Four2Five Pty Ltd v Ashfield Council

Issues

1. In its Statement of Facts and Contentions filed on 29 August 2014 (exhibit 4) the Council raised contentions relating to the overdevelopment of the site, streetscape, residential amenity, adverse privacy and scale impacts on adjacent properties, risks to safety of pedestrians and motorists from the proposed vehicular exit onto Frederick Street, compliance with adaptable housing requirements, waste management, flooding and stormwater issues, and the public interest. The Council identified a number of matters on which insufficient information had been provided to enable a full assessment of the proposal.
2. On 23 September 2014 Four2Five was granted leave to rely on amended plans, and the Council filed an Amended Statement of Facts and Contentions on 17 October 2014.
3. Discussion between the experts engaged by the parties resolved the Council's contentions relating to streetscape, and residential amenity; additional information was provided, and agreement was reached as to matters that could be addressed in conditions. Pursuant to directions made by the Senior Commissioner in case management on 25 November 2014, the Council amended its Statement of Facts and Contentions, and filed a Second Amended Statement of Facts and Contentions in court on 26 November 2014 at the commencement of the hearing.
4. The Council's Second Amended Statement of Facts and Contentions (exhibit 1) identified two remaining contentions, relating to overdevelopment and the public interest: Overdevelopment 1.The proposed development should be refused as it will result in overdevelopment of the site. Particulars: a.The proposal exceeds the maximum height limit of 12.5m applicable to the northern part of the site under cl 4.3(2) of ALEP 2013. b.The proposal includes gross floor area within the top 3 metres of the height limit contrary to cl 4.3(2A) of ALEP 2013. c.The proposal is inconsistent with the desired future streetscape character and urban form. d.The proposal exceeds the maximum six storey height limit on the southern part of the site contrary to Control 1 & Figure 1, Section 2.2 - Building Height and Location, of Part C4, Ashfield West - Ashfield Interim Development Assessment Policy 2013. e.The proposal exceeds the maximum three storey height limit on the northern part of the site contrary to Control 1 & Figure 1, Section 2.2 - Building Height and Location, of Part C4, Ashfield West - Ashfield Interim Development Assessment Policy 2013. Public Interest 14. The proposed development was notified in the circumstances set out in Part A above. The proposed development should be refused having regard to the matters raised in submissions that have been received by Council to the extent that such submissions are consistent with the contentions set out above.
5. The Council sought leave to further amend its Second Statement of Facts and Contentions to add a particular to contention 1, that the non-compliance with cl 4.3(2A) of the Ashfield Local Environmental Plan 2013 will set an adverse planning precedent and undermine the public benefit of maintaining this development standard. That further amendment was opposed. Leave was not granted.

Planning controls

1. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC).
2. The site is in the B4 Mixed Use zone under the Ashfield Local Environmental Plan 2013 (LEP), and the proposed development is permissible with consent. The objectives of the B4 zone, to which regard must be had under cl 2.3(2) of the LEP, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To enhance the viability, vitality and amenity of Ashfield town centre as the primary business activity, employment and civic centre of Ashfield. • To encourage the orderly and efficient development of land through the consolidation of lots.
3. The land on both sides of Liverpool Road from a short distance to the west of the intersection with Frederick Street to the east to where Liverpool Road meets the railway line is in the B4 zone. The land adjoining the site to the north, with frontage to Beatrice Street, is in the R3 Medium Density Residential zone.
4. The principal development standards under the LEP include cl 4.3 Height and cl 4.4 Floor Space Ratio: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. … 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to establish standards for development density and intensity of land use, (b) to provide consistency in the bulk and scale of new development with existing development, (c) to minimise adverse environmental impacts on heritage conservation areas and heritage items, (d) to protect the use or enjoyment of adjoining properties and the public domain, (e) to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
5. Clause 4.6 of the LEP permits variation of those development standards.
6. The maximum FSR permitted for the site, and the other land to the east on both sides of Liverpool Road as far as Thomas Street, is 2.0:1. The proposed development complies with the maximum allowable gross floor area.
7. There are two height limits applicable to the site under cl 4.3(2) of the LEP. For the northern part of the site adjoining the land with frontage to Beatrice Street, the height limit is 12.5m; for the southern part of the site with frontage to Liverpool Road the height limit is 23m.
8. The term "gross floor area" is defined in the LEP: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
9. Clause 5.6 applies to development that includes an architectural roof feature that causes a building to exceed the height limit set by cl 4.3: 5.6 Architectural roof features (1) The objectives of this clause are as follows: (a) to enhance the urban and architectural design of buildings, (b) to minimise the external impact of roof features, in particular with respect to solar access and views. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that: (a) the architectural roof feature: (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
10. The LEP came into effect on 23 December 2013. There is no development control plan to support the LEP. For the period from the making of the LEP to the intended adoption of a comprehensive DCP, the Council has adopted an Interim Development Assessment Policy (IDAP) (exhibit A, p 65). On 16 September 2014 the Council approved amendments to the IDAP, to insert Part C4 Ashfield West. The Executive Summary for the report to the Council Planning and Environment Committee (exhibit 2, pp 89-90) explains the background to Part C4 in the following terms: Ashfield LEP 2013 was gazetted in Dec 2013. Pending ongoing completion of a new Ashfield Development Control Plan to support the LEP Council has adopted an Interim Development Assessment Policy (IDAP) 2013 as a short to medium term reference document for development assessment purposes. However, IDAP 2013 is essentially an update to previous Ashfield DCP 2007 and does not have area specific controls for certain land use zones applied in Ashfield LEP 2013. The new B4 Mixed Use Zone situated between Thomas Street and Wetherill Street (identified for the purposes of this report as "Ashfield West" - see Figure 1 below) is an area where land use development standards have changed significantly and as a result there are a number of development proposals in the pipeline. New development assessment controls should therefore be prioritised for this area to provide more certainty to owners and applicants. A Working Draft Ashfield West IDAP Part has therefore been produced….
11. The "Ashfield West" area identified in Figure 1 is the B4 zoned land from Wetherill Street to Thomas Street on both sides of Liverpool Road, and includes the subject site (exhibit 2, p 48).
12. Section 2 of Part C4 Ashfield West of the IDAP deals with Building Height and Location. The objectives include (exhibit 2, p 53): Overall Building Height and number of storeys. 1 Define the maximum permitted building scale including number of storeys, taking into account the following definition of building height in Ashfield LEP 2013: Building height (or height of building) means the vertical distance between ground level, existing and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles chimneys, flues and the like. and taking into account also the following Clause 4.3 (2A) of the Ashfield LEP 2013 If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by sub clause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area.
13. The Controls include (exhibit 2, p 53): Maximum Building height 1 Maximum building heights are shown on the Ashfield LEP 2013 Building Heights Map, and are affected by the limitation in Clause 4.3 of Ashfield LEP 2013, see the explanatory notes in Figure 1. The maximum number of storeys are shown in Map 2 which defines the maximum desired building scale for Ashfield West, generally measured to the parapet edge or roof pitching point of a building. … Building Scale relationship with neighbouring residential properties 4 New buildings adjacent or nearby neighbouring houses and R3 Medium Density Zones must step down in building scale if required in order to be at a level which is sympathetic in height with those properties, as generally shown on Map 2.
14. Map 2 - Maximum number of storeys and preferred building locations (exhibit 2, p 55) includes notations "MBH=12.5m 3 st" for the northern part of the site, and "MBH=23m 6 st" for the southern part of the site fronting Liverpool Road:
15. Figure 1 is:

Evidence

1. The hearing of the appeal commenced on 26 November 2014 in court, pursuant to s 34C of the Court Act. The parties agreed to dispense with a site inspection, and I was satisfied, based on the documentary evidence tendered in the court hearing, that the matter could be properly determined without the need for an inspection of the site (s 34D Court Act).

Objector submissions

1. The Council's bundle of documents (exhibit 2) includes copies of submissions made by the owner of 20 Beatrice Street, and the residents of 4 Beatrice Street, and a unit in 421 Liverpool Road. The submissions raise concerns as to traffic, including vehicle movements in and out of the development; removal of trees; inadequate recreation facilities in the area; overshadowing impacts; visual privacy; and possible damage during construction. The Council tendered copies of letters advising those residents of the s 34 conciliation conference and the court hearing, and advising that they would have an opportunity to speak to their concerns (exhibit 7). The owner of 20 Beatrice Street was present at the hearing, and provided a written submission (exhibit 10) in which she raised concerns as to rubbish bin removal, privacy, a restriction on user relating to access to the property by RMS, and dangerous access to and from the property. The submission included photographs of damage done to a front fence.

Expert evidence

1. The parties relied on expert evidence as to traffic and parking issues provided by Mr Craig Hazell (on behalf of Four2Five) and Ms Delilah Marta (on behalf of the Council). The experts provided a joint report (exhibit 6), to which they annexed amended plans for a revised driveway and ramp layout to respond to potential flooding issues which require the ramp to be raised above the footpath area. The experts agreed that the amended plans comply with the intent of AS/NZS 2890.1:2004, and agreed that it would be appropriate to impose a condition requiring a splay at the top and bottom of each basement ramp to assist in turning movements. They agreed that the amended plans reduce the possibility of vehicles scraping on the proposed ramp. The amended plans show that the end section of the building wall on Frederick Street adjacent to the driveway egress is not solid. Ms Marta agreed that so long as the design of the end section of the building wall allows for reasonable visibility of pedestrians on the footpath, especially approaching from the south, for drivers on the driveway approaching exit, and of approaching vehicles on the driveway for pedestrians on the footpath, no objections were raised. Proposed condition B(1) requires amendment to the plans to incorporate the agreed splay and for the wall on the western boundary immediately to the south of the driveway on Frederick Street to be transparent to allow for reasonable visibility for pedestrians and drivers.
2. Four2Five relied on an expert report provided by Mr Steve King, architect, addressing solar access and compliance with the RFDC (exhibit A, p35). Mr King noted that the site is an elongated irregular form with primary orientation to Frederick Street to the west, and that the nature of the developments on the eastern and northern boundaries is such as to make the development almost entirely reliant on solar access from the west. However, that orientation is also the source of an extremely adverse noise environment from heavy traffic stopping and accelerating from the traffic lights, and associated with that condition is also very poor air quality. The building response of two almost discrete blocks joined by circulation spaces, and the dimensions of the site, give rise to deep crossover apartments with principal private open space logically in line with the living rooms. That means that on the west elevation it is more difficult to assure complying periods of direct sun to glazing of living areas. Mr King considered that the conditions invite the use of wintergarden style private open spaces, with glazing positioned in the plane of the façade to overcome the intrinsic self-shading by the building's own façade. Mr King applied the recommendations of the RFDC that living rooms and private open spaces for at least 70% of apartments receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid winter, and that in dense urban areas a minimum of 2 hours may be acceptable. Mr King concluded that with wintergardens, 29, or 69%, of the units would achieve 3 hours or more sunlight to living area or wintergarden private open space between 9am to 3pm, and that an additional unit (2.4%) would achieve 2 hours or more sunlight, totalling 71.4%. Mr King's evidence was not challenged, and I accept it.
3. Expert planning evidence was provided on behalf of Four2Five by Mr Lindsay Fletcher and on behalf of the Council by Mr Philip North. Mr Fletcher and Mr North provided a joint report (exhibit 5) and gave oral evidence. Mr Fletcher prepared written requests for variation of the development standards in cl 4.3(2) and 4.3(2A) of the LEP, which are Appendix C and Appendix D respectively to the planners' joint report (exhibit 5).

Consent for 380 Liverpool Road

1. Evidence was provided relating to the Council's approval of a redevelopment of the site on the opposite side of Liverpool Road on the corner with Milton Street, 380 Liverpool Road (exhibit A). That site includes part 380-382 Liverpool Road, 384 Liverpool Road, and part of 36 and 38 Milton Street. That site is also in the B4 zone, and has a height limit of 23m. On 27 August 2013 the Council granted consent to the demolition of existing structures and construction of a 6 storey mixed use building consisting of ground floor retail premises and 45 units on levels 2-6, to a height of 21.8m. At that time the 1985 LEP was in force, and the assessment report considered the provisions of the draft LEP, now the LEP. The proposed development exceeded the FSR controls under the 1985 LEP, however it was noted that the 2007 DCP allowed an FSR bonus for the landscape upgrading of RMS land, and the FSR was generally consistent with that proposed in the draft LEP. The overall height complied with that applicable under the draft LEP. The report recommended that an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) for the proposed FSR of 2.1:1 which exceeded the FSR applicable under the 1985 LEP of 1.5:1 (including the bonus if the additional space is used for residential purposes only) be upheld. At the time of the assessment, the draft LEP included cl 4.3(3) which provided that for land in the B4 zone any part of the roof top structure located "within 3 metres below the highest point of the building" shall not include floor space area and not be reasonably capable of being modified to include floor space area (exhibit E). The proposed development included floor space in the top 3m. The assessment report commented: Cl 4.3(3) Height: A portion of the top 3m of the development contains habitable floor area. This control is intended to allow space for plant and equipment. A variation is considered acceptable in this instance, however, given that plant and equipment is located in other parts of the development. Furthermore, the elements which occupy the top 3m of the building are located on the corner of the site where they assist in providing a better urban design outcome by articulating the corner of the road intersection.
2. On 8 July 2014 the Council approved an application under s 96(2) of the Act to modify the development consent to, among other things, increase the height from 6 to 7 storeys and increase the gross floor area and provide an additional 10 dwellings. The recommendation to Council was to refuse the application, on the basis that the proposal "is excessive in height and floor space and is considered to be an overdevelopment of the site" (exhibit A, p 115B). By that time the LEP had come into force, and the assessment report noted that the modified height at 24.2m exceeded the height limit of 23m, the top 3m contained floor space contrary to cl 4.3(2A) of the LEP, and the proposed FSR was 2.76:1 where 2: 1 was the maximum permitted (exhibit A, p 115E). Notwithstanding the recommendation for refusal, the Council approved the increase to 7 storeys with habitable space in the top 3m, and the increase in FSR. The Council's approval of the modification application included condition 15, that the height be amended to not exceed the maximum height of 23m (exhibit A, p 115AC).
3. Mr North was the Council officer who prepared the assessment report considered by the Council both when it granted the original development consent for 380 Liverpool Road, and when it approved the modification application. In his contribution to the joint report (exhibit 5, p 10) Mr North commented that the contravention of cl 4.3(2A) was permitted for the s 96 modification approval on the following basis: i The DCP made specific provision for a non-specified FSR bonus in recognition of the cost associated with the landscaping of the verge owned by RMS and subject to future road widening. Council determined that this could be extended, by implication, to a height variation to permit the realization of an appropriate FSR bonus. Such a bonus provision does not, however, apply to the subject site at 425 Liverpool Road. ii. The seventh storey is confined to the corner most portion of the proposal while the sides of the building step down to 6 storeys so that the building will ultimately merge into a six storey streetscape.
4. In oral evidence Mr North stated that he did not know whether the Council's decision to approve the floor space in the top 3m of the building reflected a considered change of position. Mr North acknowledged that his comments in the assessment report could be applied as a general urban design principle to the subject site. Mr North maintained that while the context is similar the design is different, and that 380 Liverpool Road has higher built form right at the corner rather than extending to the side boundaries. Mr North agreed that the habitable space of five units on the top floor does not comply. Mr North agreed that the bonus FSR had been applied to the original development consent, rather than for the s 96 modification.

Consideration

1. The northern part of the building has four storeys, and there are four units on the top storey (units 3.06-3.09). The southern part of the building has seven storeys, with three units on the top storey (units 6.01-6.03). Clause 4.3(2A) of the LEP provides that any part of the building that is within 3m of the height limit must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. At issue is whether approval should be given to a fourth storey on the northern section and a seventh storey on the southern section, and whether an exception under cl 4.6 to the development standard in cl 4.3(2A) of the LEP, so as to permit the units proposed for those storeys, is justified in the circumstances.
2. It was common ground that the southern section of the building complies with the 23m maximum height provided by cl 4.3(2) of the LEP, and that the northern part of the building has elements above the 12.5m maximum height provided by cl 4.3(2) for that part of the site. Those elements are masonry planter beds, a masonry balustrade surrounding the fire stairs, and a glass balustrade, around the communal open space on the rooftop. The planners agreed that the glass balustrade exceeds the 12.5m height control by up to a maximum of 1.3m. At issue is whether the part of the building that exceeds the 12.5m height control is an "architectural roof feature" so as to permit the exceedance pursuant to cl 5.6 of the LEP, and if not, whether an exception to the height standard under cl 4.6 of the LEP should be permitted.
3. Four2Five accepts that if cl 4.3(2A) is applied, and the Council's draft condition requiring amendment to the plans to delete the seventh storey from the southern part of the building and the fourth storey from the northern part of the building is imposed, the rooftop communal open space on the northern part of the building would be below the 12.5m height limit applicable for that part of the site, and no variation to the height development standard in cl 4.3(2) would be required.

Number of Storeys and the IDAP

1. The LEP includes FSR and maximum height controls, however it does not specify the number of storeys permitted in a building. There is no DCP which might otherwise provide such a control. The Council relies upon the Building Height and Number of Storeys provisions in section 2 of Part C4 of the IDAP in particulars (d) and (e) of contention 1, that the northern part of the building exceeds the maximum three storeys permitted and that the southern part of the building exceeds the maximum six storeys permitted.
2. Four2Five submits that in considering the application of cl 4.3(2A), the Council's IDAP should be given little weight. The Council submits that if cl 4.3(2A) is ambiguous, the policy, and the documents explaining the building heights standards that were publicly exhibited at the time the LEP was in draft form (exhibit 11) can be given some weight to assist in resolving any ambiguity.
3. In my view it is not appropriate to give Part C4 of the IDAP any significant weight in determining whether seven storeys for the southern part and four storeys for the northern part of the building should be permitted. My reasons are as follows.
4. The IDAP is not a development control plan adopted in accordance with the procedure specified in Part 3 of the Act and Part 3 of the Environmental Planning and Assessment Regulation 2000. It was adopted by the Council on 10 December 2013 as an interim document, referred to in the report to the Council meeting as "an administrative update" to Ashfield Development Control Plan 2007 which related to the now repealed Ashfield Local Environmental Plan 1985 (the 1985 LEP) (exhibit A, p 65). The planners agreed that the amendments to the IDAP that inserted Part C4 Ashfield West were adopted on 23 September 2014, and that there was no public exhibition of those new provisions, and therefore no consideration of any public submissions in relation to those provisions before they were adopted by the Council (exhibit 5, p10). I accept that evidence.
5. As an expression of the Council's policy approach to development assessment, in a documented form adopted by the Council, the IDAP is a relevant consideration as an aspect of the public interest under s 79C(1)(e) of the Act: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. The weight to be given to such a policy was discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
6. In the present context, the policy reflected in Part C4 of the IDAP was not the subject of public consultation. The Council's solicitor informed Four2Five's solicitor that no specific research was undertaken, and that the IDAP was based on the experience and knowledge of Council's planners who prepared the policy (exhibit A, p 65). It is apparent from the diagram exhibited during the public exhibition period for the LEP, which notes that "maximum number of storeys and maximum ceiling height to be specified in DCP" (exhibit 11), that the IDAP is consistent with the Council's intention that controls for the maximum number of storeys will eventually be incorporated in its DCP. I accept that the IDAP is intended to guide decision-making in the interim before a DCP is made. However, the particular expression of policy as to the number of storeys in Part C4 has been in force only since September 2014, after the development application the subject of this appeal was lodged. More significantly, to the extent that Part C4 may represent a formalisation of the policy approach suggested in the documents exhibited during the public exhibition period for the LEP, that policy was departed from in the Council's decision in July 2014 to approve a modification application for the development at 380 Liverpool Road, to permit a seven storey development on that corner. In those circumstances, it is not appropriate to give the policy reflected in Part C4 of the IDAP any significant weight in determining whether seven storeys for the southern part and four storeys for the northern part of the building should be approved.
7. In the absence of a control in the LEP, or a DCP which could (subject to s 79C(3A) of the Act) specify the maximum number of storeys, and where the provisions of Part C4 of the IDAP can be given little weight, I accept the submission of Four2Five that an acceptable approach to determining the number of storeys that could be permitted is to consider the number that could fit within the maximum allowable height limit. That would, assuming 3m per storey, result in 3m x 7 storeys = 21m, + 2m for the roof, for a development where the maximum height limit is 23m. That approach finds support in the Fact Sheet 02 Maps and Land Use Tables provided by the Council for the LEP, which states (exhibit A, p 62): The maximum number of storeys is not controlled in the LEP. The exact number of storeys that can 'fit' within the maximum allowed height limit is dependent on the development type. For example, residential is approximately 3m per storey plus 2.5m for the roof; commercial is approximately 3m per storey plus 3m for roof/plant.
8. Assuming that this approach is correct, and that there is no barrier to having seven storeys in the southern section and four storeys in the northern section, the critical issue would then be whether the top storey could include "gross floor area", or whether that would be contrary to the development standard in cl 4.3(2A) applicable to development in the B4 zone.

Whether cl 4.3(2A) applies

1. In his contribution to the joint report (exhibit 5, p 6) Mr Fletcher expressed the opinion that it is arguable that the proposed development does not infringe the requirements of cl 4.3(2A), on the basis that "gross floor area" is defined to mean "the sum of the floor area of each floor of a building…" [Mr Fletcher's emphasis], and in the present case the RL of the top floor of each section of the proposed building is more than 3m below the applicable height limit.
2. The plans, in particular Drawings 301-304, show variation across the site in terms of the relationship between the top floor of the proposed development and the applicable height limits; the northern side, and the north-western corner, of the northern section, and the northern most section of the western side of the southern section, come closest to the 12.5m and 23m height control line, with unit walls, balconies and wintergardens, within the 3m below the applicable height limit. Drawing 301 (western elevation) shows that at the northern end of the southern section the minimum distance of habitable floor to the 23m height control line is 3.695m. However, while there is that variation, the definition of gross floor area specifies that the floor area is to be measured "at a height of 1.4metres above the floor", and none of the elements contained within the top storey fall within the exceptions to "gross floor area" as defined. I agree with the Council that cl 4.3(2A) applies. The issue is whether consent can be granted notwithstanding the proposed contravention of that development standard.

Variation of the development standards

1. Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

Development standard in cl 4.3(2A)

1. The written request prepared by Mr Fletcher in relation to cl 4.3(2A) states that none of the objectives in cl 4.3(1) provide any rationale, or outline any specific planning purpose, for the requirements of cl 4.3(2A), and that given that cl 4.3(2A) is confined to the question of the use of part of a building, rather than the height or form of the building, and that it applies in only one zone under the LEP, its planning purpose is far from clear. The request addresses the objectives of the height standard in cl 4.3(1) and the zone objectives. The request states that in relation to broader public benefits arising from the proposal, the site is located on the edge of the Ashfield Town Centre within easy walking distance of the railway station; it is located in close proximity to major regional road networks and the Town Centre, and has excellent accessibility to major transport and employment opportunities. The site is ideally suited to accommodate additional density as it has excellent access to public transport and areas of employment, educational facilities, entertainment and open space, consistent with the aims and objectives for additional housing and population density under the NSW Draft Metropolitan Strategy for Sydney to 2036. The proposed development includes ground floor retail/business space both for activation of the street frontages and to provide limited but increased employment opportunities, and will result in an increase in available housing stock in the locality. The request concludes that compliance with the development standard in cl 4.3(2A) is unnecessary in the circumstances of the case as the development meets the objectives of that standard and the zone objectives, and therefore insistence on strict compliance would be unreasonable. Additionally, the public benefits arising from the additional housing and employment opportunities delivered by the propose development provide sufficient environmental planning grounds to justify an exception to the development standard.
2. The written request addresses the matters specified in cl 4.6(3)(a) and (b). Clause 4.6(4) provides that consent cannot be granted unless the Court, as consent authority, is satisfied that the written request has adequately addressed the matters required to be demonstrated by subclause (3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
3. Clause 4.6(4)(a)(ii) requires consideration of the objectives of the development standard and the zone objectives. The planners were in agreement that the proposed development is consistent with the first and second dot points of the objectives of the B4 zone. They differed as to what the "Ashfield town centre" is for the purposes of the third dot point. Mr Fletcher was of the opinion that the zone boundaries under the former LEP were the town centre as defined in the former DCP, and so the expanded area of B4 zoning under the current LEP, which includes the subject site, would now be regarded as the town centre. Mr North considered the town centre to be more confined, and that the subject site is approximately 400m to the west of the town centre which stops at Thomas Street; he accepted that on his approach the third dot point is not relevant. In the absence of any formal identification of "Ashfield town centre" in the current planning controls, I prefer the approach of Mr North which focusses on the nature of the area closer to Ashfield railway station itself rather than an area derived inferentially from the expansion of the B4 zone. Had the expanded B4 zone boundaries been the determining factor, Part C4 of the IDAP would have made some reference to that, or used the term. However, even if Mr Fletcher's approach is adopted, based on the evidence before me as to the development in the locality I would not regard the proposed development, with its provision of one retail tenancy, as detracting from the viability, vitality and amenity of the Ashfield town centre so as to be inconsistent with that objective. Both planners agreed that the final dot point is neutral. On that basis, I am satisfied that the proposed development is consistent with the objectives of the B4 zone.
4. The objectives of the height development standard are provided in cl 4.3(1): (1) The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas.
5. The planners considered that cl 4.3(2A) is poorly worded and that the objectives of cl 4.3(2A) set out in cl 4.3(1) of the LEP do not explain the planning purpose, intent or desired outcome sought by the control in cl 4.3(2A). They agreed that one apparent purpose of cl 4.3(2A) is in part an attempt to avoid "rooms in the roof" architectural styles similar to those in developments at 393-399 Liverpool Road and 415 Liverpool Road.
6. In his contribution to the joint report Mr North expressed the opinion (exhibit 5, p 7) that the objectives of cl 4.3(2A) may be determined from the historical development of the LEP, including a Council resolution of 13 December 2011 that requested a report "demonstrating that buildings of 23 metres will be limited to 6 storey …" or if that is not possible, an LEP clause "which would prohibit unintended storeys" (exhibit 8); and community consultation in 2012 in which public display information panels clearly illustrated that a 23m height limit was designed to achieve a 6 storey building height with plant rooms, lift motor rooms and parapets located in the top 3m (exhibit 11). Mr North referred to Figure 1 and Map 2 in Part C4 of the IDAP (paragraphs [25], [26] above). In Mr North's opinion, the purpose of the provision is: i.To make provision for communal rooftop open space and associated shade structures, plant rooms, lift overruns, cooling towers and the like which would otherwise be excluded under the standard instrument height definition; ii.To achieve a six storey built form where a 23m height limit applies and a three storey built form where a 12.5m height limit applies.
7. In Mr Fletcher's opinion (exhibit 5, pp 5-6) cl 4.3(2A) is simply a restriction on the use of structures that are within the 3m height limit, and in this instance it is an argument of technical non-compliance rather than concern about the design, height or appearance of the development; and no planning purpose would be served by preventing the use of the top floor of the building for residential purposes in circumstances where the design and appearance of the building are considered appropriate and the development otherwise complies. For Mr North, it is not an issue of technical non-compliance but a fundamental issue of urban form where the intent is for a three/six storey street wall with ancillary non-habitable functions in a smaller, recessed level above and not generally perceptible from the street (exhibit 5, p 7).
8. While Mr North's outline of the background to the adoption of cl 4.3(2A) can be accepted as supported by the documents referred to, that has not found expression in the LEP. The objectives of the development standard are expressly stated in cl 4.3(1), and in terms apply to the whole of the clause, and not just to the height limit set under cl 4.3(2). This is not a situation where, as common under the former SEPP 1 variations to development standards in older planning instruments, it is necessary to ascertain the underlying object or purpose of the standard: Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438, Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79. Accordingly, the appropriate reference for cl 4.6(4)(a)(ii) is the statement of objectives in cl 4.3(1).
9. The planners agreed that the proposed development is consistent with objective (a) to achieve high quality built form. Mr North was of the opinion that the issue is consistency with the Council's strategic planning vision, however objective (a) refers simply to the built form, rather than the planning vision. On that aspect, both planners were agreed that it is satisfactory. In relation to objective (b) to maintain satisfactory sky exposure and daylight to existing buildings surrounding the site, both agreed that sun and daylight for the buildings to the north is not affected, while for the building to the east, there was agreement that the setbacks are compliant. Mr North was of the opinion that the proposed use of the top floor of the building would reduce daylight exposure to the streets, and that there would be a diminishing of sky exposure when viewing the development from Frederick Street and Liverpool Road. The restriction imposed by cl 4.3(2A) relates to "gross floor area" which, as defined, includes and excludes a range of specified uses (or lack thereof) of space within external walls. Applying that definition, I prefer the evidence of Mr Fletcher which was that what is provided in the upper 3m of the building, rather than some structure of similar dimensions which might fall within the exceptions to "gross floor area", would not of itself have an adverse impact on daylight and sunlight exposure. There are no public areas including parks for which sky exposure or daylight is affected. In my view the proposed development is consistent with objective (b). In relation to objective (c), there are no heritage items in the locality. Mr North considered that the "different areas" referred to in that objective are the different land use zones. There is a zone boundary at the northern boundary to the site, with adjoining properties fronting Beatrice Street zoned R3, so that the relevant "transition" in built form and land use intensity would be that from the northern section of the development. Mr North accepted that cl 4.3(2A) does not apply to development in the R3 zone and that as a consequence a development in that zone to the maximum height limit of 12.5m could have four storeys: in that context, and applying cl 4.3(2A) to the subject site, there could be a transition from 6 storeys up to 23m on the southern part of the site to 3 storeys up to 12.5m on the northern part of the site to 4 storeys up to 12.5m in the adjoining R3 zone. However, Mr North noted that cl 5.9(b) of the IDAP would require that a fourth storey in the R3 zone be in an attic configuration within a roof pitch of 30 degrees. Assuming that any redevelopment of the properties on Beatrice Street in the R3 zone were to the 12.5m height limit, and that any fourth storey complied with cl 5.9(b), there would be a transition in built form from the subject site with a complete, albeit recessed, habitable storey, to an attic configuration at a similar height; the same could be said, however, for a development of the subject site that complied with cl 4.3(2A). The FSR controls would themselves impose a transition in land use intensity as the maximum FSR permitted under the LEP for the properties fronting Beatrice Street is 0.7:1, and 2.0:1 for the subject site. The proposed development is not inconsistent with the objective of providing a transition as expressed in objective (c). The planners agreed that the proposed development maintains satisfactory solar access to existing buildings and public areas, consistent with objective (d), and I accept that evidence.
10. I am satisfied that the proposed development satisfies cl 4.6(4)(a)(ii). Clause 4.6(4)(a)(i) requires that the Court is satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), namely that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
11. The environmental planning grounds identified in the written request are the public benefits arising from the additional housing and employment opportunities that would be delivered by the development, noting (at p 5) the close proximity to Ashfield railway station, major regional road networks and the Ashfield town centre; access to areas of employment, educational facilities, entertainment and open space; provision of increased employment opportunities through the ground floor retail/business space; and an increase in the available housing stock. I accept that the proposed development would provide those public benefits, however any development for a mixed use development on this site would provide those benefits, as would any similar development on any of the sites on Liverpool Road in the vicinity of the subject site that are also in the B4 zone. These grounds are not particular to the circumstances of this proposed development on this site. To accept a departure from the development standard in that context would not promote the proper and orderly development of land as contemplated by the controls applicable to the B4 zoned land, which is an objective of the Act (s 5(a)(ii)) and which it can be assumed is within the scope of the "environmental planning grounds" referred to in cl 4.6(4)(a)(i) of the LEP.
12. The written request argues that compliance is unnecessary in the circumstances of the case because the proposed development meets the objectives of the standard and the zone objectives, and that insistence on strict compliance would be unreasonable. Achieving the objectives of the development standard notwithstanding non-compliance with the standard was the most commonly invoked way of establishing that compliance with a development standard was "unreasonable or unnecessary in the circumstances of the case" under cl 6 of SEPP 1: Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] per Preston CJ. In Wehbe at [44]-[48] Preston CJ identified other ways in which an applicant might establish that compliance with a development standard is unreasonable or unnecessary, namely that the underlying objective or purpose is not relevant to the development; that the objective would be defeated or thwarted if compliance was required; that the development standard has been virtually abandoned or destroyed by the Council's own actions in departing from the standard; or that the zoning of the land is unreasonable or inappropriate.
13. I agree with the submission of Four2Five that the wording of cl 4.6, being different to that in SEPP 1, requires the decision-maker to be faithful to the language of the clause rather than any stated principles developed in the application of SEPP 1, and that, subject to that caution, the case law developed in relation to the application of SEPP1 may be of assistance in applying cl 4.6. While Wehbe concerned an objection under SEPP 1, in my view the analysis is equally applicable to a variation under cl 4.6 where cl 4.6(3)(a) uses the same language as cl 6 of SEPP1. Consistency with the objectives of the development standard and the zone objectives is now addressed specifically in cl 4.6(4)(a)(ii), with separate attention required to the question of whether compliance is unreasonable or unnecessary, using the same expression as that in cl 6 of SEPP 1, in cl 4.6(3)(a) and 4.6(4)(a)(i) of the LEP. The written request does not identify any of the additional ways of establishing that compliance is unreasonable or unnecessary in the circumstances of the case.
14. In submissions Four2Five relied on the approval of a seventh storey for 380 Liverpool Road in breach of the development standard, to a height of 23m. That development is on the opposite corner to the subject site, described in the initial assessment report as "an important road intersection" (exhibit A, p 74). While the approval of that development at seven storeys with gross floor area in the top 3m did not comply with the development standard in cl 4.3(2A), in my view it does not represent a complete abandonment of the standard. The initial assessment report for 380 Liverpool Road noted that the elements that occupied the top 3m of the building were located on the corner of the site "where they assist in providing a better urban design outcome by articulating the corner of the road intersection" (exhibit A, p 73). The plans as modified in July 2014 (exhibit A p115S) support the evidence of Mr North that the seventh storey built form does not extend to the side boundaries: bedrooms in units 6.02 and 6.03, which are located at the corner, extend to the frontage, while units 6.04, 6.05 and 6.01 which are further away from that central point are set back from both the street frontage and the side of the site by extensive balconies, and wintergardens. However, the proposed development on the subject site includes in the northern section unit 3.08, built to the Frederick Street frontage and with a balcony 3.750m deep on its northern side, while the southern section includes unit 6.01 which extends to the side boundary with 421-423 Liverpool Road. Mr North conceded in oral evidence that if the approval of 7 storeys at 380 Liverpool Road is to be taken into account, it would support there being one unit located on the corner of the subject site. In my view, accepting that it is appropriate to regard the subject site as a "gateway" site analogous to that at 380 Liverpool Road, at its highest the approval of a seventh storey of habitable space for 380 Liverpool Road might support an argument that compliance with cl 4.3(2A) for that part of the proposed development confined to the corner of Liverpool Road and Frederick Street would be unreasonable or unnecessary. However, it is not necessary to express a concluded view, as that is not the basis on which the written request seeks to justify the contravention of the development standard, nor does it reflect the development as proposed.
15. I am not satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard, or that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, as required by cl 4.6(4)(a)(i), and accordingly the requirements of cl 4.6(4) of the LEP are not met. This conclusion makes it unnecessary to express a concluded view on the application of cl 4.6(5) of the LEP, having regard to the discussion of the equivalent cl 8 of SEPP 1 in Wehbe at [40]-[41], in circumstances where the concurrence of the Director-General is to be assumed (Planning Circular PS 08-003, 9 May 2008, exhibit D).
16. The Council's draft Conditions (exhibit 9) include Condition B(1)(a) and (b) requiring the deletion of level 6 (units 6.01-6.03) from the southern part of the site and level 3 (units 3.06-3.09) from the northern part of the site. Compliance with that condition would achieve compliance with the development standard in cl 4.3(2A). In circumstances where I am not satisfied that cl 4.6 is met, that condition should be imposed so that there would be power to grant consent.

Compliance with the height standard in cl 4.3(2)

1. In their joint report the planners agreed that the glass balustrade that surrounds the rooftop communal open space area on the northern part of the building exceeds the 12.5m height control applicable under cl 4.3(2) of the LEP to that part of the site by up to a maximum of 1.3m. They agreed that the provision of rooftop communal open space is a desirable planning outcome. They disagreed as to whether the part of the building that exceeds the 12.5m height control is an "architectural roof feature" and, if it is not, whether an exception to the 12.5m height control should be permitted.
2. Four2Five accepts that if condition B(1)(a) and (b) is imposed, the communal open space on the top level of the northern section of the proposed development, including the glass balustrade and other structures, complies with the 12.5m height control in cl 4.3(2) of the LEP. For the reasons above, condition B(1)(a) and (b) should be imposed. As a consequence of the deletion of the units on level 3 on the northern section of the building, no variation of the height development standard would be required, and there is no barrier to the granting of development consent. In those circumstances, it is not necessary to express a view on the disagreement between the planners as to whether the elements of the building above 12.5m would be permissible under cl 5.6, or if not, whether a variation to the development standard in cl 4.3(2) should be permitted.

Desired future streetscape character and urban form

1. With the deletion of the units on level 6 of the southern part of the site and on level 3 of the northern part of the site by the imposition of condition B(1)(a) and (b), the proposed development would comply with the development standards in clauses 4.3(2) and 4.3(2A) of the LEP, and there would be power to grant development consent.
2. The Council contends that the proposal is inconsistent with the desired future streetscape character and urban form. In his contribution to the joint report Mr North noted (exhibit 5, p 9) that the original contentions relating to the aesthetics of the façade and street level activation had been resolved; the remaining contention concerns the form and height of development, in particular as presenting to the street, sought by the Council in the B4 zone. Mr North's concern was with the habitable space in the top 3m, which would in his opinion fail to achieve the 3 and 6 storey built form and streetscape appearance sought by the controls. Mr North identified existing developments close to the site (exhibit 5, Appendix E) which in his opinion establish a predominant existing urban form consisting of a maximum street wall height of no more than six storeys.
3. Those developments were approved under earlier planning instruments. The proposed development, with the imposition of condition B(1)(a) and (b), complies with the development standards in cl 4.3(2) and 4.3(2A), and with the maximum FSR under cl 4.4, under the current controls as expressed in the LEP which reflect the desired future character of the locality. In those circumstances I am satisfied that the concerns for desired future streetscape and urban form as articulated by Mr North are addressed.

Objector submissions

1. It was common ground that the proposed development does not overshadow adjoining development and that the setbacks to the building to the east are compliant. The Council accepts that the setbacks and privacy measures proposed in the plans as amended address any overlooking or privacy concerns. Considering the other matters raised in the objectors' submissions, I accept the agreed evidence of the traffic engineers as to compliance with AS/NZS 2890.1:2004, and management of vision for pedestrians and vehicles in the form of the proposed condition B(1)(d). The transfer of the land from the RMS was subject to a restriction on user requiring consent for construction of access to Frederick Street or Liverpool Road, other than for access for a width of 8m at the northern part of the site, where the driveway access is now proposed. The RMS has provided concurrence for the proposed driveway on Frederick Street (exhibit 2, p 16). Proposed condition D(6) requires underpinning and support of adjoining buildings if required and notice to adjoining owners before excavation, and condition D(9) requires a dilapidation report for existing buildings at 20 Beatrice Street, 417 Liverpool Road and 421 Liverpool Road before the commencement of any demolition, excavation or construction works. Proposed condition H(2) requires that garbage and recycling bins are kept in the garbage bin storage area in the main block and placed in the designated pick up area (shown at the northern part of the site on drawing 204) on the day of collection.

Conditions

1. The parties agree on the appropriate conditions of consent, with the exception of proposed condition C(21) relating to the proposed public art in the form of a Fish-Trap on the Frederick Street side of the building. The Council's proposed condition reads: (21) Public Art - Interpretative Panel The applicant is to submit to Council, and obtain the approval of Council's heritage advisor, details including detailed graphics in colour, of an interpretative signage strategy for the public art that is provided as part of the development. This is to: (a) Consist at least of a panel/s no smaller than 0.7m2 in area, of high durability (eg stencilled/etched stainless steel or material of similar durability), located at pedestrian eye level, clearly visible to passing pedestrians on Frederick Street and/or Liverpool Road; (b) Clearly explain the role of the site as a major gateway into Ashfield; (c) Acknowledge the role of the original indigenous inhabitants of the area; (d) Clearly explain the artistic intent of the "Fish-Trap" vertical sculptural elements fronting Frederick Street in the link between the two halves of the site. The approved interpretative signage must be installed prior to the release of the Occupation Certificate.
2. Four2Five agrees to provide an interpretive sign in the form suggested by the condition however objects to the necessity of the Council's heritage advisor having to approve it. Four2Five notes that it had proposed public art in the form of a Fish-Trap, and that the proposal is acceptable to the Council, and submits that what is required for the signage is clearly and fully set out in the proposed condition. The sign will be prepared by the project architect, who designed the Fish-Trap from his understanding of the importance of the site and the role of the original inhabitants of the area, and that he is the only person who can explain the artistic intent of the sculpture and therefore the heritage advisor should not be in a position to disagree. Four2Five submits that this condition should be re-worded to require submission of the proposed details to the Principal Certifying Authority.
3. Details of the public art proposal, and its context of the use of traditional fishtraps by the Gadigal and Wongal clans of Eora land, have been provided to the Council (and included as Appendix F to exhibit 5). In the context where the site is on a prominent corner and regarded by both planning experts as a "gateway" site, and where it is intended that the signage be clearly visible to passing pedestrians, I agree with the Council that the issue of streetscape and indigenous interpretation as recorded in the explanatory signage should not be left to a certifier, and that the final approval should be that of the Council. Condition C(21) should be imposed in the form proposed by the Council.

Conclusion

1. For the reasons provided above, I am satisfied that the proposed development with the imposition of Condition B(1)(a) and (b) complies with the relevant development standards, and is consistent with the objectives of the B4 zone. I am satisfied that the merit contentions initially raised by the Council, including compliance with the requirements of the RFDC, and the matters raised in submission by objectors, have been addressed, and that it is appropriate that development consent be granted subject to conditions.
2. The orders of the Court are: 1. The appeal is upheld. 2. Development application No 17.2014.3 for the construction of a mixed use development consisting of a residential flat building and retail premises including car parking and landscaping works at 425 Liverpool Road Ashfield is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 4, 9, B and C. Linda Pearson Commissioner of the Court

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