FFS Canterbury Pty Ltd v Canterbury-Bankstown Council

The site and its context

1. The subject site has an area of 418.1m² and is legally described as Lot 5 Section 1 in DP 9055. The site currently contains a single storey dwelling house with a detached garage at the rear. Vehicular access to the site is via Clunes Lane at the rear.
2. Development in the locality is varied. and the area is undergoing a transition from lower density development to a higher density precinct. Adjoining the site to the east is a five storey mixed use development that is under construction, to the west is a two-storey brick dwelling house. Development to the north of Clunes Lane is predominately single storey dwelling houses of brick construction.

Amended Proposal:

1. Following conciliation, the proposal was amended. The key changes to the development are: 1. The roof top communal open space was deleted and redesigned to be accommodated on the ground floor; 2. A reduction in the overall number of boarding rooms from 46 to 44; 3. Relocation of the proposed car lift to provide greater manoeuvrability for vehicular access to Clunes Lane; 4. Improvements to manoeuvrability of vehicles in the basement car park; 5. An increase to the building separation of Block A and B and alignment of the front building setback with the setback of the adjacent development; 6. Amendments to the architectural design to incorporate horizontal privacy blades to openings reduce overlooking to properties to the north.
2. In response to the joint report prepared by the expert planners in the proceedings, the applicant has further amended the proposal as follows: 1. Removal of a boarding room on the ground floor to accommodate a common room in the block fronting Canterbury Road (Block A); 2. Amalgamation of single boarding rooms 13 and 14 to create a double room and to provide an increase in building separation between Block A and Block B at level 03 of the development; 3. Incorporation of the managers car space within the car stacker. At the commencement of the hearing, the applicant was provided leave to rely on these plans. The Council did not oppose leave being granted, or seek consideration of costs.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Jacob Yammine, CDA Architects, registered architect (8395). No contentions are raised in relation to the developments compliance with SEPP 65.
3. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the amended application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
4. The subject site has frontage to a classified road (Canterbury Road) and as such cl. 101 of State Environmental Planning Policy (Infrastructure) applies. Vehicular access to the site is provided via Clunes Lane. NSW Roads and Maritime Services provided concurrence to the development application on 25 January 2016. Acoustic Logic Pty Ltd has prepared an acoustic assessment for the applicant (Exhibit 3), and the requirements of the NSW Roads and Maritime Services concurrence are included in the draft conditions of consent, meeting the requirements of this policy. Relevant conditions are 21 and 22.
5. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl. 1.2(2)): (a) to provide for a range of development that promotes housing, employment and recreation opportunities for the existing and future residents of Canterbury, (b) to promote a variety of housing types to meet population demand, (c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community, … (e) to revitalise Canterbury Road by encouraging a mix of land uses that does not detract from the economic viability of existing town centres, …
6. Pursuant to LEP 2012 the site is zoned B5: Business Development. The objectives of the zone are to be considered in the assessment of the application (cl. 2.3(2)). The objectives of the B5 zone are as follows: To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and support the viability of centres; To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design; To support urban renewal that encourages an increased use of public transport, walking and cycling; To encourage employment opportunities on Canterbury Road and in accessible locations.
7. The proposed development comprises a 'commercial premises' and 'residential accommodation' in the form of a boarding house. Development for the purposes of commercial premises is permissible with consent in the B5 zone. Generally residential accommodation is a prohibited use in the B5 zone, however Schedule A of LEP 2012 provides additional permitted use for certain land fronting Canterbury Road, including the subject site. The effect of this clause is to enable residential accommodation, where it forms part of a 'mixed use' development.
8. Part 4 of LEP 2012 contains principal development standards. Relevantly at cl. 4.3(2) the LEP mandates a maximum building height of 18 m for the subject site. It is agreed by the planning experts that the development complies with this standard. No floor space ratio control applies to the site.

Development control plan

1. The Canterbury Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are: 1. Part 1: Introduction; A1.9 Savings Provision If an application has been made before the commencement of the DCP in relation to land to which the DCP applies, and the application has not been finally determined before that commencement, the application must be determined as if the DCP had not commenced. The relevant DCP for the proceedings is Amendment 3, in force from 30 September 2016. 1. Part 3: Business; Objectives for Business Centres O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function. O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal. O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres O4. Facades are maintained in the business centres where they contribute to the character of the traditional main streets. O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians. O6. Impacts of commercial development on adjacent residential properties are minimised. Canterbury Road Business Zone Characters: Canterbury Road Revitalisation strategies for the Canterbury road corridor are contained in the Canterbury Road master plan. Some centres along Canterbury Road are recognised as local centres. Others are identified as more business enterprise areas and will not have the range of shops, and services that the local centres have, but will have larger format buildings such as showrooms and warehouses 1. Clause 3.1.2: 'Site Amalgamation and Minimum Frontage' Objectives O1. Site amalgamation in specific locations to achieve the full development potential of land and best use of the features of an area, such as character, transport, community services and natural environment. O2. Efficient vehicular access to parking and servicing and reduce driveway crossings. O3. Efficient building envelopes to achieve optimum density. Relevant Controls i. Except as set out below, minimum site area or amalgamation is not required. … iii Where comprehensive redevelopment is proposed in the B5 zone, the minimum site frontage is 30m. Note: This control is to be applied to Canterbury Road frontages and only when the consolidation of the B5 Business Development and B6 Enterprise Corridor zones are gazetted within the Canterbury Local Environmental Plan 2012 as resolved by Council on 31 October 2013. … 1. Clause 3.1.6 Height Controls … Floor to ceiling heights iii. Provide a minimum 3.3m floor to ceiling height for the ground floor. iv. Provide a minimum 2.7m floor to ceiling height for residential floors. v. Minimum car parking floor to ceiling height 2.8 m: vi. The floor to ceiling height may need to be increased to meet the requirements of the intended use, however, the maximum building height will still need to be complied with. 1. Clause 3.1.7 'Depth/ Footprint' Relevant Objective: … O3. An appropriate level of depth is available to create viable building spaces for retail and commercial use. … Relevant Controls Commercial and retail … v. Minimum depth 10m, … 1. Clause 3.1.8 Setback Objective O1. Establish the desired spatial proportions of the street and define the street edge. O2. The traditional street building wall is maintained where this is the existing or desired future character. O3. Minimise building size and bulk by setting back upper storeys. O4. Minimise amenity impacts on adjoining properties. O5. Increased setbacks along Canterbury Road provide for possible future implementation of street parking and assist in reducing traffic noise impacts. Controls i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table. ii. A rear setback is not required if the land adjoins a lane 1. Clause 3.1.9 'Building Separation' Objective O1. Separation between buildings promotes improved levels of residential amenity in new development, and preserves reasonable sunlight, privacy and general amenity for residents of existing dwellings. Relevant Control i. As a minimum provide the separation, specified in the following table, 1. Clause 3.1.12 Car parking iii. If the parking calculation results in a fraction of a parking space, the number of spaces required round it off to the nearest whole number. Clause 6.8 Parking Rates Controls Office Premises 1 space per 40 m² 1 Courier space 1. Clause 3.3.1 -Visual privacy Objectives O1. Reasonable levels of visual privacy for residents, inside a building and outside within the property, during the day and at night. O2. Visual privacy is not compromised while maximising outlook and views from principal rooms and private open space, and maintaining passive surveillance of public areas, semi-public areas and school playgrounds. O3. Avoid direct overlooking of adjoining windows and balconies. Controls i. Locate and orient new development to maximise visual privacy between buildings on and adjacent to the site, and to minimise direct overlooking of rooms and private open space: • Provide adequate building separation, and rear and side setbacks when appropriate, • Orient windows of new living areas, and balconies or terraces, towards the street and rear of the lot, particularly on narrow sites, to use the street width and rear garden, or podium depth, to increase the separation distance, and avoid directly overlooking neighbouring residential properties. ii. Use balconies to screen other balconies and any ground level private open space. iii. Separate communal open space, common areas and access routes through the development, from the windows of rooms, particularly habitable rooms. iv. Change the level between ground floor apartments with their associated private open space, and the public domain or communal open space. v. Use detailed site and building design elements to increase privacy without compromising access to light and air. Design detailing may include: • Offsetting windows of apartments in new development and adjacent development windows, • Recessed balconies and/or vertical fins between adjacent balconies, • Solid or semi-solid balustrades to balconies, • Louvre or screen panels to windows and/or balconies, • Fencing, vegetative screen, planter boxes, pergolas - demonstrate that they would not be overshadowed to an extent that would compromise their efficient operation. 1. Clause 3.3.2 Acoustic Privacy O1. Reasonable levels of acoustic privacy for residents, externally and internally, during the day and at night. O2. The effect of excessive ambient noise is minimised by siting and architectural design and detailing. O3. The impact of rail and road noise and vibration is minimised to building occupants. O4. Protect new and existing dwellings from intrusive noise. Controls Adjoining railway or busy road i. Address all requirements in 'Development Near Rail Corridors and Busy Roads (Interim Guideline') which has been published by the NSW Department of Planning. 1. Clause 3.3.3 Open Space Objectives O1. All residents have access to private and functional open space on their land, such as private yards, courtyards and balconies or roof top terraces. O2. All residents in multiple dwelling buildings have access to consolidated, semi-private and functional communal open space on their land. O3. Private and communal open space is: ­Tailored to the type of dwelling or dwellings, or tailored to the use if not residential, and provides residents and other users with active and passive recreation opportunities, ­Designed to take advantage of environmental circumstances such as solar access, views and prevailing breezes, ­Designed to promote the enjoyment of outdoor living, ­Located and landscaped to provide a pleasant outlook and contribute to the pleasant appearance of a property, ­Located so that there is passive surveillance from residences and other premises. … Controls … Communal open space xiii. Communal open space may be provided on podiums or terraces, and in any deep-soil setback or separation between buildings in shop top housing: xiv. Minimum 6 m dimension for each communal open space. xv. Consolidate communal open space into recognisable areas with reasonable area, facilities and landscape for the uses it will accommodate and design to generate a variety of visible pedestrian activity. xvi. Provide in locations that are sunny, and are adjacent to, as well as visible from, the main building lobby. … 1. Clause 6.6 ' Landscaping Objectives O1. Attractive settings for development, and attractive streetscapes and public domain. O2. Retention and planting, of large and medium size trees, and healthy growth of trees in urban areas. O3. To contribute to the quality and amenity of communal open space on rooftops, podiums and in courtyards. O4. To assist with management of the water table and water quality. O5. Principles of Ecologically Sustainable Development (ESD) and biodiversity are incorporated into landscape design and maintenance of habitat for indigenous plants and animals. Clause 6.6.6 - Visual Impact and Visibility Design Controls i. Soften the visual and physical impact of sealed areas such as car parking, loading and unloading areas, and building mass with landscaping that is appropriate in scale. Clause 6.6.10- Deep Soil and Setback areas Objectives i. Provide sufficient depth of soil to enable growth of mature trees. ii. Use a combination of groundcovers, shrubs and trees. iii. Use shrubs that do not obstruct sightlines between the site and the public domain. iv. Plant canopy trees that are capable of achieving a mature height of greater than 5m. 1. Part 6: Generic Controls Cl 6.6.6 Visual impact and Visibility Control (i) Soften the visual and physical impact of sealed areas such as parking, loading and unloading areas and building mass with landscaping that is appropriate in scale. Cl 6.8 Parking and Vehicle Access Objectives O1. Adequate car, bicycle and service vehicle facilities for the building users and visitors, depending on building type and proximity to public transport. O2. Casual parking on streets is available in centres to support local business. O3. Overflow parking and other traffic impacts are minimised in residential streets and neighbourhoods. O4. Servicing by larger vehicles occurs off‐street in such a way that reduces impacts on the pedestrian environment. O5. Vehicle facilities are designed and constructed in accordance with relevant standards and are functional and safe. Cl. 6.8.3 Minimum parking and servicing requirements Controls … iii. Parking is the combined requirement based on the rates of parking for each land use. iv. Where the CDCP parking rates do not cover a proposed development a parking assessment is required to determine the specific parking arrangements for the development. The assessment will be undertaken by a qualified traffic planner and analyse: • Parking needs of occupants, staff and visitors, • Bicycle parking, storage and secure facilities, • Service and delivery needs and facilities, • Needs of people with disabilities, • Surveys of similar establishments in comparable locations (or demonstrate requirements by other appropriate means). Cl. 6.85 Relevant standards. i. Refer to RTA Guide to Traffic Generating Developments 2002, particularly in relation to parking analysis and traffic study preparation: ii. All parking, and associated infrastructure, is to comply with Australian Standard 2890 Parking Facilities series, which includes: • AS 2890.1: Off‐Street Car Parking • AS 2890.2: Off‐Street Commercial Vehicle Facilities • AS 2890.3: Bicycle Parking Facilities • AS 2890.6: Off‐street Parking for People With Disabilities. Cl. 6.8.15 Mechanical Parking Devices i. Parking arrangements requiring mechanical means will be assessed based on the merits of individual development proposals. ii. All mechanical parking devices must be located in an enclosed area within the building or facility they serve. iii. Provide adequate vehicle storage and queuing areas to ensure that queues of vehicles awaiting service by the installation do not extend into circulation areas or off‐site under normal foreseeable conditions. iv. Locate and design so that noise and vibration generated by the installation are kept to a minimum and does not interfere with the amenity of adjoining uses.
2. The relevant provisions of DCP 2012 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) of the Act has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2012. The concerns raised in these submissions can be summarised as follows: 1. The potential for residents within the boarding house to overlook adjoining residential dwellings; 2. The safety of vehicles accessing the site from Clunes Lane due to its narrow width, and concern about the impact of the development on traffic congestion within the lane; 3. Concern that the development does not comply with the LEP height limit; 4. A view that the proposed development is out of scale with the surrounding buildings; and 5. Whether the parking provided is sufficient. These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

1. The Court heard expert planning evidence from Mr David Furlong, for the applicant, and Mr Warwick Gosling for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit E.
2. I have reviewed the agreed evidence provided by planning experts to support the resolution of the agreed contentions in relation to height compliance, and the lack of a planning mechanism to require the dedication of land at the boundary with Clunes Lane. I am satisfied that the experts have appropriately considered the issues raised by the contentions, and the appropriate planning controls, and I accept their conclusions.
3. The Court heard expert evidence from Mr Ken Hind, for the respondent, and Mr Robert Varga, for the applicant in relation to vehicle movements, parking and manoeuvrability. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit D.
4. I have reviewed the agreed evidence provided by the traffic and parking experts in support of the narrowing of the outstanding contentions to: the compliance of the mechanical car stacker with the relevant Australian Standard; and the appropriateness of the proposed vehicular waiting bay. I am satisfied that the experts have appropriately considered the issues raised by the contentions, and the appropriate planning controls, and I accept their conclusions.

Is the proposed frontage (width) of the site acceptable?

Canterbury Road:

1. Mr Furlong's evidence is that whilst cl. 3.1.12 (iii) of DCP 2012 seeks a minimum 30m frontage for Canterbury Road it is equally clear that this requirement of the DCP does not commence until the 'consolidation of the B5 Business and B6 Enterprise Corridor zones are gazetted with the Canterbury LEP 2012…' (note to cl. 3.1.12 LEP 2012). It is agreed between the parties that no such amendment to the LEP has occurred and that as a result the frontage control does not apply.
2. In oral evidence it was agreed by the experts that the development complies with the controls in DCP 2012 that work together to generate the built form on the site, namely: setback; street wall height; setback of development above the street wall; awning configuration and provision of pedestrian access from Canterbury Road.
3. It was Mr Furlong's opinion that the proposed 9.145m frontage of the site will have no impact in the achievement of the desired future character of Canterbury Road as the development provides the intended land use, and the intended built form generated by the controls, namely mixed use development with ground floor commercial and upper levels of residential.
4. In relation to streetscape, it was Mr Furlong's oral evidence that the planning instruments have no control that mandates a minimum shop width. Therefore, irrespective of the site frontage of the developments, or whether they occur over one site or more, the modulation and fenestration of the developments at ground level will respond to the market desire for commercial and shop uses of a specific dimension. It is his conclusion that this rhythm of articulation will be more discernible to a member of the public, and more important in the perception of streetscape character, than the developments site frontage.
5. In discussing the likely future character of the precinct Mr Furlong identified that two properties within proximity of the site, at the corner of Wonga Street and Canterbury Road, will maintain narrow width at street level. It is his evidence that, as they are heritage listed, the planning controls would require retention of the façades of these buildings. As a result, the narrow frontage of the subject site would not be inconsistent with the likely future character of the local area.
6. Further Mr Furlong's relies on his analysis of the adjoining commercial development, currently under construction to the east of the subject site. This development, on his assessment, has 25% of its frontage to Canterbury Road occupied by services and entry the residential component. His assessment of the proposed development is that it has a similar proportion of the Canterbury Road frontage of activation versus access. In his view, this consistency of proportions adds to the developments consistency in terms of character. In conclusion it is his evidence that any variation in site frontage width of the development will not be perceivable in the public domain due: 1. the consistency of the proposed development, and the adjoining development with Councils street wall controls, awning height and alignment as well as the consistency of the upper floor setbacks; 2. the likely further articulation that will result from the sub-letting of the commercial spaces that will occur in at ground level which will create a rhythm of smaller spaces; 3. the consistency between the proposed use and the adjoining compliant development in the proportion of the façade that is activated by commercial uses; and 4. the heritage facades within proximity of the site that form part of the character if the local area and are of a similar narrow frontage.
7. In the alternative whilst Mr Gosling agrees the control at 3.1.2 does not apply, he relies on the objectives of the control in establishing the appropriate response to the site. These objectives are: O1. Site amalgamation in specific locations to achieve the full development potential of land and best use of the features of an area, such as character, transport, community services and natural environment. O2. Efficient vehicular access to parking and servicing and reduce driveway crossings. O3. Efficient building envelopes to achieve optimum density.
8. It is Mr Gosling's evidence that the likely development pattern along this section of Canterbury Road (between Wonga Street and Phillips Avenue) is: 285-293 Canterbury Road, (combined frontage of 36 metres) 277-283 Canterbury Road, (new development) (combined frontage of 36 metres) 269-275 Canterbury Road (combined frontage of 20m) It is his opinion that this pattern of development would match the amalgamation of the new development adjoining the site to the east and would be consistent with the stated future control, which would apply to the site relating to a 30m frontage once the LEP is adopted (Exhibit E).
9. Given the above potential pattern of site amalgamation for development it is Mr Gosling's conclusion that the proposed frontage of the development site will be out of character with the future pattern of development in which all frontages are approximately 30m. He concludes that it is undesirable to have this development sandwiched between two other developments with frontages of approximately 30 metres. If this occurs, the rhythm of the built form that would otherwise occur will be lost (Exhibit E).
10. In the alternative, if the sites are developed individually with approximately 10m frontages, it is Mr Gosling's opinion that the ability for the street to be activated will be lost through the duplication of residential lobbies because of the development of individual buildings on narrow sites, rather than being combined. In oral evidence, Mr Gosling accepted that the current planning controls do not contain provisions that aim at reducing the number of or frequency of lobbies within the frontage or requiring commercial to occupy the full site frontage. However, he maintains the view that the development of the subject site, and a continuation of the 9m frontage pattern would result in a different rhythm than that which is sought by the controls and achieved in the adjoining development.
11. In submissions, Ms Duggan argues that as the DCP control 3.1.2 does not apply to the site because of the effect of sub-cl (v) (iv) to the control, which don't identify the subject site as being within the relevant locations. Therefore, as the control does not apply Council cannot rely on the objectives.
12. In submissions Mr Seton argues that the following objective of the B5 zone requires the development to provide a 'large floor area' which is not achieved by the development: to enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and support the viability of centres; He submits that the floor plate provided by the proposed development is not large in the context of the objectives of the zone.
13. In relation to this point, Mr Furlong's evidence is that in the context of the use of a site for bulky goods the area provided in the subject development proposal is not large. However it is his conclusion that the zone objective in question is required to relate all forms of commercial, and other uses that are permissible in the zone, and that the words 'require a large floor area' refers to the use of bulky goods, not all of the permissible uses.

Clunes Lane:

1. Council raises concern that the narrow site frontage also affects the streetscape presentation of the development to Clunes Lane. Mr Gosling relies on cl. 6.6.6 of DCP 2012 to argue that the development does not provide adequate deep soil landscaping or screening. It is Mr Gosling's evidence that the narrowness of the site results in the rear ground floor elevation being dominated by driveway crossings, and service access to the basement. Unlike a development of a greater width, no allocation for landscaping is achievable in the narrow frontage. It is his evidence that the laneway should be designed to be of pedestrian scale.
2. In submissions Mr Seton argues that the streetscape at Clunes Lane offends the second objective of the zone, namely to provide for residential use in conjunction with mixed-use development to create an attractive streetscape supported by buildings with a high standard of design. It is his submission that this results from the narrow lot width and the prevalence of hardstand. In addition Mr Seton submits that the laneway provides an important link to through to Cooks River Park and that the development offends the objective of cl. 3.1.2 Site Amalgamation and Minimum Frontage of DCP 2012.
3. The evidence of Mr Furlong is that the development as a whole meets the objective and in and of itself the objective is not intended to apply solely to the Clunes Lane façade. It is his evidence that as there is no requirement in cl.6.6 of DCP 2012 for a landscaping plan to be prepared in association with a boarding house, any subclauses within that section of the DCP are not applicable to the development.

Findings

1. With regard to the relevant controls, and the evidence of the experts in this case, I agree with the conclusions of Mr Furlong that the desired future character will be achieved by the development of the subject site, despite the nine-metre frontage. I have reached this finding on the basis that: 1. the development is compliant with the key built form controls in DCP 2012 [refer paragraph 17]; 2. I accept the evidence that the proposed development will have a similar proportion of its frontage as activated as the adjoining development, despite their varied lot width; 3. I concur with the view that due to the shopfront articulation the variation in lot width will not be perceivable in the public domain (refer [30]).
2. I am not satisfied that it is reasonable to presume that the development pattern in proximity to the site will be in the form proposed by Mr Gosling given the current disparate ownership of the sites and the likely impact of the heritage provisions identified by Mr Furlong.
3. I am satisfied that the frontage of the development to Clunes Lane is acceptable. In the absence of a control in the DCP containing a specific requirement for landscaping of developments fronting rear laneways, I find that the overriding objectives of the zone (urban renewal, attractive streetscapes, and buildings of high quality design) are achieved by the development.
4. I am satisfied that the development meets the intent of the DCP control 3.1.2 Site Amalgamation and Minimum Frontage. I find that the development realises the objectives to achieve the full development potential of land and best use of the features of an area, such as character, transport, community services and natural environment, and efficient vehicular access and driveway crossings as well as efficient building envelopes.
5. I am not satisfied by the submission that to be consistent with the objectives of the B5 zone requires the provision of a large floor plate, irrespective of the use proposed. I find that the proposed frontage (width) of the site is acceptable.

Is the proposed depth of the commercial premises satisfactory.

1. Council argues that the application should be refused because the depth of the commercial component of the development does not comply with the minimum building depth of 10m as required by cl. 3.1.7 of DCP 2012.
2. It is the evidence of Mr Gosling that the commercial tenancy does not comply with the numerical standard in the DCP due to the narrow site frontage. It is his opinion that the depth of the space does not provide flexibility into the types of uses that could lease this space, compared to a wider deeper floor plate as required by the DCP. This lack of flexibility does not provide the opportunity for the space to adapt to changing market forces (Exhibit E). Mr Gosling argues it is not in the public interest for the development to be built and commercial space to be vacant.
3. The evidence of Mr Furlong is that the viability of the proposed commercial tenancy is a matter for the market and that in his view there are a number of localised types of retail or commercial service providers that could occupy the space. Ms Duggan submits that the commercial space proposed by the development is capable of fully complying with the Councils controls if the space was reduced in width. This is demonstrated in the following extract of the plan in which the area indicated in blue is the section of the commercial space that complies with the minimum depth requirement: It is Ms Duggan's submission that the proposed development provides a space that exceeds the minimum dimensions of a compliant scheme, and on merit, the commercial space proposed provides more street activation than a strictly compliant scheme and that such activation is sought by the Council's development controls.

Findings

1. As noted in [19] s79C(3A) of the Act mandates a flexible approach to the application of development controls. In Bellenger v Randwick City Council [2017] NSWLEC 1 Preston CJ, at [35] states: Section 79C(3A)(b) requires the consent authority to allow reasonable alternative solutions, that is to say, reasonable solutions that are "alternative" to the solutions embodied in the standard that also achieves the objects of the standard. In this case, the relevant objective of the standard is to provide an appropriate level of depth to create viable building spaces for retail and commercial use.
2. I accept the submission of the applicant that, at its most literal interpretation compliance with the control could be achieved in this case by a reduction in the width of the space (as identified in [4649 however to do so would be to provide a reduction in activation of the street and overall a smaller commercial space. Whilst compliant, such design, would be a poorer urban design outcome than that which is proposed by the development.
3. I am satisfied that the proposed commercial space as proposed is a reasonable alternative to the requirement to provide a minimum depth of 10m across the full width of the space. I find that the proposed development and satisfies the objective of the relevant clause (cl. 3.1.7).
4. In response to the evidence of Mr Gosling re the viability of the commercial use, Fabcot Pty Ltd v Hawkesbury City Council (1977) 93 LGERA 373 (at 378-379) Lloyd J relevantly states (although referring to a similar provision to s 79C(1)(b)) that: It is not part of the assessment of a proposal under the Environmental Planning & Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. Moreover, it is at least arguable from the fact that the Trade Practices Act now applies to local government councils, that if a local council were to refuse or to limit a proposal for development on the ground of competition it could be guilty of anti-competitive conduct contrary to Pt 4 of that Act. I am satisfied that the configuration of the shop is such that it is capable of being utilised for commercial use, and that the proposed depth of the commercial space is satisfactory.

Is the proposed car stacker an acceptable means of parking provision?

1. Council argues that the development application should be refused because the proposed design of the car park, and the use of the mechanical car stacker, is unacceptable. The expert evidence in the proceedings focussed on compliance of the mechanical car stacker with the relevant Australian Standard, and the resulting restriction on the size and height of vehicles that can be accommodated within the facility.
2. In support of the original development application, Varga Traffic Planning prepared a Traffic and Parking Assessment report (Exhibit 1). The report concludes that, in applying the relevant controls in DCP 2012, the commercial component of the development requires the provision of 1.4 (rounded to 1) spaces for the tenancy, 1 visitor and a courier space. In the absence of specific of street parking rates in DCP 2012, the report adopts the rates required in State Environmental Planning Policy (Affordable Rental Housing) 2009 of 0.2 spaces/ room as an indicative parking requirement. As the amended plans have a total of 42 boarding rooms, it is the applicants submission that the generation for the boarding house component is 8.2 spaces (rounded to 8), plus an additional space for the site manager. Applying the requirement in the DCP at 6.8.2 to round down, this generates a demand of 12 of which the development proposes 13 spaces. In addition, the development proposes nine bicycle and nine motorbike spaces within the basement as required by DCP 2012.
3. Relevantly the Australian New Zealand Standard AS 2890.1: Parking facilities (the parking standard) provides the following definitions at 1.3: 1.3.6 B85 Vehicle The design motor car whose physical dimensions represent the 85th percentile class of all cars and light vans on the road 1.3.7 B99 Vehicle The design motor car whose physical dimensions represent the 99.8th percentile class of all cars and light vans on the road By reference to Appendix A of the parking standard, these vehicles have the following design dimensions: B 85: 4910 (l) x 1870 (w) mm overall B 99: 5200 (l) x 1940 (w) mm overall
4. It is agreed between the experts that the proposed car stacker is not capable of accommodating the maximum vehicle length of the B99 vehicle, as provided for in the parking standard. The experts agree that the proposed WOHR Combilift 543 car stacker in the "premium model" has an overhead clearance of 2.1m, achieving the height requirement for the B99 vehicle. It is the evidence of Mr Varga that the development has been designed to accommodate this model of car stacker.
5. The issue in contention in relation to compliance with height is therefore resolved if the development incorporates the WOHR Combilift 543 car stacker in the "premium model", which accommodates both the B85 and B99 vehicle. The outstanding issues in contention remains the compliance of the car stacker with the parking standard as it relates to width and length of parking spaces.
6. The experts agree that the relevant section of the parking standard is 2.4.1 (a) which states the nominal length of a parking space in a parking module shall be 5.4m. I note that the parking standard provides exceptions to the length where the end overhang of the vehicle can be accommodated (e.g. at a kerb) or where it is designated as a small space.
7. It is the evidence of Mr Hind that the length of some common vehicle types exceed 5m. His evidence is that these vehicles include: VX -VY Holden Commodore Wagon: 5046mm EL - BF Ford Falcon Wagon: 5053 -5077mm However, he is satisfied that the vehicle stacker, as proposed, can accommodate the B85 vehicle and its associated swept paths. It is his evidence that the car stacker, to be compliant with the parking standard, should accommodate up B 99 vehicle.
8. In contrast Mr Varga argues that the car stacker, at 5m length, can accommodate 85% (B85) of vehicles as well as the following 4WD/SUV models: Toyota Land cruiser: 4990mm Toyota Prado: 4930mm Mercedes ML: 4804mm BMW X5: 4880mm Jeep Grand Cherokee: 4623mm It was Mr Varga's oral evidence that the B99 vehicles tend to be luxury cars, and in his view, it is unlikely this development would generate demand for this size vehicle.
9. In relation to compliance of the car stacker with the parking standard requirement for width, the proposed car stacker has an up-stand of approximately 195mm between the spaces as part of the platform design. During the oral evidence of the experts, they addressed the requirement, under section 2.4.1 (b) (ii) of the parking standard, to include an additional 300mm to the required space width to accommodate any obstruction adjacent the parking space. It is the evidence of Mr Hind that if applied to the current proposal the need to accommodate the up stand obstruction would result in a total width of 2700mm (2400 +300) for clear access on one side, and 3000mm for clear access on both sides.
10. It was Mr Varga's evidence that the maximum width of the platform for the WOHR Combilift 543 in the "premium model" is 2700mm. If this size were implemented in the project, the number of car spaces provided would be less as the proposal currently accommodates a narrower model with a platform width of only 2500mm. This would reduce the parking provision to two bays. However it was his evidence that this increased width is unnecessary for the following reasons: 1. The proposed car stacker model gives a clear platform width of 2500mm. The B85 vehicle width is 1870mm, and the B99 1940mm, which in his view provides for adequate access; 2. The up-stand of 195mm in height is less that the height of the bottom of the door of common vehicles (Corolla: bottom of door 285mm, Commodore: 290mm) and thus in practice would not provide an obstruction. 3. The proposed car stacker has been successfully installed in a number of other developments (detailed in the expert report). That technical information appended to the expert report indicates "the premium model" comes in the following platform widths: 2500, 2600, and 2700mm.
11. Mr Seton argues that the development as proposed does not comply with cl. 6.85 Relevant Standards of DCP 2012 as the parking provided is not in compliance with the parking standard. It is his submission that if compliance with the parking standard was to be achieved through the deletion of the car stacker it would reduce the parking provision in the development to a total of seven spaces.

Queuing of vehicles

1. Council also raised concerns about the potential for car queuing for extended periods causing congestion in Clunes Lane due to the operation of the car stacker.
2. Mr Hind's evidence is that the parking standard at Section 3.5 requires that access to mechanical parking installations, such as car stacker, should provide sufficient vehicle storage to ensure that queues of vehicles waiting service by the facility do not extend beyond the property boundary. Mr Hind's evidence is that the proposed waiting bay is partly located within the future road widening of Clunes Lane.
3. In relation to the potential for road widening or acquisition of land adjoining Clunes Lane in the joint planning report, and in oral evidence, Mr Hind agreed that: 1. Cl. 3.5.6 of DCP 2012 does not apply to Clunes Lane as it is not a "new" Lane, and it is not identified in the relevant mapping attachment to the clause; 2. There is no requirement in DCP 2012 for dedication or widening that affects the boundary of the subject site with Clunes Lane; and 3. no material before the court identifies a requirement for the Lane to be widened by 3m by either dedication or extension of the laneway.
4. Mr Varga provided the following detail in relation to the timing and operation of the car stacker: 1. in entering the development, users could wait between 70-90 seconds for the car lift, if it was already in use; 2. on leaving the development, from the point of activating the retrieval of a vehicle from the car stacker to arriving at ground floor to exit would take approximately 2 minutes.

Findings

1. In Osborne v Woollahra Municipal Council [2013]NSWLEC 1264 Moore, SC considered, in part, the reasonableness of a proposal for parking where the space proposed failed to comply with the minimum dimensions for a parking space arising from Australian Standard AS 2890.1 [at 21]. In contrast to the current matter, in Osborne v Woollahra the parking space in question was only able to accommodate between 80-90% of vehicles in the B35 percentile [at 50]. At [55] Moore SC concludes: I am therefore satisfied that it is reasonable not to insist on strict compliance with the totality of the B35 vehicle template. I am satisfied as consequence that there is an adequate range of sufficiently popular vehicles within the B35 parking space to make the parking space appropriately utilisable.
2. Whilst the subject of the appeal in Osborne v Woollahra was a residential dwelling, the reasoning behind the application of compliance with the parking standard is relevant to the current proceedings. Of distinction in this matter is that by the nature of the use of the premises, as a boarding house it is likely that the turnover of residents will be higher, and that residents are unlikely to make a choice of vehicle in response to a specific housing decision. In my considerations, I have given weight to the fact that the site is well located in relation to public transport. I am satisfied that, on the basis of the following analysis, sufficient flexibility is able to be accommodated within the parking provision of the development and as such the proposed car stacker in combination with the at grade car spaces are a satisfactory means of parking provision for the development.
3. The parking standard seeks to classify vehicle sized into groupings based on overall size, thus the terms B85 and B99. In Appendix A of the parking standard at A2 it states: The 85th percentile vehicle is defined as the vehicle which is larger than or equal to 85% of the passenger and light commercial vehicles that operate on Australian roads. Utilising the Traffic and Parking Assessment report (Exhibit 1) the development generates a demand for 12 spaces. Council raises no contention that the parking generation rates are not accepted. Complying the percentile analysis in the parking standard, if vehicles using the development are taken to be a sample of cars on Australian roads, 85% or 10 spaces may be required to be occupied by B85 vehicles and two spaces by vehicles in the B99 category. I accept the evidence of Mr Hind at [60] that the proposed car stacker can accommodate the B85 vehicle. I am satisfied that the designated visitor space and the reinstatement of the previously included managers space (as an at grade space for the boarding house use) could adequately meet the demand in the development for any B99 vehicles.
4. Turning to the issue of the platform width of the car stacker I accept the evidence of Mr Hind at [62] that an increase in width is preferred to accommodate the up stand and allow for satisfactory access to the vehicle and to exit the car stacker. I note the reasoning of Mr Varga at [63] that the car stacker proposed in his view is practical and workable. By reference to Exhibit D, I note that the architectural plans indicate that the width of the basement in the development could accommodate a model of car stacker with the larger platform width of 26000mm, whilst retaining the same number of stacking bays and thus spaces. To increase the flexibility and useability of the car stacker I find it is appropriate to require the applicant to install a system with the largest platform with possible in the basement, whilst retaining the provision of spaces at eight within the facility.
5. Whilst the joint expert report (Exhibit D) agreed that, the manager's car space within the basement itself (proposed in Version 7 of the plans) was acceptable, it was deleted and included as a space in the car stacker. I find it is appropriate to require the applicant reinstate this space as additional, larger vehicle parking space for the boarding house use, in the location nominated in plan D100 revision 7.
6. Given my decision in the preceding paragraphs, the determination of whether alternative approaches to parking provision, such as a limited number of at grade parking spaces within the basement, are satisfactory is not required. Nor is the determination of whether the deferred commencement condition proposed by the applicant is acceptable.
7. The plans before the court indicate [DA102 revision 7] that the waiting Bay is contained solely with in the subject site's property boundary. Given the evidence of the joint planning report, and that provided by Mr Varga [refer 68] I am satisfied the development meets the requirements of section 3.5 of the parking standard and the queuing proposed is appropriate.

Conclusion

1. In relation to the remaining issues raised in submissions from the public, I concur with the evidence of the planning experts and I am satisfied that the potential for overlooking of adjoining residential dwellings and the non-compliance with the height control have been resolved by the amendments to the design of the proposal. I accept the oral evidence of the traffic experts that the residents concern in relation to traffic congestion in Clunes Lane relates to the transition of the precinct to a higher density of development and is not an unforseen impact of this proposed development.
2. In determining this matter, I have carefully reviewed evidence, the views of the objectors, and the parties' submissions. Having carefully considered the joint expert report and final submissions, I am satisfied in my s79C evaluation that this amended proposal warrants approval.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. The appeal is upheld; 3. Consent is granted to Development Application No. 384/2015 for demolition and construction of a mixed use development containing ground floor commercial and 41 boarding rooms managers residents and 2 levels of basement car park at Lot 5, Section 1, DP 9055, 285 Canterbury Road, Canterbury, subject to conditions in Annexure A and the following additional operational conditions: 1. no component of the development shall exceed RL 27.8 as shown on the approved plans 2. the basement 2 floor plan [DA100 Rev 8] shall be amended to incorporate an additional at grade car space as shown in the previous revision of the plans. This space is to be allocated to the boarding house use; 3. the applicant is to install the WOHR Combilift 543 "premium model" car stacker (or equivalent approved by Council) with the widest platform with able to be accommodated within the approved basement. 1. The exhibits are returned with the exception of Exhibit A, F, 1 & 2. ……………. D M Dickson Commissioner of the Court 261808.16 Dickson (C) (372 KB, pdf) 261808.16 Dickson - Plans (4.05 MB, pdf) 261808.16 Dickson - Basix (257 KB, pdf) 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: 29 March 2017