Fabcot Pty Ltd v Newcastle City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 3, Div 3.1, ss 3.9, 4.15, 8.7
Newcastle Development Control Plan 2023
Newcastle Local Environmental Plan 2012
Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 (NSW)
Standard Instrument (Local Environmental Plans) Order 2006 (NSW)

Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited: City of Newcastle draft Broadmeadow Place Strategy 2024
Greater Newcastle Metropolitan Plan 2036
Hunter Regional Plan 2041
Newcastle Local Housing Strategy 2020
Newcastle Local Strategic Planning Statement 2020

Category: Principal judgment

Parties: Fabcot Pty Ltd (ACN 002 960 983) (Applicant)
Newcastle City Council (ABN 25 242 068 129) (Respondent)

Representation: Counsel:
J Hutton SC (Applicant)
C D Norton (Respondent)
Solicitors:
Mills Oakley
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/00298023

Publication restriction: Nil

JUDGMENT

Introduction and outcome

1. Before the Court is an appeal filed 13 August 2024 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) against the deemed refusal by Newcastle City Council (‘Council’) of a development application lodged by Fabcot Pty Ltd (‘Fabcot’) for development consent for construction of a proposed supermarket including a bottle shop, cafe, kiosk, various retail and commercial tenancies, associated service and lobby areas, and ancillary and associated works at 127-145 Lambton Road, Broadmeadow (‘Site’).

2. Although Council had raised numerous contentions (articulated in a further amended statement of facts and contentions filed 4 February 2025), by the time of the hearing on 24, 25 and 26 February 2025 as a result of amendments made to the proposal following the provision of further expert material and joint conferencing between the various experts, a number of the contentions had been addressed to Council’s satisfaction. Despite this, Council maintained that the remaining extent of noncompliance with certain controls regarding building design and appearance, streetscape (including front setbacks), urban design, and landscaping, considered collectively, would lead the Court to refuse consent and dismiss the appeal.

3. For the reasons that follow, I have determined that as a result of the evidence marshalled, including the further amended plans and Fabcot’s acceptance of certain conditions in relation to various aspects of the proposal, it is appropriate that the appeal be upheld such that consent is granted subject to conditions.

Structure of judgment

4. I will briefly detail the salient background facts, most of which are uncontroversial. I will then record the evidence before the Court and consider in narrative form the various planning instruments and controls referenced in the parties’ submissions. Lastly, I will address the remaining contentions after summarising the parties’ respective positions.

Background

5. Fabcot’s development application was lodged on 26 March 2024 (amended on 17 November 2024 and further amended on 28 January 2025) seeking development consent for the demolition of all existing structures on the Site, the construction of a single two-storey commercial building with basement and at-grade car parking, and comprising commercial tenancies on the ground floor being a Woolworths supermarket of approximately 3,400m², a BWS liquor store of approximately 160m², a cafe and two specialty retail premises, and first floor commercial floor space as well as business identification signage, associated landscaping embellishments, and traffic management works.

6. The Site is approximately 6,400m² and bounded by Lambton Road to the north, Cameron Street to the east, Lang Road to the west, and an unnamed laneway to the south and comprises 12 separate lots. The Site currently consists of commercial and industrial buildings, existing commercial tenancies, and an at-grade carpark. The immediate locality is characterised by a mix of industrial and commercial land uses of a similar scale and form to the existing structures on the Site. The Site does not contain any significant vegetation or landscaping. It is common ground that the Site is underutilised and that there is demand for a supermarket at Broadmeadow. An aerial photograph depicting the Site in its existing context is Annexure “B” to this judgment.

7. During the course of the hearing the architectural and landscape plans were updated and modified in an attempt to address a number of matters raised in the joint conferencing between various expert witnesses. These included plans indicating an ability of the proposal to accommodate a proposed condition of consent which shifted the Lambton Road frontage by approximately 300mm to address the concern that all elements (including various extruding architectural elements) of the Lambton Road facade were within the northern boundary of the lot.

8. The development application as originally lodged was notified and exhibited between 30 April 2024 and 28 May 2024 in accordance with Council’s “Community Participation Plan”, and no submissions were received during the notification period. As no submissions were received in respect of the original exhibition and publication, the two further amendments made to the development application were not renotified.

Planning framework

9. Although the remaining issues which Council maintains would justify the refusal of the proposal primarily relate to noncompliance with certain controls in the Newcastle Development Control Plan 2023 (‘NDCP 2023’), as Council maintains that a series of planning and strategy documents relating to the Broadmeadow area provide context for its remaining concerns and are therefore relevant to the Court’s consideration of the proposal, an understanding of the spectrum of instruments is appropriate.

10. The Site is zoned “E3 Productivity Support” under the Newcastle Local Environmental Plan 2012 (‘NLEP 2012’). Although the proposal is not permissible in the E3 zone, before certain zoning changes were implemented by the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 (NSW), which came into force on 26 April 2023, the Site was zoned “B5 Business Development”. Under the B5 zone, commercial premises (which included business premises, office premises or retail premises) were permissible with development consent. Relevantly, the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) provides for the continuation of land uses that were permissible under the previous (B5 Business Development) zoning until 26 April 2025. For this appeal, the effect is that as the development application was lodged on 26 March 2024, the proposed development (for commercial premises) remains permissible (with development consent) under the transitional provision until 26 April 2025, but is likely not permissible thereafter.

11. The consequence of the application of the transitional provision was a matter of contention between the parties. Fabcot submits that the objectives of the former B5 zone should at least be considered with those of the present E3 zone, if not replacing them entirely. Council, although accepting that little may turn in the present case on zone objectives, submits that the Court should be guided by the objectives of the present E3 zone rather than the objectives of the former B5 zone.

12. As will be seen, I do not consider the resolution of this issue is necessary given my findings in relation to the remaining contentions. Despite this, and although not determinative in this matter, as I have received some argument, I consider the better view is that a coherent construction of the transitional provision requires both permissibility and the associated objectives relating to the enduring permissible land use to be treated as being applicable. It is clear that the objectives of each zone refer to a range of permissible land uses, and where it is the case that the objectives are required to be considered when determining a development application, if the objectives of the later zone were treated as being significant in the sense of being determinative in the consideration of the earlier (and continuing) permitted development, then the transitional provision would not properly preserve development rights which, as submitted by Fabcot, was its evident effect.

13. The NDCP 2023, the focus of the parties’ evidence and submissions, is a comprehensive development control plan which, as considered later in this judgment, provides detailed controls that are relevant to the remaining contentions.

14. Adding to the nicety of the planning framework are the Hunter Regional Plan 2041 (‘Regional Plan’); the Greater Newcastle Metropolitan Plan 2036 (‘Metropolitan Plan’); the Newcastle Local Strategic Planning Statement 2020 (updated 2021); the Newcastle Local Housing Strategy 2020 (updated 2021); and Council’s draft Broadmeadow Place Strategy 2024 (‘Draft Strategy’).

15. The Regional Plan was prepared under Div 3.1 of Pt 3 of the EPA Act and published in December 2022. It provides strategic direction for land use planning and development, and identifies Broadmeadow as a “regionally significant growth area”. It identifies certain desired outcomes for the precinct which include the promotion of “15-minute neighbourhoods with housing and job options”, and notes that “access to transport infrastructure will drive opportunities for optimal density and diversity in housing types”.

16. The Metropolitan Plan, published in September 2018, identifies Broadmeadow as a “catalyst area”, and identifies a target of 1,500 additional dwellings by 2036.

17. The Newcastle Local Strategic Planning Statement, prepared under s 3.9 of the EPA Act, identifies Broadmeadow as an area of “change”. Similarly, the Newcastle Local Housing Strategy identifies Broadmeadow as an area for “growth”.

18. The Draft Strategy, which although not yet adopted, was exhibited from 12 June 2024 to 24 July 2024 and had its genesis in October 2022 when the Federal Government announced the “National Housing Accord”, a national planning direction to build one million (later increased to 1.2 million) new well-located homes from mid-2024 over five years. To achieve these commitments, the NSW Government announced the “Rezoning Pathways Program” in December 2022 to “unlock” 70,000 new homes across NSW. Broadmeadow was identified as one of seven sites for state-led rezoning and funding was granted to Council to prepare a “place strategy” in preparation for rezoning for housing. This led to the Draft Strategy, which supports the creation of 15,000 new jobs and 20,000 new homes. The Site is identified within the Broadmeadow business sub-precinct as a potential site for development in the first stage (0-10 years) of the Draft Strategy, which envisions mixed-use development with built forms ranging up to 10 storeys.

19. Without diminishing the importance of these instruments, it is clear that the Broadmeadow area generally and the area of the Site specifically are undergoing significant change with predicted (and encouraged) significant growth in relation to housing, density and population.

Evidence

20. The Court received extensive documentary and oral evidence including joint expert reports in the following disciplines: traffic (of Tim Rogers and David Ryner); flooding (of Jacqueline Hannan and Matthew Swan); urban design (of Oscar Stanish and Philip Pollard); Aboriginal heritage (of Tessa Boer–Mah and Brian Gibson); landscaping (of Jane Dumbleton and Philip Pollard); town planning (of Elise Crameri and Sara Kelly), as well as documentation comprising historical materials supporting the development application, various montages of streetscape elements and a collection of aerial and other photographs. Oral evidence was given by Mr Stanish, Dr Pollard, and Ms Dumbleton. I will deal with the evidence relevant to the remaining issues in my consideration of the parties’ submissions.

21. Council provided a statement detailing the agreed “jurisdictional prerequisites” which became Exhibit 15, which dealt with various matters about which the Court would otherwise need to be satisfied, including: BASIX requirements; matters arising under various Acts and policies including the Roads Act 1993 (NSW); the Water Management Act 2000 (NSW); the National Parks and Wildlife Act 1974 (NSW); and matters for consideration under the State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy (Industry and Employment) 2021; State Environmental Planning Policy (Transport and Infrastructure) 2021; State Environmental Planning Policy (Sustainable Buildings) 2022; as well as the NLEP 2012 (particularly in relation to matters relating to zoning, permissibility, heritage, flood planning, and acid sulphate soils); and specific provisions under the NDCP 2023.

22. In these circumstances, I am satisfied in relation to the matters which were submitted to be jurisdictional as provided for in the statement of agreed jurisdictional prerequisites.

Remaining issues

23. Although the further amended statement of facts and contentions filed by Council raised contentions that the development application should be refused because of concerns relating to flood management and impact; public interest and suitability of the Site; built form and scale; Aboriginal heritage; tree removal and landscaping; stormwater management; traffic generation and road network and servicing; and acoustic impacts, as a result of further intercourse between the parties’ experts and advisors, contentions in relation to flooding; public interest; suitability of the Site; Aboriginal heritage; tree removal; traffic and servicing; acoustic matters; and stormwater, were withdrawn. As such, the hearing proceeded over three days with Council maintaining that overlapping and cumulative concerns (detailed in Contentions 4 and 6 of the further amended statement of facts and contentions) in relation to the built form and scale (including building design and appearance), and to a lesser extent, landscaping, were sufficient to warrant refusal of the proposal.

24. In Contention 4, Council maintained that the proposal should be refused because it results in unacceptable impacts on the built environment as it is not compatible with, and does not enhance, the existing streetscape or the desired future character of the locality as specified under various controls in Section D4 “Commercial” of the NDCP 2023 which provides for “Development controls by land use”, including:

25. Control C-2 in Part 10.0 – “Street activation”, as the proposed location and configuration of the at-grade carpark prevents the potential for active street frontages, which could otherwise support commercial uses, and the design effectively pushes the built form to the three edges of the Site;

26. Controls C-1 and C-2 in Part 10.0 – “Street activation”, as it does not provide an appropriate design response at the ground plane to Lambton Road, and does not allow further on-site landscape treatment;

27. Controls C-4 and C-5 in Part 11.0 – “Building design and appearance”, as it presents as a continuous built form/elevation to the Lambton Road street frontage, which does not incorporate any recessed or articulated area such that it presents as a modulated building or a series of buildings; and

28. Controls C-1 and C-2 in Part 11.0 – “Building design and appearance”, as the presentation of the proposal on the western side of Cameron Street is detrimental to the existing character of the area, heritage-built forms and setting, and the desired future character for Broadmeadow as a “regionally significant growth area” (under the Regional Plan).

29. In Contention 6, Council maintained that the proposal should be refused as it is not consistent with Sections B6 “Urban heat”; C3 “Vegetation preservation and care”; and Part C12 “Open space and landscaping” of the NDCP 2023.

30. The relevant provisions in the NDCP 2023 referenced in the parties’ submissions are as follows:

“C12 Open space and landscaping

Objectives

…

4. Ensure consideration is given to the landscape character of the setting.

C****ontrols (C)

C-1. Landscaping is in scale and context with the proposed development, street reserve width, other buildings, and landscape elements within the streetscape.

…

C-6 Deep soil zones are optimised within a site by:

a. the design of basement and sub-basement car parking to avoid site coverage conflicts with tree planting – both existing and proposed

b. ensuring appropriate front and side setbacks ae provided for tree planting

…

C-7 Landscape treatment within the front setback is substantial enough to enhance the appearance and integration of the development with the streetscape.

…

C-9 Landscape design enhances the amenity and energy efficiency of the development where possible by providing shade to the northerly and westerly elevations of the buildings in summer and adequate solar access in winter.

…

8.0 Streetscape and front setbacks

Objectives

1. Ensure development integrates with the surrounding environment and built form and makes a positive contribution to the local context.

2. Maximise opportunities for walking and cycling and where possible.

3. Promote lot consolidation and ensure development does not result in isolated sites.

Controls (C)

C-1. Within established areas the front setback is consistent with those of adjoining development. Some variations to the prevailing setbacks can be considered particularly where such variations are used to create streetscape variety and interest.

…

C-3. Development facilitates pedestrian access from the street frontage and provides individual identity to buildings.

…

10.0 Street activation

Objectives

1. Ensure activation of street frontages enables a safe and accessible environment.

2. Attract pedestrian traffic along ground floor street frontages in business and employment zones.

Controls (C)

C-1. Activated street edges are to be provided at the interface to the public domain at ground level.

C-2. Ground floor retail and business uses provide multiple pedestrian accesses along the street frontage.

…

11.0 Building d****esign and appearance

Objectives

1. Ensure development responds to its context and makes a positive contribution towards the desired streetscape.

2. Building facades and exteriors shall be designed to:

a. contribute positively to the streetscape

b. be of high visual quality

c. incorporate a sensitive mix of colours, materials, treatments and finishes that are sympathetic to the site's context

d. use durable and energy efficient materials

e. avoid unsightly visually dominating features

f. minimise noise transmission

Controls (C)

C-1. Design and construct buildings to consider features of existing areas, and integrate these into the development, such as:

a. corner feature sites

b. traditional street and lane patterns

c. pedestrian walkways and other public open space areas

d. pavement design, including materials and finishes, kerb and gutter treatment

e. fine grain architectural detail.

C-2. Visually integrate development with the surrounding area and adjoining buildings through appropriate design, including articulation that responds to datum lines of key components of adjoining buildings such as street wall height, street setback, awnings, parapets, cornice lines and setbacks above street wall height.

…

C-4. Buildings are to have a maximum floor plate of 1200m² before buildings need to be split and identified as separate building elements.

C-5. The continuous length of a single building on any elevation is not to exceed 60m. Where the building length is proposed to be greater than 60m, a recessed or articulated area is to be provided sufficient to present to the street as a separate building.

…”

27. The remaining (and somewhat interrelated) issues between the parties were distilled to, first, the inadequate provision of street activation primarily in relation to the Cameron Street and Lambton Road frontages; second, noncompliance with the relevant controls and objectives regarding setbacks in the NDCP 2023 (with particular emphasis on the setbacks on Lambton Road and Cameron Street and the relationship of those setbacks with setbacks of adjoining buildings); third, the built form and scale primarily in relation to the articulation of the building along the western part of the Lambton Road frontage; and fourth, the consequential inadequate provision of landscaping.

Fabcot’s position

28. In relation to the proposal’s presentation to Lambton Road, Fabcot notes that Council accepts that the northeastern portion of the building containing the retail and leased premises identifies as a separate building. However, Council maintains its concern in relation to the presentation of the western portion along the northern facade, being approximately 70m (referred to in the evidence and submissions as the “supermarket element”).

29. Fabcot points to the evidence of Mr Stanish, Fabcot’s urban design expert, that controls C-4 and C-5 in Part 11.0 – “Building design and appearance” are met because there is clearly a “recessed or articulated area” which presents that part of the structure as three separate buildings and that this is visible in the northern elevation. Fabcot submits that the Court would accept, first, Mr Stanish’s opinion that the 70m component is appropriately and adequately divided by articulation including a roof “gable”, powder coated portal frame, and the pattern of first floor balcony setbacks; and second, Mr Stanish’s evidence that the use of additional recesses (as suggested by Council) is not appropriate to the design and use of a supermarket because of the operational constraints of a supermarket including the requirement to have “consistent aisles”.

30. Fabcot notes that while Dr Pollard, Council’s urban design expert, accepted there was “some” articulation and that such articulation could take the form of different materials and design details on a single plane and accepted that the proposed design did use different planes, he maintained a concern as to the asserted “flimsiness” of the portals which create the gabled roof appearance.

31. Fabcot submits that the Court would prefer the views of Mr Stanish because the Court can judge for itself whether the design of the building is sufficient to present to the street as separate buildings (or elements) and whether it is wholly successful in this regard is a matter of “architectural” judgment. Fabcot also reminds the Court that, during the course of the hearing, Fabcot offered (and Council accepted) that the portals are to be made more substantial with a depth of 300mm (the same as the window frames).

32. In relation to Council’s concerns relating to street activation with respect to Cameron Street and Lambton Road, Fabcot points to controls C-1 and C-2 in Part 10.0 – “Street activation” and submits that the Court would find that Mr Stanish's evidence is to be preferred to Dr Pollard’s in circumstances where Mr Stanish opines, first, that the supermarket element will act as an anchor and will encourage pedestrians to attend the Site, thereby contributing to street activation; second, that the layout along Cameron Street, with passive surveillance of the street and the ability of pedestrians to look well into the Site, connects pedestrians with the Site; third, that street activation at the eastern end of the Lambton Road frontage (not being part of the supermarket element) is clearly acceptable to Dr Pollard; and fourth, on the western (supermarket element) end of the building, the large windows will allow pedestrians to view more than 6m into the supermarket and there will be a grass verge planted with street trees such that control C-1 in Part 10.0 is clearly met.

33. Fabcot submits that control C-2 in Part 10.0 is focused on providing pedestrian access points to the Site and that Mr Stanish opines that ground floor activation is concentrated around the northeastern portion of the Site, on the corner of Lambton Road and Cameron Street, and submits that the approach makes sense given the intersection upgrades and that it provides for two pedestrian access points which satisfies control C-2. In any event, Fabcot maintains that the ability to add more pedestrian access points is limited by the operational constraints on a supermarket and the need for pedestrian access to be elevated to address flooding constraints on the Site. As such, Fabcot submits that control C-2 is clearly met and that it is unclear whether a further pedestrian access point would be desirable.

34. In relation to Council's concerns and contentions in relation to setbacks, Fabcot submits that the remaining concern relates to streetscape and the proposal’s front (Lambton Road) setback. Fabcot points to the objectives and controls in Part 8.0 – “Streetscape and front setbacks” and Part 11.0 – “Building design and appearance” and submits that the setbacks on Lambton Road (and Cameron Street) are “consistent with those of adjoining buildings” as provided for in controls C-1 in Part 8.0 and C-2 in Part 11.0. Fabcot points to the actual wording in each of those controls referring to setbacks being consistent with those of “adjoining development” and the reference to visual integration with “the surrounding area” and “adjoining buildings”.

35. Fabcot submits that apart from the literal construction of the controls, on the proper construction of NDCP 2023, no particular method of measuring setbacks is prescribed. With respect to the matters to be taken into account in deciding whether the proposed development is “consistent with” (as per control C-1 in Part 8.0) or “responds to” (as per control C-2 in Part 11.0) the setbacks of the surrounding buildings, the Court would consider, first, the consistency of the setbacks and adjoining buildings; second, whether the adjoining buildings share a street frontage; third, the physical similarity and/or the spatial relationship between the adjoining buildings and the proposed development; and fourth, the scale of the adjoining buildings and the proposed development. In any event, Fabcot maintains that the adjoining buildings do not have a consistent setback.

36. Fabcot submits that those controls do not require setbacks to be consistent with anything other than “adjoining buildings” in circumstances where there are only two adjoining buildings to the Site, being the “Carwash” site at 147 Lambton Road and the “Frontline Hobbies” site at 5 Lang Road.

37. In relation to the Carwash site, the evidence is that it is an unattractive building (a “ramshackle set of structures”) presently used for a business in the nature of a short-term or “pop-up” business that is likely to be redeveloped and provides no obvious means of measuring any setbacks. Fabcot further submits that although there is a setback on the Lambton Road frontage of the Carwash site, the evidence shows it is used to park cars in any event, and as such, it is not a setback that would be taken into account in the application of the controls. Fabcot contends that, even if the Court considered that the Carwash site would provide some setback, the Court should adopt a “flexible” approach in the application of the standards in NDCP 2023 and would take no guide from any setback demonstrated by the Carwash site.

38. In relation to the Frontline Hobbies site at 5 Lang Road, Fabcot notes that the proposal does not share a Lang Road frontage with the Frontline Hobbies site. In these circumstances, Fabcot submits that the setbacks of the proposal are consistent with, and respond to, the setbacks of the adjoining buildings.

39. Fabcot submits that Dr Pollard’s only remaining concern in relation to setbacks on Cameron Street was not in relation to the proposed building itself, but the wall which fronts the raised carpark area and notes that Fabcot has now agreed (by way of an agreed condition of consent) that the wall will be replaced with a form of palisade fence that is acceptable to Council.

40. In response to Council’s apparent reliance upon the setbacks of other buildings in the “surrounding environment” (as stated in the objectives of Part 8.0), Fabcot submits that, first, there are few multi-lot, larger scale developments in the area and mostly they have no setbacks; and second, where Council points to the single lot developments on the northern side of Lambton Road (opposite the Site) as having some setbacks, there is no reason to prioritise those setbacks over buildings actually in the immediately surrounding area because they are separated from the Site by Lambton Road, a six-lane road, with the effect that any amenity or visual connection between the two is either non-existent or marginal. Fabcot further submits that although there is a variety of setbacks in the broader “surrounding area”, some of those setbacks, for example the 1920’s heritage school located to the east of the Site at 109 Lambton Road (‘School’), relate to a completely different use and context, and are provided in a school (in the form of open space) for reasons that are unconnected with the light industrial character of the area. Similarly, the setback of the McDonald’s restaurant (to the northwest of the Site) is not an appropriate comparator because it is a single lot commercial development and is some distance from the Site. As such, Fabcot contends the highest any argument based upon the setbacks in the surrounding area could be put is that the setbacks are variable.

41. Fabcot submits that the Court would find that the proposal responds to the “key datum” of setbacks of adjoining buildings (as per control C-2 in Part 11.0). However, to the extent that is necessary, if the Court found that there was noncompliance with the relevant controls, Fabcot maintains that s 4.15(3A) of the EPA Act provides that the Court would treat the provisions flexibly and regard the present design as an acceptable “alternative solution”.

42. Fabcot makes the initial submission that Council’s written submissions in relation to Contention 6 (tree removal and landscaping) citing controls C-1, C-6, C-7 and C-9, under Part C12 of the NDCP 2023, appear to neglect the further amendments made to the landscape plans (part of Exhibit F) and the supplementary joint report of the landscaping experts where certain shade trees were replaced with shrubs. Further, the proposed conditions of consent (which are now agreed between the parties) provide for the location of planted trees, some of which will have access to deep soil planting which was an earlier concern.

43. In relation to control C-1, Fabcot submits that the landscaping proposed is in scale and context with the proposed development, street reserve, and other buildings and landscape elements in the streetscape. Fabcot submits that there is predominantly a light industrial landscape in the area with very little landscaping and there is no basis to find that the landscaping of the supermarket element is out of keeping with that of the other light industrial areas forming part of the same zoning. Fabcot submits that Council’s position is based on significant overstatement of the degree to which there are beneficial landscape elements within the streetscape, and as such control C-1 is satisfied.

44. In relation to control C-6, which requires that deep soil zones be optimised, Fabcot notes that there are two shade trees taking advantage of the deep soil zone and that the landscape architects did not require further tree planting, and that control C-6 is thereby satisfied.

45. In relation to control C-7, Fabcot submits that this control raises an issue of interpretation because it refers to landscape treatment within the front setback which necessarily assumes that there is a front setback in circumstances where on Fabcot’s view of the setback controls, a setback is not required. As such, Fabcot submits that Council is attempting to “smuggle” a form of compulsory front setback requirement into the NDCP 2023 through the landscaping provisions. Fabcot submits that the sensible reading of control C-7 requires that in circumstances where there is a front setback, it should be landscaped, and submits that control C-9 is met because it is prefaced with the words “where possible”.

46. In the circumstances, and given the interaction of the controls, Fabcot submits that landscaping on its own or in company with the other concerns remaining with Council, would not lead the Court to refuse the proposal and repeats that the earlier evidence of the landscape experts in relation to the suggestion that there was inadequate soil volumes in certain respects has been addressed in the revised landscape design. Fabcot finally submits that given the agreement between the experts, it could not be maintained that in accordance with control C-11, that the plant species now provided are not suitable for the Site’s conditions.

Council’s position

47. Council maintains concerns, with reference to the NDCP 2023 provisions generally in relation to the built form and scale of the proposal, first, in relation to the frontage of the building to Lambton Road including the lack of setback and, in particular, the form of the western section of the building; second, the proposal’s presentation to Cameron Street including the lack of pedestrian access; and third, the inadequacy of the proposed landscaping.

48. In relation to the Lambton Road frontage, Council maintains that this frontage incorporates a design which is unacceptable because the western part of the building frontage (corresponding to the supermarket element of the proposal) reads as a long single building element which is inconsistent with the NDCP 2023 provisions noted above and the existing streetscape. Further, the inadequacy of the setback from the boundary, in turn, prevents the provision of adequate landscaping otherwise consistent with the NDCP 2023.

49. Council submits that the supermarket element presents as a single building of significant length – approximately 70m in circumstances contrary to controls C-4 and C-5 in Part 11.0 – “Building design and appearance”, which require recessing or articulation so that the building reads as separate buildings.

50. Council submits that, in applying the street activation controls in Part 10.0, although there is some activation of street frontages in Lambton Road, the external wall of the supermarket element does not complement the character of Lambton Road and effectively introduces a dominant wall of approximately 70m length with minimum setback.

51. Further, in applying building design and appearance controls in Part 11.0, Council contends that the facade of the supermarket element does not present to the street as a separate building or even as a separate building element, because the articulation sought to be incorporated is unsuccessful as it has little depth and presents as a relatively flat planar form, and the balconies and windows do not contribute to any distinguishing of the three sections of this frontage.

52. Although Mr Stanish maintains that the controls are met as the overall building presents as four separate building elements which, although “grouped”, present as separate elements due to the articulation provided in the form of, first, the roof gables; second, the window frames; and third, the first floor balcony setbacks, Council submits that the Court would not accept Mr Stanish’s evidence because the gables, windows and balconies are insufficient to define the building as having separate elements. This is because, as Dr Pollard opines, first, the windows are not a form of articulation, but are simply read as a row of identical windows; second, the “gables” are faux gables because they are a parapet facade behind which sits not a gable roof but a vertical face of light “colorbond”; and third, the recessed balconies do not differentiate the supermarket area so that it is read as a separate building.

53. Council points to Dr Pollard’s evidence that the controls could be met by providing more distinct breaks such as by way of further recessing along the building frontage, and Dr Pollard’s opinion that the lack of articulation sufficient to present the supermarket element as separate buildings or building elements, combined with a lack of setback, results in this area presenting as a visually dominating feature, contrary to the objectives of the controls in Part 11.0 – “Building design and appearance”.

54. In relation to the lack of front setbacks, Council submits that Part 8.0 – “Streetscape and front setbacks”, has objectives seeking to ensure that development integrates with the surrounding environment and built form and makes a positive contribution to the local context in circumstances where there is no setback of the northern facade of the building to Lambton Road (except at the eastern end), and although Fabcot indicated that it would accept a condition requiring the facade to be pulled back by 300mm, that is not a sufficient response.

55. Although there may not be a “pattern” of landscaped setbacks (as suggested by Mr Stanish), Council submits that a number of relatively close properties display modest landscaped setbacks and that the vast majority of buildings in Lambton Road (on both sides, in particular, the McDonald’s restaurant diagonally opposite the Site on the corner of Bronte and Lambton Roads) have setbacks from the street, and notes that an objective of controls C-1 and C-2 is to ensure that a proposed development integrates with the surrounding environment.

56. Although attention is given to “adjoining development” (in control C-1 in Part 8.0), Council, referring to Dr Pollard’s evidence, maintains that significant weight should also be given to the proposal’s visual catchment, and although control C-1 refers to front setbacks which are “consistent with those of adjoining development”, Council submits that this control must be read sensibly so as to apply in the present circumstances where there is literally no “adjoining property” as the Site occupies most of the block.

57. Council submits that in the present case where there is no uniform building line, combined with the absence of setbacks and adequate landscaping consistent with the controls, indicates that not only does the proposed building not sit compatibly with the character of the area, but also, due to its size, it has the potential to significantly alter the character of the area in a way which is inconsistent with the NDCP 2023.

58. Council submits that the Court would find that the controls in Part 8.0 – “Streetscape and front setbacks”, are not met and accepts that there is little guidance as to how to design a setback on the Site when the relevant adjoining development (the Carwash site) is effectively “transparent”. Council submits that, considering the surrounding environment and the local context, effectively being the visual catchment of the Site, the proposal’s Lambton Road frontage does not make a “positive contribution”.

59. Council submits that the Cameron Street frontage, particularly between the vehicular entry and the southern end of the cafe area, is unacceptable as it does not provide a sufficient setback which is inconsistent with the setback pattern and the landscape character in the surrounding streetscape. Additional setback would allow the provision of landscaping that would sit harmoniously with various sites in the area, including the School and the McDonald’s restaurant.

60. Council submits that there is an overlap between its contentions in relation to urban design and landscaping and directs the Court to various controls in relation to urban heat effect and the various landscaping controls in Section C12 of the NDCP 2023 including general controls in Part 8.0 and controls C-1, C-6, C-7 and C-9. Overall, Council maintains that appropriate areas have not been provided for soft landscaping and deep soil planting and that consideration has not been given to the landscaped character of the area.

61. Council submits that the lack of landscaping ties into the urban design issues such that the lack of landscaping along the supermarket element on Lambton Road flows from a failure to provide a substantial setback.

62. Council maintains that given the substantial size of the Site, there appears to be no inherent constraints that have been identified as to why appropriate landscaping cannot be provided. In this regard, Council points to the fact that there is minimal planting proposed within the central part of the carpark area, where the design provides for an artificial shade structure in circumstances where the relevant control is for the provision of shade by use of trees and that artificial structures should only be considered where the site constraints do not allow for the planting of trees.

63. As such, Council submits the Court should find that the objectives in relation to deep soil planting and landscaping are not met, and that the lack of adequate landscaping is related to the urban design issues noted above, with the effect that the extent of noncompliance with the NDCP 2023 controls regarding each of building design and appearance, streetscape and front setbacks, and landscaping, would lead the Court to not grant consent.

64. Overall, in oral submissions, Council maintained that its concerns do not amount to an “overall rejection” of a development of the nature now sought. Council’s concerns are simply reflective of Fabcot’s desire not to modify the streetscape on this important and sizeable corner site in a way that “sidesteps” relevant controls in circumstances where there is no evidence that the relatively slight adjustments to the building could not be accommodated.

Consideration and determination

65. Prior to addressing the outstanding issues, it is appropriate to make four initial observations. First, while I accept that the significant narrowing of issues has helpfully reduced the hearing and the evidence received by the Court, I remain conscious that simply because a number of contentions have been addressed to Council’s satisfaction does not lessen the importance of those which remain of concern. Despite this, I have closely considered the overall planning and statutory context which I have summarised at [9]-[19] above, and although the interrelationship between the various instruments and policies (including drafts) adds to the present and future planning context (and to a certain extent explains the present development in the general area), I remain conscious that the proposal is, for present purposes, permissible.

66. Second, it is trite that a consent authority (or a court on appeal) is in a more difficult position when there is no doubt that an area is undergoing not insignificant (in some cases dramatic) planning change in circumstances where the presently applicable controls that would otherwise be the “focal point” require, at least, consideration of (if not adherence to) matters such as integration with the surrounding environment and built form, and where, as here, there is a requirement that the proposed development “responds to datum lines of key components of adjoining buildings” and does not “detract from the character of the streetscape”.

67. Third, I also consider that there is a risk in preferring one control over another where the achievement of one may be to the detriment of another. An example is the trade-off between street activation and achieving significant setbacks, or amenity savings for pedestrians, and where street activation may be achieved in only one part of the proposal (as it clearly is here in relation to the eastern part of the proposal as it addresses Lambton Road and Cameron Street). I also note that although the adequacy of street activation was a matter addressed in the expert evidence, it was not pressed by Council at hearing and, as submitted by Fabcot, Council’s expert evidence was marshalled at a time when one of the principal contentions related to the absence of street activation.

68. Fourth, as the three remaining areas of concern arise primarily under the above controls in the NDCP 2023, it is appropriate to note that in determining a development application, the Court is exercising the function of the consent authority and is required to “take into consideration” any development control plan of relevance in accordance with s 4.15(1)(a)(iii) of the EPA Act. While any relevant provision needs to be taken into account as a “fundamental element” or as a “focal point” in the decision-making process (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]), I remain conscious that s 4.15(3A) of the EPA Act effectively prevents more onerous standards from being imposed where those standards are otherwise met, and provides that if provisions of a development control plan set standards with respect to an aspect of the development and the development application does not comply with those standards, the consent authority is to be flexible in applying those provisions and allowing reasonable alternative solutions that achieve the objects of those standards.

69. In relation to the Lambton Road frontage, which I consider to be the primary issue between the parties, the differences between the urban design experts, Dr Pollard and Mr Stanish, while not insignificant can be summarised as differences in degree of attendance to the identified controls.

70. In his oral evidence, Dr Pollard candidly noted that it was possible that, with “relatively minimal changes to the design”, appropriate articulation, and it follows street activation, could be brought to what he considered the “long facade”, being the supermarket element of the building as it addresses Lambton Road. He also suggested that there could be additional discrete accesses provided to the commercial spaces giving them their own readily identifiable entry point from the street and that this would go some way to address his concerns in relation to reducing what he considers the “unbroken, inaccessible wall line that is currently in excess of 80m” to a more acceptable unbroken distance of some 68m.

71. As noted above, Mr Stanish considered that the use of additional accesses is not required by the relevant controls (being controls C-4 and C-5) primarily because the design of the proposal has adequately addressed those controls, and that the operational use of a supermarket required certain functional consistency.

72. After close consideration of the evidence, I am of the view that although there is weight in Dr Pollard’s various concerns, it is effectively a matter of degree. When the northern elevation is considered, as below, it is clear that an attempt has been made to provide a presentation of the separate elements, conscious that it is only those elements in relation to the supermarket element that remain of primary concern to Dr Pollard.

73. Confining my consideration to the supermarket element should not detract from the fact that other aspects of the proposal (including the two matters discussed further below) are also the subject of significant concern, I accept the opinion of Mr Stanish that the overall design approach to the building facade reflects an attempt to break down the presentation primarily using gable-ends expressed within a portal frame. I consider that this when combined with the balcony recesses provides a simple expression that reflects some, but not all of, the industrial buildings surrounding the Site which, on their own, do not generally offer a strong design element that should be reflected in a new development.

74. In his oral evidence, Dr Pollard remained concerned as to this “dominant component” of the building in relation to the faux gable and portal components which, although now with a slight change in size (as per Condition 6), have a relatively small depth. While I remain conscious of Dr Pollard’s opinion that the portal forms may present as “flimsy” and will be read as being false (and that this was a concern that had earlier led to the Design Review Panel’s recommendation for a modest setback which may have also allowed for street trees to achieve a better canopy without clashing with the proposed building facade), I am of the view that there is sufficient variation and articulation to satisfy the intent of the controls.

75. Although the presentation in elevation, as illustrated above, provides some visual assistance in understanding the presentation to Lambton Road, the following perspectives show, in my view that considered as a whole, a number of the elements which were criticised by Dr Pollard provide sufficient articulation. I accept the evidence of Mr Stanish and consider that the perspectives show a degree of articulation by the use of different materials including the use of a masonry wall which effects changes to presentation, as well as the use of external or discrete vertical wooden battens which are combined with recessed balconies in each of the areas referred to as “bays”. There has been an attempt, in my view not without some success, to differentiate the presentation to the street such that the supermarket element reads as sufficiently articulated even if not presenting as three separate buildings.

76. Although Dr Pollard’s further concern is that the presentation does not make a positive contribution towards desired streetscape (contrary to the objective of the control), as will be seen, it is clear that there is no specific quantitative requirement for setbacks or landscaping on the Lambton Road street frontage in the NDCP 2023.

77. When the Court, as is the case here, is faced with difficult matters of architectural evaluation, emphasis must be placed upon the controls and, for present purposes, I note that control C-2 in Part 11.0 (and the objectives) relates to the building’s appearance such that it should visually integrate development with the surrounding area and it should also contribute positively to the streetscape.

78. I find that, despite Dr Pollard’s evidence, these objectives are met. As to whether the proposal as a whole (or the supermarket element itself) is of “high visual quality”, I accept that reasonable minds may differ.

79. Further, I accept that there is no “pattern” of landscaping (or other) setbacks within the surrounding E3 zone, although there are some sites with generous setbacks (including the School and the McDonald’s restaurant) and, that the lack of setback itself is consistent with many buildings in the local context. As I will deal with later in this judgment, where there are other examples of setbacks in adjoining sites, these are setbacks not used effectively.

80. In relation to Council’s concern regarding street activation, with emphasis upon the manner in which the proposal addresses Cameron Street and Lambton Road, I consider that the objectives of Part 10.0 – “Street activation” have been met as I consider that both primary street frontages are activated, and that pedestrian traffic is clearly attracted to the proposal.

81. As opined by Mr Stanish, the supermarket element acts as an anchor and will encourage pedestrians to attend the Site which obviously contributes to street activation and, on the western end of Lambton Road, the large windows in the supermarket element will allow pedestrians from Lambton Road to view more than 6m into the supermarket. Further, there will be a grassed verge planted with street trees between the pedestrians and Lambton Road.

82. Although the more effective ground floor activation is concentrated on the northeastern portion of the Site (on the corner of Lambton Road and Cameron Street), I accept Mr Stanish’s evidence that this is appropriate as a result of the proposed signalised intersection and the fact that there are two pedestrian access points proposed which were accepted by Dr Pollard to be “adequate” in terms of being sufficiently wide.

83. Although Dr Pollard opined that more pedestrian access points would make a greater contribution and more readily address the controls, the unchallenged evidence of Mr Stanish was that the provision of further pedestrian access points is limited by the operational requirements of the supermarket which, due to security reasons and the like, express a preference (if not need) for one access point to the supermarket floor itself.

84. Dr Pollard also favoured a further pedestrian access point at the southeastern corner of the Site to cater for what he considered would be a “desire path” of pedestrians travelling north along Cameron Street. Although I accept Dr Pollard’s evidence, to some extent based upon his own understanding and knowledge of the behaviour of pedestrians, including schoolchildren, in the area, these experiences do not foreshadow how pedestrians would otherwise behave if the proposal proceeded. Further, I do not consider the absence of a further access point is a reason to refuse consent. This is not only because of s 4.15(3A) of the EPA Act (that the Court should not impose a more onerous requirement), but it is not clear that a further pedestrian access point on the southeastern corner would be desirable not least because it would require pedestrians to walk through the at-grade carpark.

85. In this regard, I also note, and accept, Fabcot’s evidence that the design of the pedestrian access itself is required to be elevated because there are flooding constraints that relate to the Site which dictate a need for steps or a ramp. Dr Pollard, despite his earlier evidence, accepted this position in his oral evidence.

86. Apart from the objectives of Part 10.0, each of the two controls raised (C-1 and C-2), in my view, has been addressed and I take into account that the explanatory note contained in the control (not reproduced above) provides that an “active street frontage” is one that promotes activity on the street with transparent glazing to allow unobstructed views from the adjacent footpath to at least a depth of 6m within the supermarket element.

87. Although obviously related to the matters above, the third matter of concern related to the controls and objectives regarding setbacks. As noted earlier, concern was expressed in relation to the lack of setbacks primarily to Lambton Road and Cameron Street.

88. Part 8.0 – “Streetscape and front setbacks” contains the objectives of ensuring integration with the surrounding environment and built form, and making a positive contribution to the local context, which are sought to be achieved by controls which on their face require front setbacks to be consistent with “adjoining development”. While some reference to setback is also made in Part 11.0 – “Building design and appearance”, where control C-2 therein provides that proposed development visually integrates with components of adjoining buildings including street setback, for the reasons that follow, I am of the view that given the nature and size of the proposal, it will itself create, and be seen in, its own context and the fact that it may not be reflective of development presently in the surrounding area, is neither a determinative nor persuasive, matter.

89. Although there was some dispute between the parties as to how setbacks were (and are) properly to be measured, the evidence does not lead me to the view that there is any form of consistent setback that would otherwise be appropriate as a datum point (or yardstick) for this proposal.

90. It is suggested by Fabcot that the controls do not require setbacks to be consistent with anything other than “adjoining” buildings. Accepting that, the two adjoining buildings, being the Carwash site and the Frontline Hobbies site, do not in my view provide any assistance in the consideration and application of any of these controls for the reasons noted in Fabcot’s submissions at [36]-[38] above. Despite this, in relation to setbacks, I have considered the “surrounding” development that is not “adjoining” as suggested by Council.

91. On the basis that the NDCP 2023 does not provide any particular method of measuring setbacks and, except to the extent that it refers primarily to “adjoining buildings” in determining whether the proposal is “consistent with” or “responsive to” setbacks of adjoining buildings (in circumstances where the adjoining buildings do not have any, or at least any consistent, setback), I am of the view that the Cameron Street frontage has an appropriate building setback and, as the concern remaining with Dr Pollard relates primarily to the setback of the wall which fronts the raised car parking area, I find that Fabcot’s proposed substitution of a palisade or fence (as now provided for by Condition 6) provides an appropriate response to this concern. As such, I do not consider setback concerns in relation to Cameron Street, on their own, or in combination with other issues, are determinative in any way.

92. Council’s concerns (including lack of setback) in relation to the Lambton Road frontage remain. Although Dr Pollard accepted that the setbacks in the eastern portion of the Lambton Road frontage are acceptable, he remained concerned with the supermarket element (dealt with in detail above) even with the more recent amendments (by Condition 6) providing that the northern wall effectively be set back by 300mm (with only the window boxes or frames, the vertical timber battens, and the portals for the gabled facade extruding beyond that to the boundary). As I have noted earlier, I do not consider that that setback could be seen to be “inconsistent” with those of setbacks of the Carwash site or the Frontline Hobbies site in circumstances where both developments have little effective setback. These properties do not provide appropriate comparators for the application of the controls.

93. I have also considered the evidence relating to buildings in the “surrounding area” as suggested by the parties in their evidence and submissions. The majority of the larger developments appear to have very little setbacks and while Dr Pollard points to the setbacks of various developments on the opposite (northern) side of Lambton Road which have a variety of setbacks, and, further developments (including the School and the McDonald’s restaurant), I accept the submission of Fabcot and find that the properties across Lambton Road are not persuasive comparators and that the various discrete developments otherwise considered do not provide assistance leaving aside the literal application of the control referring only to “adjoining”.

94. I understand that Council maintains that the nominated urban design issues include concerns in relation to landscaping and, cumulatively, present as compelling reasons to refuse consent. Moreover, Council notes that Ms Dumbleton, Fabcot’s landscape architect, gave evidence that a 1m to 2m setback on Lambton Road would provide adequate landscaping to meet the objective of the control, and contends that this was not provided.

95. Even if it be the fact that landscaping (and setback) should have been provided to the supermarket element frontage, the adequacy or otherwise of landscaping is obviously related to the urban design issues. Given the nature of the proposal, which I consider may set a precedent which may defeat the controls seeking to provide for further landscaping, I do not consider that the adequacy or otherwise of the landscaping proposed, in the present circumstances, including that the proposal is in an area that is a regionally significant growth area and where planning for the Broadmeadow area is currently evolving, is a matter that should be persuasive against the grant of development consent.

Conclusion

96. Although I accept that the planning instruments foreshadow changes to various planning controls, I have given consideration to the Metropolitan Plan and the Regional Plan as suggested by Council. Conscious of the fact that these matters are to be given some weight as an aspect of the public interest (S**tockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 at [88]-[91]), this creates difficulties in firmly applying the controls in the current NDCP 2023. It is clear, and Council accepts, that the implementation of zoning suggested in, for example, the exhibited version of the Draft Strategy is not “certain and imminent”, the Draft Strategy does indicate the potential for the Site to be rezoned to permit medium density mixed-use development up to 10 storeys including residential use.

97. In reaching my decision, I have also taken into account the objectives of each of the earlier B5 (Business Development) zone and current E3 (Productivity Support) zone. I also accept that the town planning experts have agreed that there are aspects of the development which are clearly in the public interest including the identified demand for a local supermarket and its ability to service both existing and future residents and workers which has the effect of increasing the ability of the existing and future population to shop locally. Moreover, while conscious of the concerns regarding urban design (including streetscape and landscaping), and the argument that the articulation provided for in the supermarket element is insufficient to meet the requirements of the controls, I do not consider these concerns are determinative in circumstances where I have found that there has been a sufficient attempt to meet the controls where the controls (particularly in relation to the front setback control), are qualitative rather than quantitative, and where I have taken into account the general nature of setbacks primarily along Lambton Road.

98. For the above reasons, I find that it is appropriate to uphold the appeal and grant development consent subject to the conditions (now) agreed to between the parties being Annexure “A” to this judgment.

Orders

99. The orders of the Court are:

100. The appeal is upheld.

101. Development Consent is granted to the Development Application 2024/00189 subject to the conditions in Annexure “A”.

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Annexure A (3472982, pdf)

Annexure B (380830, pdf)