Fodor Investments Pty Limited v Hornsby Shire Council

Ashfield Municipal Council v Armstrong [2002] 122 LGRA 105; D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 (10 March 2005); CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71, (the first Fodor case); Masterbuilt Pty Limited v Hornsby Shire Council [2005] NSWLEC 212; Michael Hesse Associates Pty Limited v Parramatta City Council [2003] NSWLEC 387; Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005)

DATES OF HEARING: 28/11/2005, 29/11/2005, 30/11/2005, 01/12/2005, and amended plans received 16/12/2005

APPLICANT: Mr M Craig, QC, instructed by Mr C C Freeman, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Christopher C Freeman & Co RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike and Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10839 of 2005 - Fodor Investments Pty Limited v Hornsby Shire Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Hornsby Shire Council (the council) of a integrated development application to demolish part of the existing 'Poplars Private Hospital' and to erect a multi-unit housing development comprising twenty-nine (20) x 2 bedroom, (amended during the proceedings to twenty-seven (27)), and ten (10) x 3 bedroom dwellings with basement car parking at Lot 3, DP 828636, being Nos 64-66 Norfolk Road, Epping, NSW, 2121 and to strata title subdivide. Also, the proposal is to convert the existing Donald M Tulloch wing or building (Tulloch building) on the land to multi-unit housing. 2 I visited the land in company with the parties on the morning of the first day of proceedings when concerned residents gave evidence. On the site inspection I surveyed the land and the Tulloch building and observed the streetscape. 3 I have concluded that the development application, as amended during the hearing, should succeed, when considered under s 79C of the Environmental Planning and Assessment Act 1979 and that the original issues have now been largely resolved. The land 4 The land is situated on the southeastern corner of Norfolk Road and Somerset Street. The land has an area of 6,873m2 and erected on the land is the 'Poplars Private Hospital'. The existing hospital comprises five existing buildings developed at various times since the 1920s and including 'Kirkwood House', the 'Gordon Young Wing', 'Somerset House' and the Tulloch building. A large formal garden including substantial trees presents to Norfolk Road. 5 Reciprocal rights of carriageway burden the southern adjoining property, Lot 2, DP 627224, being No 62 Norfolk Road, which provides vehicular access to the hospital's open carpark and to the adjoining medium density aged housing development (9 units). A separate driveway off Somerset Street provides vehicular access to the Tulloch building, through to the open carpark that links with the above right of carriageway. 6 The land falls gradually down from west to east at an average gradient of around 4%. There are trees growing on the land and these are largely confined to the Norfolk Road and Somerset Street frontages. Somerset Street forms the northern face of the land and Norfolk Road is oriented largely north/south. 7 Norfolk Road, is characterised by Federation style housing. The characteristic built form is that of single-storey and two-storey brick and tile detached dwellings. Norfolk Road is the main traffic link between Epping and North Epping. The locality is defined by nearby Epping Park and oval; the Great Northern Railway Line to the west; Epping Road to the south; Terrys Creek & bushland reserve to the east and Epping Park and Somerset Street to the north. The M2 motorway, linking the City with Sydney's northwestern suburbs, crosses the suburb east to west, via a tunnel under Epping Park. 8 Southwest of the land is the Epping commercial centre and Epping railway station is at a distance of around l km. The east side village centre, east of the railway line, comprises medium-density to high-density housing, together with schools and churches. The locality is well provided by public transport and community infrastructure. The Epping-Chatswood Rail Link is to be completed in 2008, and is expected to further improve public transport. Relevant planning controls Hornsby Shire Local Environmental Plan 1994, (HLEP) 9 Under cl 7 of the HLEP the land is zoned Residential A, (Low-Density) and the proposal including 'demolition', 'multi-unit housing' and 'subdivision' is permissible with consent. However, cl 14(4) of the HLEP prohibits 'strata subdivision'. 10 Clause 15(1) of the HLEP provides for a maximum floor space ratio of 0.4:1. A minimum lot size of 500m2 is applicable for subdivision under cl 14(2) of the HLEP. Existing use rights, (EUR) 11 The existing hospital is a non-conforming use in the Residential 'A' (Low Density) zone under the HELP and it was common ground of the parties that the land has existing use rights, (EUR). 12 The proposed strata subdivision of the proposed medium/high density multi-unit housing development is prohibited in the zone and this renders the proposal also non-conforming. Thus, the development application relies on EUR, under ss 106, 107 and 108 of the Environmental Planning and Assessment Act 1979. Section 107 states that nothing in the Act or an environmental planning instrument prevents the continuance of an existing use. Section 108 provides for regulations in respect of existing use. These regulations may make provision for or with respect to existing use and for (a) the carrying out of alterations or extensions to or the rebuilding or a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. 13 Section 108(3) of the Environmental Planning and Assessment Act 1979 (the Act) states: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

14 Regulation 41(1) of the Environmental Planning and Assessment Regulations 2000 states that: An existing use may, subject to this Division: a) be enlarged, expanded or intensified; or b) be altered or extended; c) be rebuilt; d) be changed to another use, including a use that would otherwise be prohibited under the Act. 15 A useful summary of the legal tests for EUR can be found in the decision of the Court of Appeal, Ashfield Municipal Council v Armstrong [2002] 122 LGRA 105 by Davies AJA at paras 13 to 15. 16 The proposal is to be considered on merit, in accordance with the applicable provisions of s 79C of the Environmental Planning & Assessment Act 1979. 17 Under the EUR provisions, zone objectives and planning controls that limit the size of a proposal including floor space ratio, (FSR), height and setback have no application in so far as they derogate from the EUR provisions in the Act. The question of whether or nor State Environmental Planning Policy No 65 - The Design of Residential Flat Development applies to development that relies on EUR is problematical, however, it is likely that it does. State Environmental Planning Policy No 65 - Design Quality of Residential Development, (SEPP65) 18 The planning principles referred to in SEPP65 are particularly relevant to the proposal being: (a) the erection of a new residential flat building; and (b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building; and (c) the conversion of an existing building to a residential flat building. 19 Under the SEPP65, 'residential flat building' means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self contained dwellings (whether or not the building includes uses for other purposes, such as shops).

20 Other instruments that control development nearby are the Draft LEP (Amendment No 76), East Epping Heritage Conservation Area; Medium Density Multi-Unit Housing DCP; Medium/High Density Multi-Unit Housing DCP; Heritage DCP; Car Parking DCP; Access & Mobility DCP; Sustainable Water DCP; Waste Minimisation & Management DCP; Landscape Code and AS2890.1 Off-street car parking. These are appropriately used as a guide to an understanding of future character of the area nearby. 21 The application was lodged as integrated development. As it is proposed to subdivide within a bushfire prone area, approval of the NSW Rural Fire Service is required under the Rural Fires Act 1997. The proposal and its history 22 Integrated development application No 0911/2005 was lodged with the respondent council on 10 June 2005 to demolish part of the existing 'Poplars Private Hospital' except for the Tulloch building and to erect a multi-unit housing development with basement car park on the land and to strata title subdivide. 23 The multi-unit housing proposal is described in plans prepared by Douglas Sanger Pty Limited Architects and Urban Designers and includes: · Proposed Units 1 to 11 in a three-storey residential flat building contained in a converted Tulloch building fronting Somerset Street. During the hearing the number of units on the roof of the Tulloch building were reduced by two and the numbering of units in the plans in Exhibit O and U has now changed; · Proposed Units 12 - 13 and Units 28 - 29 in a two-storey walk-up residential flat building fronting Somerset Street; · Proposed Units 14 - 24 and Units 30 - 39 in part two-storey and three-storey residential flat building with lift access for the three-storey component. Units 20 - 23 are maisonette style dwellings. Unit 24 forms a single level ground floor apartment. The three-storey section of this building has frontage to Norfolk Road and its main façade is to the west over the road; · Proposed Units 25 - 27 in a townhouse building of two-storeys on the southern side of the existing Tulloch building; · The proposed single level basement carpark would provide car parking in 22 x double spaces, 17 x single spaces, 5 x visitor spaces and 1 x disabled space (a total of 67 spaces). 24 The Tulloch building and the proposed new buildings would form a central courtyard and would include landscaping and site works. 25 A 'Statement of Environmental Effects' prepared by Robertsday town planning design, accompanied the development application, [Note: Exhibit 5, Vol 1, pp 7-218] that included a; · Heritage Impact Assessment by Graham Brooks & Associates Pty Limited, [Note: Exhibit 5, Vol 1, pp 64-7]; · Pre-development Tree Assessment Report dated 12 July 2002 by Pittendrigh, Shinkfield Bruce Pty Limited, Arboricultural Consulting, [Note: Exhibit 5 Vol 1 pp 55-62]; · Assessment of Traffic and Parking Implications dated June 2005 by Transport and Traffic Planning Associates, [Note: Exhibit 5, pp 69-89]; · SEPP65 Assessment, [Note: Exhibit 5, Vol 1, p 218].

26 Also included with the development application was a: · Bushfire Hazard Assessment Report, [Note: Exhibit 5, Vol 1, p 246]; · Pre-Development Tree Assessment Report, [Note: Exhibit 5, Vol 1, p 265; · Revised Stormwater Management Concept Plan dated 3 June 2005, [Note: Exhibit 5, Vol 1, p 268] Notification 27 The application was notified to nearby owners and occupants for a period of 21 days commencing 6 July 2005 and the council received twenty-five (25) submissions including a petition with 27 signatories, objecting to the proposal, were received within the exhibition period. 28 The NSW Rural Fire Service advised by letter dated 24 August 2005, of General Terms of approval of the integrated development application. The council's decision 29 When the appeal was filed the council had not yet determined the application, and thus the application came to the Court as a deemed refusal. 30 However, by notice dated 16 November 2005, the council formally refused the integrated development application for the following reasons, [Note: Exhibit 5, Vol 2, pp 458-460].

1. The proposal is unsatisfactory in respect to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 as the proposal adversely impacts on the character of surrounding residential area.
2. The proposed development presents considerable bulk and scale, is visually dominant in relation to neighbouring dwellings and detracts from the residential character of the area.
3. The proposed three-storey residential flat development is inconsistent with the characteristic built form of the surrounding residential area.
4. The proposed design does not have adequate regard to the setting of the Norfolk Road Corner site opposite Epping Park.
5. The proposed conversion of the Donald M. Tulloch building for multi-unit housing results in adverse impact on the privacy of neighbouring residents.
6. The proposed development detracts from the Somerset Street and Norfolk Road streetscapes.
7. The proposed development adversely impacts on the significance of the draft East Epping Heritage conservation area.
8. The proposal is not a within the ambit of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development, as a design does not have regard to the residential character of the localities, in respect to consideration of principle one-context. The hearing 31 The appeal was filed on 3 August 2005. 32 Concurrent evidence was given by Mr G A Mahony, Senior Town Planner of Hornsby Shire Council; Mr N R Dickson, Court-appointed expert urban designer; Mr S F McMahon, consultant town planner, for the applicant and Mr D J Sanger, architect also for the applicant. 33 At the site inspection, on the first day of the hearing and following presentations by Messrs Sanger and Dickson, the Court heard evidence from the following residents. 34 Mr D Jensen, resident of No 20 Somerset Street, spoke of his concerns for privacy impacts resulting from the juxtaposition of the proposed residential use of the Tulloch building and the games room and Bedroom 3 in his dwelling. Mr Craig, QC, questioned Mr Jensen as to the timing of the proposed change of use on the hospital land and Mr Jensen's application for the now constructed dwelling house. Mr Jensen advised to the best of his recollection that the dwelling house plans preceded the proposal. 35 Mr Tony Taylor, resident of No 47 Norfolk Road, told the Court that residents had not been advised of the on-site hearing. He raised concerns regarding; traffic safety on Norfolk Road, the low-density nature of the area and the area's heritage value. 36 Mrs A Taylor, resident of No 47 Norfolk Road, raised concerns regarding; bush fire emergency, traffic impacts and of the heritage study completed for the area. 37 Mr L Pluck, resident of No 63 Norfolk Road, considered the present proposal was similar to the previous application the Court had refused. He had concerns regarding the scale of the proposed multi-storey development in a single storey area and supported the council's refusal of the application. 38 Ms J Frost representing the residents of the Uniting Church apartments ('Carinya') that abut the land raised concerns regarding; overshadowing, shared use of right-of-way and resulting loss of vehicle turning area for on-site waste collection for the 'Carinya' apartments. 39 Mr Mahony also prepared the statement of basic facts dated 8 September 2005. The issues 40 On 9 September 2005 the council filed a statement of issues. Bulk and Scale 1.1 The proposed built form, bulk and scale of the development detract from the character of the surrounding low-density residential environment. Particulars · The bulk and scale is unacceptable at both the Norfolk Road and Somerset Street frontages. · The bulk and scale of the alterations and additions to the Tulloch Building is unacceptable and gives rise to internal amenity impacts as the building alterations relate to the internal courtyard. 2 Height of Buildings 2.1 The proposed three storey building height is inconsistent with the predominantly one to two storey built form of the surrounding low-density residential environment.

3 Adaptive re-use of Donald M Tulloch Building 3.1 The existing Donald M Tulloch building is of inappropriate design for adaptive residential use and detracts from the character of the surrounding low-density residential environment. 3.2 The proposed alterations and additions to the Donald M Tulloch building do not create residential built form that contributes positively to Somerset Street, the surrounding residential area or to Epping Park.

4 Streetscape 4.1 The proposed development is unsympathetic to the defining elements of the Norfolk Road streetscape. 4.2 The proposed development is unsympathetic to the defining elements of the Somerset Street streetscape.

5 Heritage/Conservation 5.1 The proposed development detracts from the draft East Epping Heritage Conservation Area.

6 Urban Design The proposed development is of an unacceptable urban design. Particulars · The proposal relies in part, on an existing hospital building, which does not adequately respond to, or contribute to the residential context of the locality. · The scale of the proposed development dominates and does not respond to the character of surrounding development. · The proposed adaptive reuse of the existing hospital building does not achieve appropriate residential built form. · The proposed 0.72:1 floor space ratio is inconsistent with the floor space ratio of the existing built form and the floor space envisaged for future development at 0.4:1 for the surrounding residential area. The proposed design does not provide for good amenity due to the number of units with limited access to sunlight, the conflicting interface between communal and private open space areas and the poor apartment layout. 7 Unacceptable Impact on No 20 Somerset Street Particulars · The proposed development has an unacceptable setback from No. 20 Somerset Street. · The bulk and scale of the Donald M Tulloch Building is unacceptable as it relates to the adjoining residential dwelling house at 20 Somerset Street. · The adaptive re-use of the Donald M Tulloch Building will give rise to unacceptable overlooking and aural privacy issues to the adjoining dwelling house at No 20 Somerset Street particularly having regard to the proposed changed residential use. 8 Basement Car Park 8.1 The design of the basement car parking and garaging area does not achieve compliance with AS2890.1 Off-street car parking.

9 Garbage Storage Area 9.1 The location of the proposed garbage room does not enable servicing by Council's contractor, is not conveniently located for use by residents and does not meet the guidelines of Council's Waste Minimisation & Management DCP.

10 Matters raised by Objectors and Public Interest 10.1 The proposal is unacceptable having regard to the matters raised by way of written submission from objectors and the proposal is not in the public interest.

41 The principal-contested issues were height, bulk and scale of development. The council also sought the demolition of the Tulloch building. Amended plans 42 During the course of the hearing the applicant on the suggestion of Mr Dickson, amended the plans, to provide: · greater 'articulation' in plan of the central building on the Norfolk Road frontage whilst maintaining intact the front garden; · slightly less setback on the southern side of the proposal near the Norfolk Road frontage; · reduction in the GFA of the second level of the Tulloch building, a reduction in the number of units and the floor space ratio, (FSR); · amendments to the basement car park as a result of the reduction in the number of units and demand, and · 1:20 slope to the top 6m of the vehicular ramp linking the basement. 43 Mr Craig, QC, submitted that the proposed amended extension of the main building forward towards Norfolk Street would be largely over the existing curved front driveway and would not interfere with the lawn or trees to the extent that someone might raise that as a new issue. He submitted that although the building would intrude into the heritage garden, it would be largely confined to the area of the existing porte cochere. He submitted that the amendments are part of the legitimate Court process to meet the issues raised and to produce a preferred outcome in the public interest. There is proposed change, he submitted, but that change is not significant and there is no need of further re-notification. 44 Despite this submission, it was agreed that the amendments should be notified and on 30 November 2005, the Court issued directions to this effect:

1. The respondent council is to commence advertising the A4 copies of the amendments suggested by the applicant during the hearing on 1 December 2005.
2. The applicant will file and serve a full set of architectural drawings to the respondent council by 4.00pm Friday 9 December 2005.
3. The matter is set down for mention at 9.30am, 16 December 2005 or as otherwise advised by the Registrar, before Commissioner Watts. The evidence and findings Height, bulk and scale of development 45 Messrs Sanger; Dickson; Mahony; and McMahon, gave concurrent evidence on the principal-contested issue of height, bulk and scale. As a gauge of the bulk of the development the floor space ratio was carefully addressed. 46 Mr Sanger calculated the FSR of the proposal to be 0.577:1 without incorporating habitable space within the envelope of the Tulloch building plant room on the roof of the Tulloch building; he estimated with habitable space within the envelope of the plant room included, the FSR would be around 0.61:1. He also calculated the FSR of the existing structure on the land at 0.367:1, so overall the bulk of development on the land would increase around twice the existing. 47 Mr Sanger in answer to Mr Jackson, said he understood the FSR of the unamended proposal to be of the order of 0.648:1, not including the community room, storage area, stairs, and enclosed hallways. Mr Sanger would not accept the council's assertion that, with these elements included, the FSR of the proposal would be 0.791:1. 48 Mr Sanger had calculated the FSR of 'Carinya' to be 0.66:1 as a guide to the density of existing nearby development. 49 Mr Sanger prepared sketch plans showing alternate means of providing residential accommodation on the roof of the Tulloch building. These were made available to the experts on the morning of the third day of proceedings. 50 Mr Dickson indicated that, of the three alternatives, he preferred Alternative 3, with two x two bedroom units shown on the roof of that building, largely within the envelope of the existing plant room. He considered this design would allow more daylight and sunlight into rooftop units than previously was the case. 51 Mr Mahony was generally critical of the adaptive reuse of the Tulloch building as he considered it would not "marry well" with the surroundings which are soon to be controlled under the East Epping Heritage Conservation Area. He also pointed to the fact that the remaining built form of the Tulloch building would not be sufficiently setback from the new dwelling on No 20 Somerset Street abutting to the east. However, when asked to consider Mr Sanger's sketches, he supported Mr Dickson's comments and also favoured Alternative 3. 52 Mr McMahon considered Alternative 4, in yielding a higher density, to be preferable. However, he supported the redesign of the Tulloch building with its reduced bulk at roof level abutting No 20 Somerset Street. 53 Mr Jackson referred the Court to the decision of her Honour Pain J in Masterbuilt Pty Limited v Hornsby Shire Council [2005] NSWLEC 212 (18 May 2005) wherein, at para 15, her Honour referred with approval to the planning principles by the Senior Commissioner in the first Fodor case that apply to EUR. In Masterbuilt Pain J indicated the relevance of the planning instruments when considering EUR, [Note: para 17]. She stated: While the relevant Council environmental planning instruments and development control plans do not apply directly, it is useful to consider these as they provide important context for the three appeals particularly in relation to what surrounds or is likely to surround the site. 54 Mr Jackson submitted that the Court must consider the context and have regard to the likely future character of the low-density residential zone. He submitted that under cl 23 of the HLEP, 'multi-unit housing' is defined as a permissible use in the Residential 2(a) zone, despite strata subdivision being prohibited. He submitted that the Low-Density DCP gives a guide to the type of future development likely to be built in the locality. However, he submitted that under the Low-Density Multi-Unit Housing DCP in Exhibit 2, the proposal would be around 6,777m2 deficient of site area for the proposed amount of floor area. This, he submitted, would suggest that the proposal would be around 100% above future expectations in the surrounding low-density residential area. He submitted that it is important, in respect of EUR, "…to have built form in compliance" with the expected future residential development with a FSR of around 0.4:1. 55 Mr Jackson also submitted that when considered under the Medium-Density Multi-Unit Housing DCP in Exhibit 3, the proposal would be around 1,957m2 deficient of site area for the proposed floor area. He further submitted that even in respect of the Residential C zones under the HELP, which allows a higher density of development, there would be a shortfall in site area for the amount of proposed floor area. 56 Mr Jackson submitted that if the council's planning instruments and the allowable FSR of 0.4:1 in the Residential 2(a) zone were to guide one, the built form of the proposal would be "…extremely atypical to what one sees in the locality". As a point of reference, he submitted that existing on site, there is presently a FSR of 0.376:1, and the proposal would be somewhere between a FSR of 0.64:1 as calculated by Mr Sanger or 0.79:1, as calculated by the council. Whatever is the correct calculation he submitted, there would be a significant breach of the guidelines if the proposal were granted consent. He said that he did not place his submission, "…in the sense of a derogation of a redevelopment of this site". However, he submitted, "…the applicant's approach [to development on the land] is one that the Court would not embrace." He submitted that the Court should give "…no weight on the applicant's submission that the controls in the DCP or the LEP are not relevant". 57 Mr Craig, QC, submitted the applicant relies on EUR and that in the context of Somerset Street, with institutional buildings predominating; the proposed FSR would result in a not unreasonable height, bulk and scale. 58 I accept the submissions of Mr Craig. The evidence of Mr Dickson, that Alternative 3 is preferable, also persuades me, and on its merits the proposal now warrants approval. In coming to this conclusion I have had regard to the future residential context. I am satisfied that by reducing the number of units on the roof of the Tulloch building from four to two the height, bulk and scale would be acceptable. The two proposed two-rooftop two bedroom units would be largely contained within the existing plant room volume and the setback from of these units from No 20 Somerset Street being greater than previously proposed would be acceptable. The reduction in the number of units would also slightly reduce the FSR of the proposal and reduce the need for car parking, which is desirable. 59 I understand that Mr Jensen, the owner and occupier of No 20 Somerset Street, is content with the amendments to the plans. The proposed setback of the rooftop residential use is around 4.0m generally and 6.0m at the life core, [Note: Exhibit O, Drawing No 2053/DA005a] and the roof on the eastern side of the roof nearest Mr Jensen's property, would be inaccessible. Also the balcony, to Bedroom 1 on the ground floor of Unit 1 is now shown as being semicircular in plan and screened by a 1600mm high masonry and glass block wall, [Exhibit U, Drawing No 2053/DA002b]. Thus, I am satisfied that the amenity of No 20 Somerset Street would be reasonably protected. 60 Any slight additional overshadowing cause to the dwelling units in 'Carinya' caused by the amendments to the southern wall alignment would not be sufficient to warrant refusal of the application. The separation between buildings across the right of carriageway would be around 10.15m, reduced from around 11.10m and 7.5m at the closest point, which is unchanged. Most additional overshadowing around midday would be over garages and not habitable space. 61 I would not refuse the amended development application for reason of height, bulk and scale of development. Demolition of the Tulloch building 62 Mr Jackson submitted that the council would prefer the Tulloch building to be demolished and a new more sympathetic residential building erected in its place. He asked the Court to consider this issue of the demolition of the Tulloch building having regard to the legal framework of existing use rights (EUR) provisions under the Environmental Planning and Assessment Act 1979. 63 He referred to the planning principle enunciated by the Senior Commissioner in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 (1 March 2005) (first Fodor case). In that first Fodor case, the Senior Commissioner answered the question: "How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?" [Note: para 17]: While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. 64 Mr Jackson submitted that Mr McMahon, for the applicant, had not given sufficient consideration to the planning controls in Hornsby, but was prepared to give weight to them for a hypothetical 'green field' site. He submitted, …the council says that the bulk and scale and density of this proposal is exacerbated by the retention of Donald Tulloch building. It is atypical and of an institutional character. [It is] proposed to change [the use of this building] and the proper planning approach would require the building to be demolished [as the proposal would be only appropriate] for an institutional context. The flat roof is also atypical, and of a bulk and scale with no match in the locality. It is relevant to have regard to the manner in which the proposal will be perceived on Somerset Street and the proximity with No 20. The degree of separation is not sufficient . 65 He referred the Court to the decision of the Senior Commissioner in Michael Hesse Associates Pty Limited v Parramatta City Council [2003] NSWLEC 387 where it was held, To be in the public interest, an adaptive reuse project must have an element of public benefit apart from resource conservation. One or more of the following circumstances must be present: the building was of historical or heritage value; the building was attractive and fitted into its urban design context; the building was much loved by the community; and/or the new use served the public interest better than the existing use. 66 Applying that test, Mr Jackson submitted that there would be no public benefit in the proposed reuse of the Tulloch building. He submitted it ought to be demolished and there ought to be a better urban design solution brought forward. 67 He submitted that the evidence of the experts, supported the view that by adding and extending with glass block screens beyond the footprint of the plant room at the upper level of the Tulloch building, the proposed bulk and scale and separation would be unacceptable. 68 Mr Jackson submitted that the proposed glass block screen to the bedroom window on the lower floor would also add to the perceived bulk. He agreed it might address overlooking but asked, "…will it address aural privacy?" He submitted that although the experts have addressed, the design issues and bulk and scale issues and "…I can't put evidence to you, that I do not possess", the bulk the Tulloch building is not acceptable. 69 He submitted the "…totality must be considered", and there would also be a non-compliance with the 9m-height control under Low-Density DCP as the Tulloch building would be around 11.8m in height. He was critical of the residential component at the plant room level when the expected height is significantly exceeded. 70 Mr Jackson also submitted that a relevant consideration is a draft Local Environmental Plan 1994 (Amendment No 76) that aims to update the listing of heritage items and to include the East Epping Conservation Area. He explained the history surrounding that draft instrument, and of the study by Tropman and Tropman Architects, dated 16 October 2001, [Note: Exhibit 5, Vol 2, p 461]. Under that draft instrument, he submitted, the Tulloch building would have an adverse impact on and not fit in with the streetscape. 71 Mr Craig, QC, submitted that the application before the Court is for demolition of some of the buildings on the land and the retention of Tulloch building. He submitted that the issue of the demolition or retention of the Tulloch building falls into two parts: The first is the principle of demolition and the second is the manner in which the retained building should be developed for residential. 72 He submitted that the issue, in relation to demolition, as advanced by Mr Jackson on behalf of the council "…is irrelevant and fanciful". The demolition of the building is not the application before the Court and to say it is would ignore history. He submitted, …No one suggests that [the Tulloch Building] is unlawful. For better for worse it is there and part of the present character of the street and area. It is not the function of the Court to determine whether or not the building should be demolished. The question is whether the use as proposed is appropriate. To do otherwise would be outside the scope of the power of determination. 73 He submitted the Tulloch building is substantial, erected little more than 10 years ago. It has 'embodied energy' in it, and in that context, its reuse has implications for ecologically sustainable development (ESD). 74 Mr Craig, QC, submitted that in the context of the Environmental Planning and Assessment Act 1979, s79C(1)(e), the Court is required to consider the public interest. Part of the public interest in determining a development application, the Court should endeavour to achieve consistency of decision-making. He submitted that the council is estopped from claiming that the Tulloch building should now be demolished when it was the council that approved it and the council did not require its demolition in the first Fodor case. [Note: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589]. 75 Mr Craig, QC, submitted that in the present proceedings, the council would be barred from raising that issue, where a cause of action was not availed of, at that time of the first Fodor case. He submitted that if [the council] chooses by design or oversight to mount an appeal on one basis it is unlikely to be granted leave to open another appeal on the same basis. He submitted that here the application is similar and the retention of the Tulloch building is integral. 76 Mr Craig, QC, submitted it is plain that issue was available to be dealt with at that earlier time. Applying Anshun it would not be in the public interest for the council to raise issue now, with the retention of the building. If there were proposed a significant change to the application, he submitted, Anshun estoppel might be denied, however, that is not the case here. The opinion expressed by the Court at para 23 of the first Fodor case, where four residential units were proposed on the roof, is relevant, he submitted. The Senior Commissioner stated: As regards the impact of the additional floor on the Tulloch Wing on Somerset Street, I accept Mr McMahon's opinion, supported by perspective drawings, that the impact will be minor. The additional floor is set back and will not be easily seen from the street. 77 He submitted that it would be "…contrary to the public interest to now say, don't use [the Tulloch building] in that way and really it should be demolished." 78 Mr Craig, QC, also submitted as may be seen in the aerial photo, [Note: Exhibit 5, Vol 1, p 53 and the SEE, Attachment 3], the site occupies around half the length of Somerset Street and as a result he submitted the residential character is beset by institutional uses not residential and to the south 'Carinya' at a higher FSR, and it cannot be said that the proposal is out of character with its surroundings. He submitted that the "…story is told by what adjoins or is in the vicinity, and there is a great mixture". 79 He submitted that Mr Jackson 'prayed in aid' the decision of Hesse. This Mr Craig, QC, distinguished as having been decided well prior to the first Fodor case and in that first hearing no concern was expressed for the retention of the Tulloch building. There was no evidence that the proposal then did not meet the principles in Hesse. He submitted that it must be borne in mind; the planning principles don't achieve status of legal precedence, [Note: Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005)]. Mr Craig, QC, submitted, that although the Senior Commissioner had referred to four or five circumstances surrounding adaptive reuse of existing building, that the class of application referred to by the Senior Commissioner is not closed. 80 I accept the submissions of Mr Craig, QC, and agree that the present application does not include demolition of the Tulloch building. I recognise that estoppel and res judicata, may "…prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding," [Note: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 (10 March 2005), para 34]. 81 Despite the Tulloch building not being of historical or heritage value, I consider the building as now proposed would be attractive and would fit the urban design context of Somerset Street. Although the Tulloch building might not be much loved by the community, I apprehend that the community and Mr Jensen in particular has come to accept its presence and on merit the new residential use would not be antipathetic to the public interest. 82 I would not require, on merit, the Tulloch building to be demolished. As amended the proposal is satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979. 83 For the above reasons, the appeal is upheld. Conditions 84 The conditions are those in Exhibit 9 as amended during the hearing. Orders 85 My orders are:
4. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Integrated development application No 0911/2005 lodged with the respondent council on 10 June 2005 to demolish part of the existing 'Poplars Private Hospital' building and to erect a multi-unit housing development with basement carpark at Lot 3, DP 828636, being Nos 64-66 Norfolk Road, Epping, NSW, 2121, and to strata title subdivide is approved subject to Conditions 1 to 97 in Annexure A.

3. The exhibits are returned, with the exception of Exhibits C, D, E, O, P, Q, R, T, U and 9.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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