Emag Apartments Pty Ltd v The Council of the City of Sydney

Land and Environment Court (NSW)|2021-12-01

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA/2021/304) by the City of Sydney Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks development consent for alterations and additions to an existing building, including demolition and construction of a eighteen-storey boarding house containing 384 boarding rooms, ground floor retail, podium car parking, two levels of basement with pool, ancillary storage, plant and garbage rooms and 392 bicycle parking spaces. The development is proposed at 93-105 Quay Street, Haymarket (Lot 2 DP 408335).
The appeal was subject to conciliation on 24 August 2021 (s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached, and conciliation was terminated. The proceedings were dealt with as a hearing.
Following the conciliation, in October 2021, the Applicant lodged an amended development application on the NSW Planning Portal. The Applicant was further granted leave to rely on further amended architectural and landscape plans during the hearing. These plans were principally responsive to the joint conferencing of the experts in the proceedings. The parties made an agreed submission that the amendments to the development application were more than minor: this triggers the obligation upon the Court to order payment of Respondents costs thrown away pursuant to s 8.15(3) EP&A Act. I accept the agreed submission of the parties that the three components of s 8.15(3) are made out, namely that the development application has been amended, the amendments are more than minor and that costs have been thrown away by the Respondent as a result of the amendment.

Issues

Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal on the basis that: 1. Owners consent has not been provided for the works (demolition) proposed on the southern boundary wall on Level 3 of the development. 2. The development application lacks sufficient information required for the Consent Authority to form an opinion that the development exhibits design excellence. 3. That the following merit issues warrant the refusal of the development application: 1. The amenity of the indoor communal area on Level 3; 2. The amenity of the outdoor communal areas provided on Level 16 and 17, given the potential for these areas to be affected by wind; 3. The appropriateness of the boarding room design, in particular their layout and the provision of storage and facilities. 4. Whether the development is sufficiently certain. 1. Whether the cumulative effect of the matters at [3] mean the Court cannot be satisfied that the development exhibits design excellence.

The site

The subject site is located at 93-105 Quay Street, Haymarket. The site is currently occupied by an 18-storey mixed use building which contains serviced apartments, ground level retail premises and two levels of basement carparking. Vehicular access to the basement is via an existing driveway off Quay Street.
The existing building is not a heritage item and is not located in a heritage conservation area.
The site is located within 350m of Central Railway Station and the surrounding land uses are predominately commercial, retail and mixed-use residential development. Directly adjoining the site is a 16-storey building used for student accommodation.

Public Submissions

The development application was notified by the City of Sydney Council in April and May 2021. No submissions were received in response to the notification. No members of the public sought to address the Court at the commencement of the hearing.

Expert evidence

The Court was assisted by town planning experts, Mr Jeff Mead for the Applicant, and Mr Chris Ashworth for the Respondent, and urban design experts Mr Alan Cadogan for the Applicant, and Ms Julia Pressick for the Respondent. The joint report of these experts was tendered as Exhibit 2 in the proceedings. In addition to their joint report the experts were called for cross examination.
The Court was also assisted by traffic experts, Mr Paul Corbett for the Applicant, and Mr Asif Ahmed for the Respondent. The joint report of these experts was tendered as Exhibit 4 in the proceedings. The experts were not required for cross examination.
The Court was also assisted by landscape architecture experts, Mr Paul Scrivener for the Applicant and Ms Kate Yates for the Respondent. The joint report of these experts was tendered as Exhibit 3 in the proceedings. The experts were not required for cross examination.

Preconditions to the grant of consent

Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for a residential purpose. Further, the Class 1 Application contains a validation report referrable to the construction of the existing building which concludes in part that 'the site presents no risks to human health, the environment or the aesthetic enjoyment of the land and is suitable for the proposed mixed commercial/residential land use' (Exhibit C). With regard to the consideration required at cl 7 of State Environmental Planning Policy 55 - Remediation of Land, I accept that the likelihood of contamination is low.
The development application was lodged with a BASIX Certificate that satisfied the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Environmental Planning and Assessment Amendment (Housing) Regulation 2021 came into effect on 26 November 2021. It amended the definition of a 'BASIX affected building' to specifically not include boarding houses. As such no amended BASIX certification is required.
Clause 104 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to traffic-generating development specified in Column 1 of the Table to Sch 3 to the Infrastructure SEPP: cl 104(1). The proposed development triggers the requirements of cl 104 as: firstly, the site is within 90m of an intersection with a classified road; and secondly, the development is for the purpose of residential accommodation (boarding house) where in excess of 300 rooms are proposed. Accordingly, cl 104(3) of SEPP Infrastructure provides that before determining the application, the consent authority must: (3) Before determining a development application for development to which this clause applies, the consent authority must - (a) give written notice of the application to TfNSW within 7 days after the application is made, and (b) take into consideration - (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including - (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development.
In early December 2021 the Respondent referred the development application to Transport for NSW (TfNSW). On 6 December 2021 TfNSW responded by letter and relevantly concluded that, "Considering the proposed location, type of development, access to public and active transport, TfNSW raises no objection to the development as the proposed car parking rates will cater for the inevitable demand for car parking need generated by future residents but will not have adverse impact on the classified road network." In determining the development application, I have taken into consideration the correspondence from TfNSW. As such cl 104(3)(a) and 104(3)(b)(I) of SEPP Infrastructure are satisfied.
The Council and TfNSW were both satisfied of the matters in cl104(3)(b)(ii) of SEPP Infrastructure concerning the accessibility of the site and those concerning any potential traffic safety, road congestion or parking implications of the proposed development. The Council raised no issue concerning these matters. Further, in relation to the merit considerations at cll 104(3)(b)(ii) and (iii), the Applicant has prepared a Traffic Impact Assessment prepared by PDC Consultants. I have considered this assessment and the joint expert report of the traffic and parking experts prepared by Mr Corbett and Mr Ahmed, dated 22 November 2021. I am satisfied that the accessibility of the site, and any potential traffic safety, road congestion and parking implications for the proposed development, will be acceptable.
State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment SEPP) applies to the subject site as it is identified on the Sydney Harbour Catchment Map. The site is not identified as land within the Foreshores and Waterways area, as a strategic foreshore site, as a heritage item or as land within the wetlands protection area. As a result only Pt 1 of the instrument is applicable. In determining the development application, I have given consideration to planning principles for the Sydney Harbour Catchment and I accept the joint position of the parties that the relevant principles set out in the Sydney Harbour Catchment SEPP are sufficiently addressed.
Pursuant to Sydney Local Environment Plan 2012 (LEP 2012), the site is zoned B8 Metropolitan Centre zone. Boarding houses and retail premises are permissible with consent in the B8 Metropolitan Centre zone. As required by cl 2.3(2) of LEP 2012, in determining the development application I have had regard to the following objectives of the B8 Metropolitan Centre zone: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.
Demolition is permitted with consent: cl 2.7 of LEP 2012.

Should the maximum height standard be varied?

Pursuant to cl 4.3 of LEP 2012, the subject site has a maximum height of buildings of 50m. The following parameters of the existing building are relevant: top of the lift overrun has a maximum height of 60m (RL 64.95); main roof has a maximum height of 58m; and the existing parapet has a height of 56.4m (Exhibit C). The development proposed a variation to the maximum height control of a maximum of 2.45m, being the existing lift overrun. Development consent for development which contravenes the development standard can only be granted if the consent authority is satisfied that the preconditions at subcll 4.6(3) and 4.6(4) of LEP 2012 are met.
Given the requested variation, development consent cannot be granted except in accordance with cl 4.6(2) of the LEP 2012. Clause 4.6 provides, at (3) and (4): 4.6 Exceptions to development standards … (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. …
It is clear from a reading of cl 4.6 of LEP 2012 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility, in this case to the height standard, by demonstrating that the breach of the development standard is justified.
The objectives of the height development standard at cl 4.3(1) of LEP 2012 are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square- (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces
The Applicant has filed a written request to vary the maximum height control pursuant to cl 4.6 of LEP 2012. This request accords with the amended plans and seeks a variation to the height development standard.
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe').
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action'), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
The written request argues that compliance with the maximum height standard is unreasonable or unnecessary as the proposal complies with the objectives of the height standard. (Wehbe test 1).
I reviewed the request and in accordance with cl 4.6 of LEP 2012, I am satisfied that the written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance. I am satisfied that the reasons detailed in the written request met the objectives of cl 4.3 of LEP 2012, in particular the prevalence of existing buildings in the context that exceed the height standard, the setback of the new work from the adjoining heritage item at 169-179 Thomas Street, the lack of impact on views and the achievement of height transition given the specific built form of the locality:(subcl 4.6(3)(a) of LEP 2012);
In Initial Action at [24], Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environment planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the Height standard. I am satisfied that the grounds detailed in the written request are environmental planning grounds, they arise from the variation and are sufficient to justify the contravention of the development standard: (subcl 4.6(3)(b) of LEP 2012). On the preceding basis, I am satisfied that the requirements of subcl 4.6(4)(a)(i) of LEP 2012 are met.
For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the B8 Metropolitan Centre zone (see [20]) and the Height development standard. On this basis, I am satisfied that the requirements of subcl 4.6(4)(a)(ii) of LEP 2012 are met. Pursuant to subcl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.
The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the Height standard.

Does the development vary the applicable maximum FSR?

Pursuant to cl 4.4 of LEP 2012, a base floor space ratio (FSR) of 7.5: 1 applies to the subject site. However, pursuant to cl 6.4(1)(g): Accommodation Floor Space, the site is in an area, and is proposed to be used for a purpose, that provides for an additional FSR of 1.5:1. Further, pursuant to cl 6.4(2), that additional floor space is reduced proportionate to the amount of the development used for the designated purpose, in this case residential. Finally, as the proposed development will reduce the provision of carparking on the site, additional FSR is applicable pursuant to cl 6.5 of LEP 2012. The experts agree that the result of the application of these clauses is a maximum FSR applicable of 9.045:1 (Exhibit 2).
Pursuant to cl 4.4(2) of LEP 2012, the FSR for buildings on the land cannot exceed the FSR contained on the Floor Space Ratio Map. Development consent for development which contravenes the development standard can only be granted if the consent authority is satisfied that the preconditions at cll 4.6(3) and 4.6(4) of LEP 2012 are met.
The town planning experts disagree as to the application of the gross floor area (GFA) definition to the proposed development. The GFA for a proposed development is calculated in accordance with the definition contained in LEP 2012, as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
Relying on the evidence of the town planning experts in their joint report, the areas of the proposed development where there remains a dispute in relation to the application of the GFA definition are:

The 'communal outdoor area' on level 3
The area designated as waste rooms on all residential levels.

The Respondent accepts that the development application applies the GFA definition correctly for the remaining areas detailed in the contentions.
Mr Ashworth argues that the outdoor communal area on Level 3 should not be excluded from the GFA calculation. He argues that it should be included in the GFA of the proposed development for the following reasons:

In circumstances where the planning controls allow the adjoining sites to build to the boundary, there is a risk that the outdoor area will be enclosed.
None of the adjoining sites are burdened by easements that benefit the subject site by preserving access to light and air for the level 3 communal open space.
There is no certainty that the communal open space will retain the outer walls less than 1.4m high in perpetuity.
(Exhibit 2)

In regard to the waste rooms on the residential levels, it is Mr Ashworth's evidence that these constitute GFA as they do not fall into the exclusions at (e) or (f) of the definition. Specifically, they are not waste rooms located in the basement or plant rooms.
In the alternative, Mr Mead argues that both areas are appropriately excluded from GFA on the following grounds: "d) the 'outdoor communal area' on Level 3 (370sqm) is excluded as the areas is open on the northern and western sides, and is also open on the southern side pending the outcome of the Contentions relating to owner's consent. Even in the event that owners consent is not provided on the southern side, the outdoor communal area is excluded as the walls to the internal common area are the external walls of the building. The area beyond these is not weather protected. The openness of this area is detailed on the elevations with large punctuated openings with open palisade balustrades between the structural columns. e) the areas of the waste rooms on all levels is excluded as these are "used exclusively for mechanical services" being the disposal of waste into mechanical waste chutes. There is no other purpose to the area of the chute or platform on which one would stand to place items in the chute. Otherwise, the waste rooms would satisfy exclusion (h) under the GFA definition, being 'space used for the loading or unloading of goods (including access to it)", being the unloading of waste into the chute." (Exhibit 2)
The role of the consent authority is to assess and determine the development the subject of the development application: s 4.15 of the EPA Act. Whilst I understand the evidence of Mr Ashworth applying the GFA definition to the proposed development, I am satisfied that the evidence of Mr Mead is correct and that these areas are appropriately excluded from GFA.
In Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 ('Buyuzo') at [89], Preston CJ noted that in applying the GFA definition extracted at [38], the corridors leading from the car park to the entrance of storage units in that development were excluded from GFA on the basis that the areas fell within the exclusion at (h) of the GFA definition. The reasoning is extracted below: "The enquiry demanded by paragraph (h), as it is for paragraph (g), of the definition of gross floor area, is to identify the area within the building as a whole used for the loading or unloading of goods (paragraph (h)) or for carparking (paragraph (g)) for the purpose authorised by the development consent, here storage premises. Once this is recognised, not only the areas authorised to be used for the loading or unloading of goods or carparking, but also the areas that provide access to these authorised areas, can be readily identified."
Applying the reasoning in Buyuzo, I am satisfied that the area of the waste rooms is provided for the purpose of holding the mechanical plant of the waste chute and to allow access to that plant by residents of the boarding house. I am satisfied this area of the proposed development is excluded from the GFA by the application of the exclusion at (f) in the definition, under LEP 2012. I accept Mr Mead's evidence in this regard.

Should the maximum FSR standard be varied?

The objectives of the FSR development standard at cl 4.4(1) of LEP 2012 are: The objectives of this clause are as follows - (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
The Applicant has filed a written request to vary the maximum FSR control pursuant to cl 4.6 of LEP 2012. This request accords with the amended plans and seeks a variation to the FSR development standard. The written request argues that compliance with the standard is unreasonable or unnecessary as the proposal complies with the objectives of the FSR standard. (Wehbe test 1).
I reviewed the request and in accordance with cl 4.6 of LEP 2012, I am satisfied that the written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance. I am satisfied that the reasons detailed in the written request met the objectives of cl 4.3 of LEP 2012 and adopt those arguments. I note in particular that the written request demonstrates that, consistent with the objectives, the proposal will result in the reduction, redistribution and repurposing of the existing floor space to meet the needs of people seeking low-cost alternative forms of housing in an accessible location, the proposal facilitates the adaptive reuse of the building, is of a compatible form and scale to the locality, and does not result in any adverse impacts in the locality (subcl 4.6(3)(a) of LEP 2012).
In Initial Action at [24], Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environment planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard. I am satisfied that the grounds detailed in the written request are environmental planning grounds, they arise from the variation and are sufficient to justify the contravention of the development standard: (subcl 4.6(3)(b) of LEP 2012). On the preceding basis, I am satisfied that the requirements of subcl 4.6(4)(a)(i) of LEP 2012 are met.
For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the B8 Metropolitan Centre zone (see [20]) and the FSR development standard. On this basis, I am satisfied that the requirements of subcl 4.6(4)(a)(ii) of LEP 2012 are met. Pursuant to subcl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.
The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR standard.

Design Excellence

Cl 6.21C of LEP 2012: Design Excellence applies to the subject site. Pursuant to subcl (2), development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. Following a consideration of the evidence and the submissions of the parties, I find that the development exhibits design excellence. In determining whether the development exhibits design excellence, as required by subcl (2), I have had regard to the following factors: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
I am satisfied that the proposed development, when completed, will exhibit a high standard of design and materials appropriate to the proposed boarding house use. The selection of material and the detailing proposed is reflective of its location and enables the Site to be visually integrated within its urban precinct. Further, I am satisfied that the proposed design incorporates detailed use of modulation and articulation, and facilitates the successful renewal of the existing building. Finally, I accept the submission of Mr Pickles that the intent of cl 6.21C of LEP 2012 is directed to external urban design of the proposed development, its interaction with and contribution to the public domain, rather than the internal amenity of the building which is addressed by other controls in both LEP 2012 and Sydney Development Control Plan (DCP 2012). In my view, so much is clear from the text of the provision. If this interpretation of the provision is incorrect, I note that consistent with my findings in the remainder of the judgment, I find that after considering the factors at sub cl (d) of cl 6.21C, the entirety of the proposed development exhibits design excellence. The precondition is satisfied.
I have given consideration to the factors listed at [55] in forming my state of satisfaction that cl 6.21C of LEP 2012 is met. The proposed development in my opinion does exhibit design excellence. In that circumstance, the precondition in cl 6.21C(2) for development consent is achieved.
Pursuant to subcl (6) of cl 6.21C in LEP 2012, I am satisfied that a competitive design process is not required for this development as it only involves alterations and additions to an existing building, will not significantly increase the height or GFA of the building, will not have significant adverse impacts on adjoining buildings or the public domain, and finally will not significantly alter any aspect of the building when viewed from public spaces.
Pursuant to cl 7.14: Acid sulfate soils, the subject site is located in Class 5 Acid soils zone. As no excavation or ground works are proposed, I am satisfied that the development will not disturb, expose or drain acid sulfate soils and cause environmental damage.
Pursuant to cl 7.20(3) of LEP 2012, I am satisfied that it is unreasonable and unnecessary for a development control plan to be prepared in the circumstances of the development, as it only involves alterations and additions to an existing building, will not significantly increase the height or GFA of the building, will not have significant adverse impacts on adjoining buildings or the public domain and finally will not significantly alter any aspect of the building when viewed from public spaces.

Owners consent

The Respondent argues that given the proposal involves the partial demolition of the southern boundary wall on Level 3, which encroaches onto the neighbouring property, the consent of the adjoining landowner (107 Quay Street: Lot A DP 962501, Lot A DP180011) is required. It is an agreed fact that such consent has not been provided. The works in question are the demolition works identified within the black box below: Figure 1:Extract of Level 3 proposed floor plan
At cl 49(1), the Regulation states that a development application may be made either: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent of the owner of the land.
The submissions of the parties focussed on the interpretation of subcl (a) of cl 49 of the Regulation.
The subject site is benefitted by an easement to permit an encroaching structure. An extract of the plan of easement within Lot A in DP 962501 and Lot A in DP 180011 (107 Quay Street) is shown below. The subject site (Lot 2 DP 408335) is the lot benefitted by the easement. Figure 2:Extract of Deposited Plan
(Extract of Exhibit 7)
Mr Pickles submits that consent of the owner of Lot A DP 180011 and Lot A DP 962501 is not required for the development application, notwithstanding the development for which consent is sought includes partial demolition of the walls currently encroaching on their land. His reasoning is summarised in the following paragraphs.
Firstly, cl 49 of the Regulation governs only who can make a development application. It does not identify what is required for a development application, or what the minimum requirements are before consent can be granted. Consistent with cl 49(1)(a) of the Regulation, EMAG Apartments Pty Ltd (EMAG) is the owner of the land on which the building the subject of the development application sits and can make the development application. Owners consent is provided (Exhibit C).
Secondly, Mr Pickles relies on the judgment of Hodgson JA in Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 [3]-[35] (Sydney City v Ipoh), to argue that the owner of the subject site, EMAG, by the fact of the easement over the encroachments, has effectively possessory title over those encroachments. The relevant extract of the judgment follows: "2 The question of whether a person can lawfully carry out development on land depends upon both (1) considerations associated with title to the land and (2) considerations associated with questions of environmental planning. 3 The granting of development consent by a council concerns (2) but not (1); and whether or not a person who is not the owner of land can carry out on that land a development, for which development consent has been granted, will depend on legal issues separate from those arising under the Environmental Planning and Assessment Act (the Act), such as the law relating to trespass, leases, licences, contracts and estoppel. 4 The circumstances that s.77(1)(b) of the Act (the predecessor of cl 49 of the Environmental Planning and Assessment Regulation) required the consent of the owner to a development application does not in my opinion mean that the Act or Regulation was intended to give the owner a further measure of control, as a matter of title, over development, beyond that given by the law relating to trespass, leases, licences, contracts and estoppel. The objects of the Act, set out in s.5, concern matters relating to environmental planning, not matters relating to title to land. 5 In my opinion, the requirement of consent of the owner to a development application under the Act and Regulation is to be considered as a means of supporting the objects and the functioning of that legislative scheme; for example by ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied, and by ensuring that owners are not prejudiced by having development consents associated with their land which cause unwelcome increases in the value of land and thus in rates and taxes payable on it."
Thirdly, it was Mr Pickles submission that cl 49 of the Regulation is not intended to give the adjoining landowner, over which the building encroaches, a right for that encroachment to stay. He argues that their rights are restricted to the legal right to insist that the easement be extinguished if the encroachment is removed: Conveyancing Act 1919, Sch 8 Pt 13 (Conveyancing Act).
Fourthly, that EMAG, pursuant to the terms of the easement, have the right to enter the land to maintain the encroachment: Conveyancing Act , Sch 8 Pt 13. Mr Pickles concludes: "There must therefore be a right to remove it [the encroachment] because implicit in everything that the owner can do, the owner of the benefited lot can anything to keep the encroaching structure in good repair and condition and insist- if the owner can insist that it remain, the owner equally can even insist that it be removed. The adjoining owner can't insist that it be removed, the burdened owner can't insist it be removed but the benefitted owner, if the benefitted owner can insist it remain, the benefitted owner must surely be able to insist that part of it be removed." (Transcript 1 December 2021, pg 51)
Fifthly, Mr Pickles submits that cl 49 of the Regulation is relevant only to the extent of controlling whom may make an application for development consent, not whether a person has a legal right to undertake the works that are the subject of the consent. Further, in his oral submissions Mr Pickles detailed for the Court the avenues available to the Applicant post the grant of consent, to gain permission to the extent necessary to gain access to enter and remove the encroachment and undertake the works.
Finally, Mr Pickles addressed the decision of the NSW Court of Appeal in Al Maha Pty Ltd v Huajan Investments Pty Ltd (2018) 233 LGERA 170, 365 ALR 86 [2018] NSWCA 245 ('Al Maha'). Mr Pickles notes that at [86] of Al Maha, Preston CJ extracted cl 50(1)(a) of the Regulation, as it was at that time, namely: "The Regulation specifies that a development application must contain the information, and be accompanied by the documents, specified in Part 1 of Sch 1 of the Regulation (cl 50(1)(a) of the Regulation). Part 1 of Sch 1 of the Regulation specifies that a development application must contain, amongst other information: "(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation." An "owner" is defined as having the same meaning as in the Local Government Act 1993 (s 4(1) now s 1.4(1) of the EPA Act). The Local Government Act defines "owner" to include "every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession." The Regulation does require owner's consent where the application is made by a person other than the owner. The Regulation provides that a development application may be made: "(a) by the owner of land to which the development application relates, or (b) by any other person with the consent in writing of the owner of that land" (cl 49(1) of the Regulation)."
Mr Pickles identifies that since the decision of the Court in Al Maha, this provision in the Regulation has been repealed. The previous Regulation at cl 50(1)(a) required as a precondition to consent, that there was evidence that the owner of the land on which the development was to be carried out consented to the application if it was made by a person other than the owner. Mr Pickles emphasises that, as the provision has been repealed, this is no longer the case.
Mr Pickles concludes on the preceding grounds, the Respondents contention that the court does not have power to consent to the demolition works proposed on the southern boundary wall on Level 3 of the development is not made out.
In the event that the Court does not embrace his primary submission, Mr Pickles provides two alternative arguments: 1. That the Court is capable of granting consent to part of the development application utilising the provisions of s 4.16(4) of the EPA Act, as follows: 4.16 Determination … (4) Total or partial consent A development application may be granted- … (b) for that development, except for a specified part or aspect of that development. In this first approach, the Court would grant consent for the development the subject of the development application, with the exception of the demolition of the wall on the southern boundary on Level 3. I note that the slab encroachments are not intended to be affected by the development application and are retained. 1. Alternatively, Mr Pickles indicated the Applicant would accept a condition of consent excluding these works from the consent.
In the alternative, Ms Reid maintains that the provision of owners consent remains a jurisdictional issue. Firstly, she submits that, despite the amendments to the Regulation since the Al Maha decision as referred to by Mr Pickles, cl 49 of the Regulation remains. Ms Reid submits that provision is required to be interpreted in the context of a number of definitions: owner has the same meaning as in the Local Government Act 1993: s 1.4 EPA Act That definition is: owner - (a) in relation to Crown land, means the Crown and includes - (i) a lessee of land from the Crown, and (ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown, and (b) in relation to land other than Crown land, includes - (i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession, and (ii) every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, and (iii) in the case of land that is the subject of a strata scheme under the Strata Schemes Development Act 2015, the owners corporation for that scheme constituted under the Strata Schemes Management Act 2015, and (iv) in the case of land that is a community, precinct or neighbourhood parcel within the meaning of the Community Land Development Act 2021, the association for the parcel, and (v) every person who by this Act is taken to be the owner, and (c) in relation to land subject to a mining lease under the Mining Act 1992, includes the holder of the lease, and (d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected. Land includes: s 1.4 EPA Act (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land. Building: includes art of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.: s 1.4 EPA Act
In contrast to Mr Pickles, Ms Reid submits that pursuant to cl 49 of the Regulation a development application may be made by the owner of the land (which applying the above definition, includes the building) to which the development relates. She argues for this development application and the works for which consent is sought, the relevant land is both the building and the easement encroachment.
Further, she argues that the equitable interest of the Applicant in the easement is not the equivalent of a freehold interest. Rather, pursuant to the easement the Applicant has a right for the encroachment to stay, but not to ownership. Ms Reid disagrees with the submission of Mr Pickles that the standard terms of the instrument under Sch 8 of the Conveyancing Act to maintain in good repair and safe condition extend to permission for the Applicant to demolish part of the encroaching structures.
Ms Reid concludes that the Court does not have the power to approve the development application as it relates to any structures in the easement (the encroachments) in the absence of owners consent from each of the relevant parcels.
However, Ms Reid accepts that it is lawful and open to the Court to approve the development application subject to a condition excluding the demolition works proposed on the southern boundary wall on Level 3 of the development (which are outside the subject site, Lot 2 DP 40833) from the consent.

Owners consent is required.

The development application amongst other elements seeks consent for demolition, specifically the partial demolition of some walls on the southern boundary at Level 3 of the development. These walls are outside the subject site, Lot 2 DP 40833. The land to which this component of the development relates includes the portion of the building which is located on the adjoining lots: Lot A in DP 962501 and Lot A in DP 180011 (107 Quay Street).
Pursuant to s 1.5(1) of the EPA Act, 'development' is defined as: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument
Pursuant to cl 49 of the Regulation, the persons who can make development applications are those who are the owners of the land, or other with the consent of the owner. Applying the definitions extracted at [74] I accept and prefer Ms Reid's interpretation of cl 49 of the Regulation summarised at [75]-[77] in the context of the subject development application. I am satisfied that in this circumstance the development for which consent is sought includes land (which applying the definition includes a building erected on that land) where part of that building traverses land for which owners consent has not been provided.
I am not persuaded by Mr Pickles submissions, or his reliance on the obiter comments of Hodgson JA in Sydney City v Ipoh, that I should construe the terms of the easement in such a manner to provide the Applicant with the right to either meet the requirements of cl 49 (1)(a) of the Regulation or to demolish part of the encroachment. However, I accept his submission that there is a distinction between the function of cl 49 of the Regulation, which is relevant only to the extent of controlling whom may make an application for development consent, and ultimately whether a person has a legal right to undertake the works that are the subject of the consent. But in my view that does not cure the requirements of cl 49 of the Regulation.
Given the preceding, and the agreement of the parties that the affected works are able to be excluded from the development application, I make directions at [128] for amended plans to be filed with the Court excluding any development proposed to occur in the portion of the building which is located on the adjoining lots: Lot A in DP 962501 and Lot A in DP 180011 (107 Quay Street).

The merits of the proposed development.

Having addressed the relevant preconditions, the Respondents contentions as the merit of the proposed development application remain as follows: 1. Whether the amenity of the proposed indoor communal room and kitchen on Level 3 is acceptable; 2. Whether the amenity of the proposed communal open spaces on Level 16 and 17 are acceptable given the potential for these areas to be affected by wind; 3. Whether the design of the boarding rooms is appropriate, in particular their layout and the provision of adequate storage and facilities; and 4. Whether the development application is sufficiently certain.
I note that I have addressed issue (4), in relation to uncertainty, in my discussion of the remaining merit concerns raised by the Respondent. Further, given my findings at [56] that cl 6.21C of LEP 2012 is directed to the to external urban design of the proposed development and its interaction with and contribution to the public domain, rather than the internal amenity of the building, I am not persuaded by Ms Reid's submission that in this case any uncertainty is sufficient to preclude the consent authority making an assessment of the design excellence of the development.

Amenity of indoor communal rooms

By reference to the architectural plans, the proposed development provides the following indoor communal facilities:

Level 3:
Movie Theatre
Common Laundry
Games Room
TV Room
Yoga Studio
Lounge Area
Multipurpose training and Seminar space
Two study and reading rooms
Kitchenette
Level 4-15
Communal rooms on each floor
(Exhibit A) (Exhibit J)

DCP 2012) contains development controls for boarding houses at Section 4.4. Relevantly it contains the following provisions in relation to indoor communal facilities: "4.4.1.3 Communal kitchen areas (1) A communal kitchen area is to be provided with a minimum area that is the greater of 6.5sqm in total or 1.2sqm for each resident occupying a bedroom without a kitchenette. (2) The communal kitchen is to contain: (a) one sink for every 6 people, or part thereof, with running hot and cold water; and (b) one stove top cooker for every 6 people, or part thereof, with appropriate exhaust ventilation. (3) The communal kitchen is to contain, for each resident occupying a bedroom without a kitchenette: (a) 0.13 cubic metres of refrigerator storage space; (b) 0.05 cubic metres of freezer storage space; and (c) 0.30 cubic metres of lockable drawer or cupboard storage space." 4.4.1.4 Communal living areas and open space "(1) Provide indoor communal living areas with a minimum area of 12.5sqm or 1.25sqm per resident and a width of 3 metres. The communal living area can include any dining area, but cannot include bedrooms, bathrooms, laundries, reception area, storage, kitchens, car parking, loading docks, driveways, clothes drying areas, corridors and the like. (2) Indoor communal living areas are to be located: (a) near commonly used spaces, such as kitchen, laundry, lobby entry area, or manager's office, with transparent internal doors, to enable natural surveillance from resident circulation; (b) adjacent to the communal open space; (c) to receive a minimum 2 hours solar access to at least 50% of the windows during 9am and 3pm on 21 June; (d) on each level of a multi-storey boarding house, where appropriate; and (e) where they will have minimal impact on bedrooms and adjoining properties." …
In their joint planning report the planning experts note their agreement that, based on agreed amendments that have subsequently been incorporated into the architectural plans, the control at cl 4.4.1.4(1) of DCP 2012 is met.
The remaining concern expressed by Ms Pressick is that 'the plans before the Court for Level 3 do not demonstrate that the floor to ceiling heights will satisfy the minimum requirements of the National Construction Code (NCC) due to the existing floor heights of Level 3 and the low clearance to the underside of the Level 4 structure' (Exhibit 2). This concern was maintained by Ms Pressick in her oral evidence.
In part response to Ms Pressick's evidence, the Applicant sought leave to amend their development application to relocate the kitchenette within level 3. This leave was granted by the Court during the proceedings. The amended architectural plans include a dimensioned cross section and reflected ceiling plan indicating a clear dimension of 2.2m as the clear floor to ceiling height in the proposed kitchenette and a finished floor level of RL 21.28. These architectural drawings, and the particulars they note, would form part of any consent. Further to ensure achievement of the requirements of the NCC I propose to incorporate the following condition on any consent to be met prior to the issue of a Construction Certificate: "83A Detailed construction drawings, incorporating at least the retained and proposed structure and servicing ducts, must be provided to the PCA that demonstrate that a minimum finished floor to ceiling clearance of 2.2m to the proposed communal facilities on Level 3 in compliance with the NCC."
On the preceding basis, I am satisfied that the amenity of the indoor spaces on level 3 will be acceptable. I accept Mr Meads evidence that given the development application is compliant with cl 4.4.1.4 and provides a diversity of communal indoor spaces the Respondent's contention that the design of the Level 3 communal areas is unacceptable is not made out.

Amenity of Communal Open Spaces

The second area of amenity concern raised by the Respondent is in relation to the proposed outdoor communal open spaces on Level 16 and 17. Specifically the potential for their amenity and useability to be impacted by wind effects.
DCP 2012 contains the following development controls in relation to the provision of communal open space for boarding house uses: "4.4.1.4 Communal Living Areas and open space … (3) Communal open space is to be provided with a minimum area of 20sqm and a minimum dimension of 3m. (4) Communal outdoor open space is to be located and designed to: (a) generally be north-facing to receive a minimum of 2 hours solar access to at least 50% of the area during 9am to 3pm on 21 June; (b) be provided at ground level in a courtyard or terrace area, where possible; (c) provide partial cover from weather; (d) incorporate soft or porous surfaces for 50% of the area; (e) be connected to communal indoor spaces, such as kitchens or living areas; (f) contain communal facilities such as barbeques, seating and pergolas where appropriate; and (g) be screened from adjoining properties and the public domain with plantings, such as trellis with climbing vines. (5) 30% of all bedrooms are to have access to a private open space with a minimum area of 4sqm in the form of a balcony or terrace area."
The planning experts agree that the proposal satisfies and exceeds the requirements of DCP 2012 in relation to the provision of communal open space. Further, the experts agree the wind environment of the communal open space areas on Level 16 and 17 has not been the subject a wind engineers report. Ms Pressick argues that without such an assessment the suitability and amenity of the communal open spaces on Levels 16 and 17 cannot be adequately assessed. However, I note that the experts note their agreement that: … "it is typical for wind impacts identified in such a report to be mitigated with minor design amendments (such as by including screens, plantings, or awnings). Experts agree any such amendments could be the subject of a condition of approval (if the Court is of a mind to uphold the Appeal) however this condition would need to be written upon receipt of a wind report outlining what measures (if any) would be required to ensure a satisfactory wind environment." (Exhibit 2)
It was Mr Mead's evidence that the proposed development contains a suite of communal open spaces with different orientations, size parameters and facilities to meet the needs of future residents. He further argues that the determination of whether the communal open space provided meets the requirements of the planning controls, and is acceptable, should be done across the whole of the development. It was his evidence that the outdoor communal open space proposed is of high amenity and that any amelioration for wind effects, if required, can be appropriately addressed by condition as: firstly, the elements required to ameliorate any wind effect would be minor in scale; the space is currently utilised as open space with no obvious defect; and finally that the proposed development does not need to rely on the communal open space on level 16 and 17 to meet the requirements of DCP 2012.
In the alternative Ms Pressick argues that an assessment of the potential for wind effects to occur in the communal open space on level 16 and 17 should be undertaken prior to the determination of the development application to ensure the communal open space is comfortable for the boarding house residents. Ms Pressick further argues that cl 6.21C(2)(d)(ii) of LEP 2012 requires the consent authority to have regard to wind effects as part of the determination of design excellence.
The landscape experts noted the following relevant matters in their joint report:

That the amended landscape design intends to provide layering of planting to ameliorate any wind effect experienced in the communal open spaces on Level 16 and 17;
That sitting areas, and areas with lawn, will be provided with aluminium batten screens in locations where there is insufficient room for layered planting.
(Exhibit 3)

The layered planting design and the screen locations are identifiable in the proposed landscape plans, in particular drawing sheets 9, 10 and 11 of Exhibit B.

Findings

The proposed development provides communal open space for boarding house residents on Level 7 (48.5m²), Level 3 (no total area noted), Level 16 (201.5m² and 163.7m²), Level 17 (72m² and a second area with no total area noted). I am satisfied, and I accept the evidence of the planning experts, that the requirements of DCP 2012 are met.
Section 4.15(3A) of the EPA Act provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
I concur with the findings of Gray C in Dickinson Property Group Pty Ltd v Wollondilly Shire Council [2019] NSWLEC 1220 at [49]. Consistent with s 4.15(3A) of the EPA Act, I am satisfied that there is no legal basis in these proceedings to warrant a more onerous provision of communal open space for the proposed development than that which is detailed in DCP 2012.
Further, I am satisfied that on merit the communal open spaces proposed will be satisfactory. By reference to the landscape plans in evidence, in particular the cross sections, I am persuaded that the layered planting will ameliorate any adverse wind effects on the upper-level communal open spaces. However, I am further persuaded that if such wind effects are found by the operator to require further amelioration, such barriers or deflection required to achieve such amelioration could be comfortably accommodated within the planter beds or as free-standing structures. I accept Mr Mead's evidence in this regard. In determining the development application, I have considered how the proposed development addresses any environmental impact arising from wind effects and I am satisfied that those impacts do not warrant the refusal of the development application.

Amenity of the boarding rooms

The Respondent raises three principal concerns with the amenity of the boarding rooms. Firstly, the ability of the room designs to accommodate use by boarders sharing a boarding room being on different work shifts. Secondly, the adequacy of provision of laundry and kitchen facilities. Thirdly, whether the boarding rooms have adequate storage.
DCP 2012 contains the following relevant provisions: "4.4.1.2 Bedrooms (1) The gross floor area of a bedroom is to be at least: (a) 12sqm (including 1.5sqm required for wardrobe space); plus (b) 4sqm when a second adult occupant is intended, which must be clearly shown on the plans; plus (c) 2.1 sqm for any en suite, which must comprise a hand basin and toilet; plus (d) 0.8sqm for any shower in the en suite; plus (e) 1.1 sqm for any laundry, which must comprise a wash tub and washing machine; plus (f) 2sqm for any kitchenette, which must comprise a small fridge, cupboards and shelves and a microwave. (2) Each bedroom must have access to natural light, from a window or door with a minimum aggregate area of 10% of the floor area of the room. Skylights are not to be the sole source of light. (3) Ensure the ceiling height in any bedroom containing double bunks is 2.7m. Triple bunks are not permitted. (4) In boarding houses classified as Class 3 by the BCA, each bedroom is to meet the fire safety standards of a sole occupancy unit for a Class 3 building in the BCA, whether it is provided as a sole occupancy or not. … 4.4.1.5 Bathroom, laundry and drying facilities (1) Communal bathroom facilities accessible to all residents 24 hours per day are to be provided with at least: (a) one wash basin, with hot and cold water, and one toilet for every 10 residents, or part thereof, for each occupant of a room that does not contain an ensuite; and (b) one shower or bath for every 10 residents, or part thereof, for each occupant of a room that does not contain a shower. (2) Laundry facilities are to be provided and include: (a) one 5kg capacity automatic washing machine and one domestic dryer for every 12 residents or part thereof; and (b) at least one large laundry tub with hot and cold running water. (3) Drying facilities, such as clotheslines located in a communal open space, are to be located to maximise solar access and ensure the usability of the space is not compromised." …
Before considering the evidence of the experts it is relevant to note that the Respondent also contends that: firstly, the development application contains insufficient information to satisfy the consent authority that no further structure will be required to achieve the development as proposed; secondly, that the development application is inaccurate as it does not use as its foundation a survey of the existing building but rather relies on as built drawings. Ms Pressick argues that both these factors generate uncertainty and that this uncertainty is specifically relevant to the circumstances of the current development application given the small size of the boarding rooms and the potential for a small error in the architectural plans to materially impact the functionality and amenity of the boarding rooms. For example, in her oral evidence Ms Pressick explained her concerns as follows: REID: … Mr Pickles asked you some questions about the consequences of the insufficient information. What is it that you're concerned about as a consequence of not having clarity around the as built drawings and the demolition plans? WITNESS PRESSICK: We - there, there have - I have concerns about the location of structure in some of the rooms. So if - the bedrooms are already tight. Some of them are, are really just sitting on 16.1 or 16.3 square metres. And you've got two individual beds, wardrobes, desks, kitchenettes that need to be accommodated. The location of structure in those small spaces can really impact on how those spaces are used. And, and we have worked through previous plans to, to get the plans to where they are now to what we think is acceptable, having had columns in very awkward locations such as opening a door and there is a column right in the middle of the walkway and you have to literally walk around do it. So I, I do have concerns that should columns - you know, I think the point was made whether a column moves or goes somewhere else or there are more or less makes no difference, but I think it, it could actually make a real difference to whether the rooms can meet the needs of the residence. And as, as a boarding house I think that's, that's - in very tight spaces, that's a, a difficult thing if there are very inconveniently located columns. (Transcript 1 December 2021, page 25)
Ms Pressick's oral evidence was that she was concerned:

Firstly, about the number of inconsistencies between the as-built plans and the information contained in the demolition plans which document what is currently on the subject site;
Secondly, that over time the documentation supporting the development application has shown different locations of existing structure in the retained portion of the building;
Thirdly, that the application lacks structural certification from an engineer saying that the architectural plans reflect what is in the building, and
Finally that the architectural plans do not clearly show what is new proposed structure and what is existing structure.
(Transcript 1 December 2021, page 7)

Given her concerns Ms Pressick made a comparison between the as-built drawings and the architectural plans. For example, by reference to her marked up plans in Exhibit 9, Ms Pressick identifies the following specific concerns or discrepancies:

Four existing columns in proximity to the existing pool, proposed to be demolished, are shown as square in the as-built drawings but are round in the architectural plans;
The omission of existing columns shown on the ground floor in the as-built drawings in the demolition plans,
Lack of clarity about the status of the columns in the corridors outside Rooms 4.01, 5.02, 6.02, 7.02, 8.02 and 15.02.
Existing walls in proximity to Room D-516, D517 are shown on the as-built drawings but are not nominated for removal on the demolition plans.
The inconsistency of nomination of the columns in L17 communal open space as retained on the architectural plans but nominated for removal on the demolition plan.
The lack of consistency between the nomenclature utilised in in the architectural plans and the demolition plans for retained columns leads to confusion as to the scope of works.
The fact that the agreement of the landscape experts for the existing planters on Level 7 to be demolished is not reflected on the architectural plans which indicate they are to be retained.
That the architectural plans, including the demolition plan, does not accord with the verbal advise of the Applicant's representative that the entirety of Level 16 and 17 of the existing building is proposed to be demolished.
(Exhibit 9)

In cross examination Ms Pressick accepted that, except for Levels 16 and 17, there are no circumstances she could identify where within the proposed boarding rooms there are columns in the as built drawings, but there is uncertainty in the architectural plans as to their retention. In other words, Ms Pressick conceded that it is unlikely that any uncertainty in the coordination between the as built, demolition and architectural plans will result in an impact to the functioning or amenity of the boarding rooms. (Transcript 1 December 2021, page 28)
The remaining area of concern identified by Ms Pressick centres on the façade columns and structure. The architectural plans indicate firstly, the retention of the two rows of existing façade columns that follow the angled alignment of Quay Street; secondly, they indicate the introduction of a new external wall that is aligned at right angles to the side boundaries rather than parallel to Quay Street. The net result of this is a slight 'skewing' of the alignment of the building wall from the façade across the frontage of Quay Street. Ms Pressick's concern is the visibility of the two columns and the impact of the retained façade columns on the useability of the private open space of the relevant units.
Mr Cadogan was asked in oral evidence about Ms Pressick's concerns about the retention of the façade columns being in a different alignment to the new external wall of the building. Mr Cadogan confirmed that the driver for the wall alignment was the need to make the internal boarding rooms orthogonal. In their oral evidence Ms Pressick and Mr Cadogan agreed that the column alignment does not change their agreed conclusion that the appearance of the proposed development from the public domain achieves design excellence.
Ms Pressick's evidence in the joint report detailing her concerns about the internal amenity of the boarding rooms in the proposed development can be summarised as follows:

That if the boarding rooms are occupied by two individuals working different shift routines the use of the washing and cooking facilities by one room mate may inhibit the second room mate achieving adequate sleep.
The kitchenette on Level 3 should be converted to a fully functioning kitchen with provision of extensive storage for individual kitchen equipment, fridges and relevant full size appliances.
That the wardrobe provision indicated in the architectural plans fails to meet the DCP requirement of 1.5sqm (see paragraph [104]).

Further Ms Pressick argues that all laundry facilities should be relocated from the individual boarding rooms to a communal laundry to resolve some of the preceding concerns, reduce the potential for conflict and free floor space in the boarding rooms to increase wardrobe provision.
Mr Ashworth agrees with Ms Pressick's concerns.
In the alternative Mr Cadogan's evidence is that the boarding room layouts and facilities acceptably meet the needs of the proposed residents. His evidence can be summarised as follows:

That the amended architectural plans demonstrate the provision of a small refrigerator, cooktop, sink, microwave and cupboard space in each boarding room. In his view such provision provides an acceptable amenity, will meet the residents and satisfy the provisions of DCP 2012 despite, in some case, being smaller than the standard of 2.0sqm.
That in addition to the room kitchenettes a communal kitchen has been provided on Level 3 as an alternative for residents.
The DCP controls governing wardrobe space provision as a designated square metre amount is less helpful than either cubic metres or lineal metres of hanging space.
To achieve the 1.5sqm control with a typical depth of 600 - 700m would require a wardrobe length of between 2.1m to 2.3m.
He notes however that a typical full height wardrobe has sufficient vertical space to accommodate to hanging racks i.e. a 900m length of wardrobe can provide 1.8m linear metres of hanging space.
That taking the proceeding approach utilises less floor space in the boarding room which results in the room being able to also accommodate a desk and chair.

Mr Mead provides evidence in response to Ms Pressick's evidence about the potential conflict or amenity impacts generated by the use of the washing or cooking facilities in shared rooms. He argues: … It is presumptive to suggest persons who do not want to reside together in a double room will be accommodated in such a way. Like student housing, double rooms are destined to be occupied by persons who wish to live in that arrangement and will manage it accordingly. The inclusion of washers and dryers in each room enhances occupant amenity and their use will no doubt be managed in the manner that occurs in double rooms across many boarding houses in New South Wales where I expect shift working and different patterns of living is not unusual. (Exhibit 2)
Further, in his evidence Mr Mead identifies that the inclusion of both communal laundry and kitchen facilities means occupants will have choice, and flexibility as to where they undertake these tasks.

Findings

On the evidence I am not persuaded that any amenity impacts advanced by the Respondent warrant the refusal of the development application. However, in some matters I find it appropriate to impose conditions of consent to modify the details of the development in response to the evidence. My reasoning follows.
At [128] I make directions requiring the updating of the architectural plans to remove any development proposed to occur in the portion of the building which is located on the adjoining lots (see [83]). I am satisfied is appropriate to also direct the applicant to ensure that the demolition plans are coordinated with the architectural plans in any new revision which is filed with the court in accordance with the directions. I further intent to incorporate the following condition in any consent: Where there is an inconsistency between the architectural plans and any built elements in the existing building, the architectural plans prevail. If consent is required for the work, no demolition is to occur that is not nominated in the architectural plans.
I am satisfied that any concerns in relation to the potential for conflict between occupants of the boarding rooms as a result of the use of cooking all laundry facilities is addressed by the provision of communal facilities on Level 3 of the proposed development. I accept Ms Pressick's evidence that the communal kitchenette on Level 3 should be a fully functioning kitchen with a range of appliances and storage. Such an amendment would be appropriately imposed on a condition on any consent and is incorporated in that Applicant's draft conditions of consent. (Exhibit P)
I accept and prefer Mr Cadogan's evidence as to the adequacy of wardrobe and storage provision for the boarding rooms. Applying s 4.15(3)(b) of the EPA Act I am satisfied that despite the variation to the standard at 4.4.1.2(1)(a) of DCP 2012, requiring 1.5sqm of wardrobe space, the objectives of ensuring an acceptable level of amenity and accommodation for future residents is met. Further I note the Applicant's draft conditions of consent incorporate the following: 3(a) All boarding rooms are to be provided with sufficient wardrobe space per occupant. In particular, double rooms are to be provided with separate wardrobe spaces for each occupant and each room is to have: (1) At least 1.5 lineal metres of hanging space, which may be provided in the form of the double rack of at least 750mm in length; and (2) Some drawers and shelving for each occupant … (Exhibit P)
Following a consideration of the evidence I intend to impose this condition as follows: 3(a) All boarding rooms are to be provided with sufficient wardrobe space per occupant. Rooms are to be provided with separate wardrobe spaces for each occupant and each room is to have: (1) At least 1.5 lineal metres of wardrobe hanging space, which may be provided in the form of the double rack of at least 750mm in length; and (2) Some drawers and shelving for each occupant …
I am satisfied that the amenity of the boarding rooms is satisfactory.

Future Retail Use

Finally, the Respondent raises our concern about the functionality and serviceability of a future ground floor retail use. In particular the ability of the space to accommodate the mechanical ventilation requirements of a future food use. The Respondent seeks to impose the following condition on any consent. Mr Pickles submits that firstly no use of the space is sought by the development application, secondly given the wide range of permissible uses available under LEP 2012 there is not an automatic need for such mechanical plant. (46) Mechanical Ventilation (a) the premises must be ventilated in accordance with the Building Code of Australia and AS1668.1 and AS 1668.2 - The Use of Ventilation and Air-Conditioning in Buildings - Mechanical Ventilation and Buildings. (b) Details of any mechanical ventilation and/or air-conditioning system complying with AS1668.1 and AS 1668.2 - The Use of Ventilation and Air-Conditioning in Buildings - Mechanical Ventilation and Buildings, the Building Code of Australia and Relafen Australian standards must be prepared and certified in accordance with Clause A5.2(1)(e) of the Building Code of Australia to the satisfaction of the Accredited Certifier prior to the issue of a Construction Certificate. (c) Prior to the issue of any Occupation Certificate and following the completion, installation, and testing of all the mechanical ventilation systems, a Mechanical Ventilation Certificate of Completion and Performance in accordance with Clause A5.2(1)(e) of the Building Code of Australia must be submitted to the Principal Certifier.
Whilst I accept the submission of the Respondent that the lack of mechanical exhaust from the ground floor retail use may preclude its future use by some food premises, in my view that is a commercial matter for the applicant. I accept Mr Pickles that there are a wide range of permissible uses to which this space may be allocated. Applying s 4.17(1) of the EPA Act I am not satisfied that it is appropriate to impose the condition at [124] on the proposed development.

Conclusion

I am satisfied that the proposed development exhibits design excellence, is compatible with the character and streetscape of the locality and that sufficient information is before the Court to evaluate the merits of the development application pursuant to s 4.15(1) of the EPA Act.
I am satisfied that it is appropriate to grant development consent to the proposal, with the exception of any development proposed to occur in the portion of the building which is located on the adjoining lots: Lot A in DP 962501 and Lot A in DP 180011. Whilst the parties made agreed submissions that this matter could be addressed by condition, in my view it is preferable to amend the architectural drawings to properly reflect the consent granted, the alternative of having architectural drawings that are inconsistent with the conditions of consent can create confusion during the later stages of realising the development. There are also some minor drafting errors on the architectural drawing set to be rectified between the demolition and works plans which are identified in the body of the judgment.
The Court directs that: 1. The applicant is to amend the architectural drawings (Exhibit A &J) to:

exclude any development proposed to occur in the portion of the building which is located on the adjoining lots: Lot A in DP 962501 and Lot A in DP 180011.
to ensure that the demolition plans are coordinated with the architectural plans to clearly identify each of new, retained and demolished structures and in accordance with AS 1100.301 - 2008: Architectural Drawing.
be allocated a new revision number. 1. The amended architectural drawing set is to be filed and served within 2 weeks of the date of this judgment. 2. The Respondent, Council of the City of Sydney, as the relevant consent authority, is to advise the Court whether it agrees, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending their development application as detailed in (1). If it consents to the amendment, the amended application is to upload the amended development application to the NSW Planning Portal. 3. amended conditions of consent reflecting the findings in the judgment are to be filed one week after the filing of the architectural drawings. 4. The parties are granted liberty to restore on 2 days' notice.

Amendments 14 March 2022 - Reproduced image at par 61 to reflect inclusion of black box 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: 14 March 2022

(2018) 233 LGERA 170

(2018) 236 LGERA 256

(2021) 248 LGERA 300

(2007) 156 LGERA 446

At a glance

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Judgment (21 paragraphs)

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Cases Cited (13)

Cited By (2)