incorporates a representative sample of vernacular architecture of the southwest Sydney region, including three fibro houses of various styles, all constructed between 1938-39 and 1965. These building forms will become increasingly rare as the area is developed as part of the SWGC. The building styles are complementary in their character and scale and illustrate a range of functions important to the town as it developed in the mid-twentieth century, including the general store, Progress Hall, and post office."
7. In their written evidence the heritage experts agreed that the HCA contained "two examples of Austerity Style, mid-20th century bungalows" (located immediately south of Ian's Hardware and House). They were referenced in evidence as the "Thai Massage Parlour" and "Post Office". A better example of this building type was suggested by Mr Stapleton to be nearby but outside of the HCA. There was agreement that it would be inappropriate to "relate" the proposed building to these small bungalows. However, Mr Stapleton believed (Ex 11, pp5-6): "(the) form of the proposed building could have been improved and more sympathetically designed if it included fewer storeys, used pitched roofs, was not built to the min side setbacks and avoided blank walls and high solid fencing along the side boundaries (and) … could have taken design cues from … the nearby Austral Public School."
8. Mr North believed "concessions have been made to heritage considerations largely in terms of the setback of the Proposal from the street boundary." The experts agreed (Ex 11, p6): "Planning controls for the Austral Neighbourhood Centre are generally inconsistent with the Iong term preservation of the Austerity Style, mid-20th century bungalows within and adjacent to the Conservation Area. The proposal has been designed to meet the numerical and other planning controls rather than in sympathy with the form and scale of the Conservation Area."

Consideration

1. Clause 5.10 of the Precinct Plan requires me to "consider the effect of the proposed development on the heritage significance" of in particular the two adjacent heritage items and the HCA.
2. It is reasonable to conclude that the proposal does not bring unreasonable adverse effects in regard to the two listed items. In regard to the H.J. Starr Progress Hall this is because its listing is largely associated with its social significance, and the experts agree that the proposed building would not affect social significance related values (at [1]). The significance of Ian's Hardware and House is seen to be slight due to the extent that the item has been compromised to date, and the adjacent development could not compromise things further, according to the experts.
3. The key "consideration" becomes the effect on the HCA, with points of attention in the DCP including whether the development "responds sympathetically to the historic character and setting" (cl 3.1.5 - Control 10) and "does not overwhelm the contributory items … in height or massing" (cl 3.1.5 - Control 11). When considering historic character and setting, I am not inclined to focus on the impacts on the Thai Massage Parlour and Post Office alone, but rather the whole of the (albeit small) HCA, including listed and contributory items.
4. Mr Stapleton sees significant historic character in the site environs. His view is that tall elements of development on the subject land should be setback "as far as possible", with the weight of the building away from Edmondson Avenue, so that there is less prospect of new development overwhelming what there is left in the HCA of heritage value. For Mr Stapleton, the proposed building form ("could be designed for Parramatta Road") is seen as a further failing in regard to the question of responding "sympathetically".
5. Mr North's position is that the HCA brings relatively low community value in terms of its historic character. His argument is that the setting lacks coherence and integrity.
6. My conclusion is to generally support this position of Mr North insofar as it is relevant to the consideration of the potential for the proposal to impact adversely in a physical sense. There are a number of reasons for this. First is to just acknowledge that, as agreed in evidence, the social significance of HJ Starr Progress Hall remains (that is, notwithstanding the proposal). Second is to again acknowledge the agreed evidence in regard to the extent of loss of integrity of Ian's Hardware and House in heritage terms, already.
7. My third reason takes me to what is left of physical pertinence in heritage conservation terms once these first two reasons are taken into account. Mr Stapleton places significant value on the Thai Massage Parlour and Post Office (which were not seen as appropriate for listing of themselves in the foundational work), and more value again on a building outside the HCA (something Mr North agrees with Ex 11, p5). However, it seems to me that Mr North's position is more compelling on the physical evidence when he posits the lack of coherence and integrity of the HCA. Things might have been different, for example, if Ian's Hardware and House had not fallen into its current state. However, the actual setting helps me with the consideration of weighting, noting that heritage is one consideration among many, and needs to prove itself on merits if it is to be a determinative consideration. That is to say, requirements to "respond sympathetically" or "not overwhelm" should be seen as relative terms, needing to be considered in concert with other planning controls applying to the site.
8. My fourth reason takes me to the planning controls. Here I agree with Mr North and Mr Eastman, insofar as his closing submissions are concerned. The controls could say more about setting back the building massing from Edmondson Avenue and do not. That is, Figure 3-6 of the DCP is quite explicit, making specific reference to setback requirements including with reference to diagrams of the heritage items and contributory items. The proposal complies with the requirement. The Precinct Plan controls, in particular the height control (17m) applying to the site environs (with a 12m height limit surrounding this area) should reasonably be seen as representing general development expectations. I agree with Mr Stapleton that the Precinct Plan does not provide for an entitlement to the 17m building height over the site. But without coherent otherwise provisions, in the DCP for example, to counter the Precinct Plan control, the height control has considerable weight. In this case the DCP does no such thing, and as indicated above, my opinion is that the empirical evidence of heritage conservation value is relatively weak.

Bulk scale and impacts on the streetscape

1. The experts essentially agreed that the key contentions on this topic, and having given due consideration to the Apartment Design Guide (given the application of SEPP 65 to this matter) as well as DCP controls, are in regard to: (1) building bulk and scale related impacts on the two adjoining heritage items and HCA (in its streetscape setting) (Ex 2, par 19), and (2) visual privacy impacts (Ex 2, par 47).
2. The Court's planning principle in regard to the assessment of height, bulk and scale, established in a judgment by former Senior Commissioner Roseth (Veloshin v Randwick Council [2007] NSWLEC 428 ('Veloshin') at [32]-[33]), was a key point of attention in cross-examination of the planning experts and in closing submissions.
3. An excerpt from the planning principle contained in Veloshin is provided below, (for reference purposes alone I number each of the "questions" nominated by Roseth SC in his judgment from "Q1" to "Q5"): Planning principle: assessment of height and bulk The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: (Q1) Are the impacts consistent with impacts that may be reasonably expected under the controls? … (Q2) How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls? Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are: (Q3) Does the area have a predominant existing character and are the planning controls likely to maintain it? (Q4) Does the proposal fit into the existing character of the area? Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: (Q5) Is the proposal consistent with the bulk and character intended by the planning controls? … (The judgment notes: "the above questions are not exhaustive; other questions may also be asked").
4. In Veloshin, four criteria are identified as relevant to bulk and scale: height, floor space ratio, site coverage and setback controls. If the question of the proposal's height non-compliance is set aside, it was useful for the Court to understand that the experts agreed that the proposal was consistent with the otherwise applicable numerical controls (noting oral evidence of Mr Flynn, and submissions in the Applicants' Closing Submission (ACS), par 38 and RCS, par 51). I do note of course there is no FSR control. What is somewhat important to understand is that the proposal does not breach the numerical setback controls.
5. In regard to Veloshin's Q1 and "impacts", the question of heritage impact is a central consideration. I have given consideration to this above. My favourable finding, has much to do with what I see as the relatively weak evidence of heritage conservation value, notwithstanding the listings. I do not believe the building height impacts unreasonably, and specifically I do not believe the height contravention can be seen to bring adverse heritage conservation effects due to its location and minor nature. I note that Council did raise a point in regard to visual privacy, which it saw as readily manageable through a condition of consent (RCS, par 22).
6. In regard to Veloshin's Q2, and mindful of the findings in regard to height above, the proposal can be seen as relating satisfactorily to the height and bulk parameters established in the applicable controls.
7. Q3-Q5 in Veloshin are concerned with "character". In setting up a test under Veloshin, there was a point of difference between Mr Eastman and Mr O'Gorman-Hughes. This was on whether the setting was one "(where) the planning controls are aimed at creating a new character", as suggested by Mr Eastman; or whether the controls were concerned with both this and "preserving the existing character" as suggested by Mr O'Gorman-Hughes.
8. I agree with Mr O'Gorman-Hughes that the planning controls are aiming to do both. But for me Veloshin also shines a light on the difficulties with the arguments favouring heritage conservation in this dispute. As indicated above, the evidence is not well made out that the setting, and even the HCA, has a "predominant existing character".
9. Further to the above, and in recognition of the parties' position that bulk, scale and streetscape impacts are essentially related to the heritage impact question, my findings on these issues go the same way as my findings for the heritage impact question. That is, favourably for the application, noting the capacity to address the question of visual privacy raised by Council by way of conditions.

Other issues

1. The lay submissions were grouped into 15 issues at [18]. A number of the issues were contentions raised by Council and have been addressed directly above (heritage conservation impacts, privacy). The following, what I might describe as, "technical issues" were raised in lay submissions: infrastructure and services, traffic congestion, parking, traffic and pedestrian safety, overshadowing, tree loss, noise impacts and safety risks. I need to acknowledge such issues as typical technical assessment considerations for a council in its development assessment role, which can be expected to be adequately addressed through analysis by relevant specialists. In this instance I am satisfied that these issues are satisfactorily addressed based on the fact that they are not or, in some instances no longer contested by Council (such as in regard to tree loss and overshadowing) as a consequence of amendments to the application.
2. In regard to submissions suggesting the development would be more suited elsewhere and would look out of place, I need to acknowledge the planning setting applicable to the site. That is to say, the site and environs have been earmarked for quite intense development. It is an unavoidable consequence that the early stages of this land use transformation will bring about settings where there is considerable visual disparity between buildings.

Conclusion

1. For the reasons outlined above it is appropriate to grant development consent to the application.
2. Prior to the hearing, Council had filed draft conditions of consent, without prejudice, and the applicants had filed response conditions, modifying Council's earlier draft on a number of points. In its closing submission, Council indicated that it agreed with most of the applicants' modifications (RCS, par 56) and that a further set of consolidated conditions would be filed. I have not been able to locate these consolidated conditions on the Court's file.
3. A more particular point is that Council raised a concern about privacy impacts in its closing submission, which it indicated could be addressed through consent conditions (RCS, par 22). The particulars of this were not able to be addressed satisfactorily in the proceedings.
4. In the circumstances, it is now appropriate for the parties to confer and endeavour to agree to amendments which address both the particulars in regard to privacy, and the queries raised by the applicants in regard to Council's original without prejudice conditions. Upon receipt of the amendments final orders will be made. The directions below allow opportunity to settle outstanding matters should they arise.
5. The Court directs that: 1. The parties are to confer in regard to final conditions and/or plans with a view to finalising an agreed position in regard to matters referenced at [80] and [81]. 2. If an agreement is reached on amendments referred to in (1) above, documentation is to be filed with the Court before 4:00pm on 14 July 2020. 3. If no such agreement is reached, the parties are to lodge Online Court communications as soon as practicable, and before 4:00pm on 15 July 2020, setting out positions in regard to matters in dispute, and agreed available dates for a further court mention should that be required. 4. Liberty to restore is granted on two days' notice.

Addendum made on 22 July 2020

1. In accordance with the directions in paragraph [83] of my judgment delivered on 30 June 2020, the parties have provided me with a copy of agreed draft conditions of consent, which resolve the conditions previously in dispute and include a reference to the privacy issue considered at [81]. I am now satisfied that consent can be granted in accordance with them.
2. Accordingly, the final orders of the Court are: 1. The applicant's written request under clause 4.6 of Appendix 8 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 is approved. 2. The appeal is upheld. 3. Development application DA-1242/2015 seeking consent for a five-storey mixed-use development comprising seven retail tenancies on the ground floor and 43 residential units above with three levels of basement parking, at 260 Edmondson Avenue Austral, is approved subject to the conditions set out in Annexure A. 4. Exhibits returned with the exception of Exhibits 6, 7, 8 and 9.

Commissioner of the Court Annexure A (317322, pdf) ********

Amendments 22 July 2020 - See Addendum for final orders at [84]-[85]. 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: 22 July 2020