Gejo Pty Ltd v Canterbury-Bankstown Council

The site and the locality

1. The site comprises two lots legally known as lots 334 and 335 in DP13801, known as 9-11 Weyland Street, Punchbowl. Together the two lots combine to form a rectangular site of 1040m2 with a southern frontage of 24.38m to Weyland Street and a northern rear boundary of 24.38m. The properties to the rear of the site and sharing that rear boundary have frontage to Canterbury Road.
2. The hearing commenced on site, at which time observations were made about the site and surrounding development. Two single storey residential dwellings are currently situated on the site, with a single dwelling and detached outbuilding located on each of the two lots comprising the site.
3. Adjoining the site to the east is 7 Weyland Street, which contains a single storey dwelling house. A large camphor laurel is located at the rear of 7 Weyland Street in close proximity to the proposed basement excavation, but is the subject of permission from the Council for its removal. Adjoining the site to the north at 1560 and 1562 Canterbury Road are dwelling houses. To the west, at 13-15 Weyland Street, two single storey dwelling houses have been demolished and excavation work has commenced.
4. Development consent has been granted for mixed use development on the adjoining properties to the north and to the west, as well as properties further west. That includes:

• Development consent for a 6-storey mixed use building at 17-19 Weyland Street (DA 550/2013).
• Development consent for a 6-storey mixed use building at 23 Weyland Street (DA 512/2013).
• Development consent for a 5-storey mixed use building with a roof top communal open space at 1152-1560 Canterbury Road (DA 406/2016), adjacent to and north east of the site, by agreement following a conciliation conference.
• Development consent for a 6-storey mixed use building with a roof top communal open space at 1562-1568 Canterbury Road (DA 354/2015), adjacent to and north west of the site.
• Development consent for a 6-storey mixed use building with a roof terrace at 13-15 Weyland Street, immediately to the west of the site.

1. The figures below demonstrate where six storey developments have been approved, and the form of those with respect to four of those sites.
2. The development consents for 13-15 Weyland Street (DA-263/2015) and 17-19 Weyland Street (DA-550/2013/A) each arrange the development as two separate buildings, one six-storey building at the front of the site and one six-storey building at the rear of the site. In the present application, Gejo seeks to continue that form along Weyland Street at the subject site.
3. Each of the development consents referred to above was granted under the same planning controls as what applies to the site the subject of these proceedings.

The planning framework

1. Section 79C(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is zoned B5 Business Development under the Canterbury Local Environmental Plan 2012 ("CLEP 2012"). Clause 2.3(2) of the CLEP 2012 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: "• To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations."
3. Residential accommodation is prohibited in the zone in accordance with the land use table. However, cl 2.5 of the CLEP 2012 provides that, despite anything to the contrary in the land use table, Schedule 1 permits certain development to be carried out either with or without development consent on particular land referred to in the Schedule. Schedule 1 Clause 1 of the CLEP 2012 provides that for sites identified "A" on the Key Sites Map development for the purpose of residential accommodation is permitted with development consent, but only as part of a mixed use development. The site is in an area identified "A" on the Key Sites Map of the CLEP 2012. Although the parties referred to cl 6.7 of the CLEP 2012 as allowing the development to be permissible with consent, cl 6.7 does not apply as the development proposal is not for "a mixed use development… incorporating residential accommodation and a medical centre".
4. Clause 4.3(2) of the CLEP 2012 establishes the height controls in accordance with the Height of Buildings maps. Pursuant to those maps, the applicable height control is 18m. As discussed below, the proposal breaches the height control with the height of 18.09m for the building to the front and 20.95m for the building to the rear.
5. Clause 4.6 allows a variation to development standards to be permitted, and provides as follows: "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 Secretary has been obtained. …"
6. SEPP 65 also applies, and provides at cl 28(2) that: "(2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide."
7. Clause 30 of SEPP 65 provides: "(1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria."
8. The Apartment Design Guide ("ADG") is therefore relevant in the context of clauses 28 and 30.
9. The Canterbury Development Control Plan 2012 ("CDCP") also applies and is considered below.

Evidence

1. There were no residents or objectors who addressed the Court at the hearing, however three submissions were received by the Council in response to the notification of the original development application in early 2016. Those submissions raised loss of amenity and traffic. On the notification of the amended proposal in August 2016, a further submission was received that raised concerns about building height, visual privacy (from the rooftop terrace), overshadowing and the contribution of the building to the streetscape.
2. In considering the proposal, I am assisted by the evidence of Mr Scott Barwick and Mr Philip Bull, town planners, who participated in a joint conference of experts, prepared a joint report and gave evidence at the hearing.

Calculating the height of the proposal

1. The Dictionary to the CLEP 2012 contains the following definitions relevant to the determination of the actual height of a building: "building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) … including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like." "ground level (existing) means the existing level of a site at any point."
2. Notwithstanding these definitions, Mr Bull has calculated the building height based on the decisions in Stamford Property Services Pty Ltd v City of Sydney & Anor [2015] NSWLEC 1189 and Bettar v Council of the City of Sydney [2014] NSWLEC 1070. In both of those decisions, the Commissioners determined that in order to calculate the ground level (existing) on a complex altered site where there is no 'ground', the ground level at any point should be based on a sloping plane between two surveyed points at a known ground level. Mr Bull says that because there is an uncharacteristic low point on the site, the method of calculation used in Stamford Property Services Pty Ltd v City of Sydney and Bettar v Council of the City of Sydney should be applied in preference to the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development to determine the maximum building height. As a result, Mr Bull says that the proposal only breaches the height control for the building at the rear, and that the non-compliance is generally restricted to the roof terrace and associated structures, including the lift overrun.
3. I do not accept that the method used by the Commissioners to calculate the ground level (existing) in Stamford Property Services Pty Ltd v City of Sydney and Bettar v Council of the City of Sydney overrules, or intends to overrule, the definitions contained in the relevant LEPs. This is clear from the comments in the joint judgment of Commissioner Pearson and Acting Commissioner Smithson at [283] of Stamford Property Services Pty Ltd v City of Sydney, in which they stated "the actual height of the proposed building must first be determined, by application of the 2012 LEP definitions." The task undertaken by the Commissioners in those decisions is one whereby they found a way to apply the definitions contained in the LEPs in circumstances where the existing ground level is not known due to extensive development on the site. Given that there has been no extensive excavation of the site the subject of the current proposal, and the ground level is known and can be surveyed, the method used in those cases for calculating the ground level (existing) is irrelevant. Instead, the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development reflects the definitions in the CLEP 2012 and should be used to calculate the building height. The fact that there is an uncharacteristic depression on the site is not relevant to this calculation, but might be relevant to the request to vary the height control considered below.
4. As such, I accept the evidence of Mr Barwick that the extent of the non-compliance is 9cm for the front building and 2.95m for the building at the rear. Those parts of the rear building that exceed the height standard are structures associated with the roof terrace, including the lift well that allows access to the terrace.

Request to vary the height control

1. Clause 4.6 of the CLEP 2012 allows development standards to be applied flexibly in certain circumstances. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ found that in applying the provisions of cl 4.6, the power to allow an exception to a development standard can be exercised where the Commissioner is satisfied that: 1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]), 2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]), 3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and 4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]).
2. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent with the objectives of the zone and of the standard (i.e. meets (1) and (2) above), then it is in the public interest. I also note that nothing in cl 4.6 requires the consistency with the objectives to be established in or by the written request.
3. Further, in outlining (3) and (4) above, regarding the requirements for the written request, Preston CJ stated that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather "only indirectly by being satisfied that the applicant's written request has adequately addressed" those matters.

The request by Gejo

1. In support of the application, Gejo provided an amended clause 4.6 request that was attached to the joint report filed in the proceedings. It is 13 pages long, contains repetition, and below some of the headings there is content that bears little resemblance to what is required by the heading. It deals with previous decisions of the Court as separate tests rather than as ways of understanding what is required by cl 4.6, and although it recites the objectives of the zone, no analysis of consistency with those objectives has been provided. Further, instead of substantively and clearly dealing with the four matters above its focus is on lack of impact and on there being "no environmental planning ground to justify refusal," notwithstanding that this is not the test established by cl 4.6. Nevertheless, I have been able to discern that the request raises the following points:

• The proposal is consistent with the emerging character of the locality, which is for six-storey mixed use development, some of which contain roof terraces above the sixth storey.
• The proposal is consistent with the form of development for the two sites to the west, which is for two buildings with a mid-block courtyard.
• The roof terrace will provide valuable amenity to the site, and a six storey building without a roof terrace could comply with the 18m height control but would be less desirable than one with a roof terrace. The resultant breach of the height control is therefore "reasonable and necessary in the circumstances of the case" and is "intrinsically linked to improved building amenity."
• The structures on the roof terrace that create the additional height do not have any adverse impacts but instead improve the amenity for future residents of the proposal by allowing them to access the roof terrace.
• The development approved at 13-15 Weyland Street breaches the height control by up to 3m, and the development approved at 1562-1568 Canterbury Road provided an initial variation to the height control of 2.3m and was the subject of a condition to provide a roof terrace which resulted in an increase in the variation to over 5m.
• There have been changes to the plans that have reduced the overall height of the proposal and therefore reduced the external shadow impacts.
• The breach of the height control standard is limited and implicitly sanctioned by the recent approvals of 6-storey buildings with roof terraces on adjoining B5 zoned land.
• The proposal is in the public interest because it is a high quality mixed-use building, provides a comprehensive landscape scheme that includes substantial rear and courtyard plantings, and allows the potential for part of the rear setback to be retrofitted as a mid-block lane as envisaged by the Council's resolution of 28 August 2014.
• If strict numerical compliance was required, then the site "would not be implementing urban consolidation to the fullest extent practicable."
• The 18m height control has been abandoned on the two development approvals on the sites adjoining the proposal.
• A better planning outcome is achieved with a building that continues the scale of buildings approved and mid-block courtyards approved to the west.

1. Mr Bull gave evidence in support of this request, and he opines that the graphics in the CDCP that support the provisions regarding height and setbacks imply that a 6-storey building is achievable. Mr Bull also says that the Council has consistently administered the provisions to allow 6-storey mixed use development in the B5 land bound by Weyland Street. He also refers to the Canterbury Road Review of July 2017, which proposes a new vision for Canterbury Road with an "indicative built form with a maximum of 6 storeys, the basis of which is set out in the Urban Design Study and was feasibility tested in the Economics Analysis" (p.17).

The Council's response to the Clause 4.6 request

1. The Council submits that the cl 4.6 request is not well founded, and does not address why compliance is "unreasonable or unnecessary". In particular, the Council says that Gejo has failed to demonstrate, in the request, why the development could not be carried out in a compliant manner such as through a 5-storey building.
2. The Council relies on the evidence of Mr Barwick, who notes that the height development standard is the primary statutory development standard that applies to the development. Mr Barwick holds the view that a height limit of 18m anticipates development of up to five storeys, based on the requirements of the Apartment Design Guide for minimum floor to ceiling heights of 2.7m for residential and 3.3m for the ground floor commercial, which results in floor to floor heights of 3.1m and 3.7m respectively to accommodate slab thickness. Mr Barwick opines that the approach taken by Gejo to seek the provision of a sixth level with slab thicknesses down to 170mm has compromised amenity to accommodate an additional level of accommodation, and that these compromises directly contribute to the non-compliance with the development standard.
3. An issue about whether slab thickness of 170mm was possible was raised by Mr Barwick, but this was not a contention in the proceedings. Mr Barwick points out that the advice provided by ARC Engineering in support of a slab thickness of 170mm does not identify the Australian Standards that would be complied with or if the relevant fire rating levels between dwellings will be achieved.
4. Mr Barwick says that the justification in the clause 4.6 that there are public interest benefits cannot be supported insofar as it relies on a comprehensive landscape scheme for the site. He points out that the plantings to the rear are in planters that sit above onsite detention tanks with minimal soil depths indicated, and the only non-planter landscape opportunity is a small left over triangular area in the north east corner of the site.
5. In relation to whether the DCP contemplates 6 storey buildings, Mr Barwick says that no inference can be drawn from the diagrams in the DCP as the DCP provisions relate to business zones generally which are subject to LEP height of building development standards ranging up to 30m in height. The Council also submits that the Canterbury Road Review is not applicable to the site, and limited weight can be placed on it in any event.

The Clause 4.6 request should be allowed

1. From the outset, in my view it is misleading to say that the non-compliance results from the roof terrace. In fact, the non-compliance results from Gejo seeking a 6 storey development with a roof terrace. In that respect, I accept the evidence of Mr Barwick that the proposal seeks an additional level that is achieved by minimising the slab thickness and is otherwise not contemplated by the 18m height control. The Canterbury Road Review neither applies to the site nor is a planning instrument that can justify a proposal for a six storey development with a roof terrace on the site.
2. Further, to address the cl 4.6 by promoting the value of a roof terrace is similarly misleading. A roof terrace can be incorporated in a development that complies with the height limit by placing it on top of a four-storey or a five-storey proposal. The exercise of attempting to justify the additional height based on the desirability of a roof terrace, or on the lack of impact of the roof terrace and lift overrun, does not consider the development proposal as a whole and is therefore of itself inadequate to satisfy the matters required by cl 4.6.
3. However, even if another proposal (such as a five-storey building with a roof terrace) would be a better outcome for the site in complying with the standard, I am required to assess the development application that is the subject of the appeal. Given that the proposal is consistent with the emerging character of the locality along Weyland Street and continues the building form approved on the two sites to the west, I am of the view that the request to vary the development standard should be allowed. Applying the provisions of cl 4.6, my reasons are as follows.
4. First, I find that the proposal is in the public interest insofar as it is consistent with the objectives of the zone. Although the cl 4.6 request provided little assessment of that consistency, I accept that the proposal provides for residential use in conjunction with mixed-use development, consistent with the second objective. In doing so, it supports the viability of the area bounded by Weyland Street and Canterbury Road as a centre around which there is a mix of business and warehouse uses. The site view demonstrated that the area is well connected to community parks, and the renewal of this site in conjunction with the adjacent sites is consistent with the objective to support urban renewal that encourages increased walking, and supports employment opportunities in an area accessible from Canterbury Road.
5. Second, I find that the proposal is consistent with the objectives of the height control. The objectives of the height standard are: "(a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities."
6. The cl 4.6 request is devoid of any analysis of the first objective (the request incorrectly considers it to be irrelevant). Insofar as it applies to the area as it undergoes transformation, the first objective is concerned about establishing (rather than maintaining) its "desirable attributes and character". The development controls in both the CLEP 2012 and the CDCP 2012 are relevant to identifying the "desirable attributes and character" of an area, as well as what the Council has considered appropriate development through its approval of other proposals. Given that the nature of the proposal as mixed use development is specifically encouraged in the area by its identification as a key site, that there is no control in the CDCP 2012 on the number of storeys, and that the Council has already approved a form of development consistent with the present proposal that it considers desirable for the area, I accept that the proposal is consistent with the objective to establish the "desirable attributes and character" of the area. I accept there is consistency with the remaining objectives as follows:

• Gejo has taken steps to reduce the height of the proposed building and therefore the overshadowing, and to achieve a desired level of solar access, which will be discussed in more detail below.
• In achieving public open space, the proposal provides active street frontages and good communal open space at both the courtyard and roof terrace.
• The building is designed to address Weyland Street with increased setbacks above the second and fourth level that contribute positively to the streetscape.
• Objective (d) does not arise as Weyland Street is not considered to be an important road frontage.

1. As set out above, cl 4.6 assumes that if the proposal is consistent with the objectives of the height standard and the zone, the public interest is achieved. I do not consider the adequacy of the landscaping to be a relevant matter to my consideration of either set of objectives, but I deal with it separately in response to the contention regarding deep soil landscaping.
2. The third aspect of cl 4.6 is whether the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. I accept that, by demonstrating that the Council has abandoned the 18m height control on adjoining developments and has considered that 6 storey developments (with or without roof terraces) are appropriate on Weyland Street, the cl 4.6 request establishes that compliance with the control is unnecessary and unreasonable in the present circumstances. This reflects the fourth test set out by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. At [44]-[48], His Honour detailed five alternative approaches which might establish that compliance with a development standard is "unreasonable or unnecessary" for the purposes of an objection to a development standard under the State Environmental Planning Policy No 1 - Development Standards. Whilst the policy does not apply to the present application, the approaches detailed by Preston CJ inform how cl 4.6(3)(a) might be satisfied. The fourth of those approaches, often referred to as "Wehbe test 4", is that the development standard has virtually been abandoned by the Council's own actions in departing from the standard. I accept that the request demonstrates that this is what has occurred west of the site along Weyland Street, and on the site to the north east where the Council not only approved a 6-storey development that breached the height control but also required a communal open roof space to be constructed on part of the otherwise non-trafficable roof as a condition of development consent. In circumstances where the Council has not applied the standard to adjacent sites, and has twice varied the standard to allow additional height to accommodate a 6th storey and a roof terrace, and there has been no change to the controls or the standard, it would be unreasonable to require compliance with the standard on this site.
3. The final aspect of cl 4.6 is whether the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). I am satisfied that the written request does so by stating that the sound urban planning outcome for the site is a building that continues the scale of buildings and mid-block courtyards approved to the west of it, and provides amenity to its residents through the roof terrace. The scale of the buildings proposed is commensurate with those already approved and allows a continuation in the building line along Weyland Street.
4. In light of the above, I am satisfied that, pursuant to cl 4.6(2), development consent can be granted notwithstanding the contravention of the height development standard.

Density

1. The Council says that the non-compliance with the height development standard established in cl 4.3(2) results in a greater density of development on the site than that contemplated under the standards that apply to the site and that the application should be refused on that basis.
2. In support of this contention, the Council relies on the evidence of Mr Barwick, who maintains that the application of SEPP 65 and the ADG results in a 5 storey building in an area with a 18m height development standard. Mr Barwick opines that the sixth level has been proposed in conjunction with compromises to the ADG guidelines on matters such as floor to floor controls, influencing residential amenity. In this instance the upper levels of the two buildings accommodate 6 dwellings, and Mr Barwick says that it is this form of additional yield achieved which has prompted the Council to review the Canterbury Road corridor.
3. Mr Bull, on the other hand, opines that the height of the building is anticipated by the controls because the Council has administered the 18m height standard as a 6-storey control in this street block, which is evidenced by the recent approvals and by the support of the Council's officer who prepared the assessment report for the present application. Mr Bull also says that the CLEP 2012 specifically encourages urban redevelopment of the site, that the relevant CDCP provisions for B5 sites do not a set a storeys or density control, and that the CDCP implicitly allows for 6-storey buildings by providing controls for buildings above 5 storeys and featuring 6-storey buildings in the accompanying graphics.
4. Mr Bull also says that there is sufficient infrastructure to support the density, including the provision of car spaces in excess of the requirements of the CDCP.
5. Gejo also submits that the density is not a relevant consideration in that it does not arise as an objective of the height control.

The density of the proposal does not warrant refusal

1. I agree that the increased number of storeys results in increased density. It does so in two ways. The first way is by increasing the number of dwellings on the site, and the second is by increasing the bulk and scale of the built form.
2. Notwithstanding this, there is no stipulated desirable density or density control for the site and therefore the density of the proposal is not a relevant matter for my consideration. I do not accept that the graphics used in the DCP can inform the desired density. There is no control over the number of storeys and there is no floor space ratio control applicable to the site. Whilst the contention regarding density is raised from the breach of the height development standard, I accept the submission of Gejo that density is not raised through the objectives of that standard. The only manner in which density could be considered is in the context of whether the proposal meets the design quality principles of SEPP 65, which is considered separately below.
3. I am therefore of the view that this contention does not warrant refusal of the development application.

Setbacks and building separation

1. The Council also submits that the application should be refused because the proposed development does not comply with the separation requirements of the ADG and the minimum side setback requirements of the CDCP.
2. Objective 3F-1 in Part 3F 'Visual Privacy' of the ADG provides the following design criteria: "1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Building Height Habitable rooms and balconies Non-habitable rooms Up to 12m (4 storeys) 6m 3m Up to 25m (5-8 storeys) 9m 4.5m Over 25m (9+ storeys) 12m 6m

1. Part 3.1.8 of the CDCP concerns setbacks and indicates a requirement for a minimum side boundary setback of 4.5m in the B5 Business Development zone for "straight residential development", with SEPP 65 separation requirements for a height of 4 storeys and above. The Council therefore says that the rear building should be setback 4.5m from the side boundaries as it is a "straight residential development" comprising residential apartments only.
2. Mr Bull and Mr Barwick agree that the only area of non-compliance with the separation guidelines of the ADG is between units facing the internal courtyard space. They agree that no residential apartment has a sole orientation to the courtyard space and that each unit has a compliant orientation in terms of separation distances, either being to the north for the northern building (Block B) or to the south for the southern building (Block A). They also agree that for the units that are orientated to the courtyard, a variety of privacy measures are proposed, including privacy louvres, planters and highlight windows.
3. Mr Bull also points out that the different rooms of the apartments are staggered, so that living areas orientated to the courtyard in Block A face bedroom areas in Block B, although Mr Barwick says that the design guidance of the ADG categorises both living rooms and bedrooms as habitable rooms.
4. Mr Barwick concedes that the inconsistency of the proposal with the ADG for separations may not be a reason, in isolation, to refuse the development application. However, Mr Barwick opines that the need for devices such as highlight windows and external screening indicates that there is too much volume proposed on the site, and that the separation is achievable and should be accommodated.
5. In relation to the requirement for the residential building to be setback from the side boundary, Mr Bull points out that the development consent for the adjacent site to the west has a zero setback for the rear building. He opines, therefore, that the best planning outcome for the site is to continue the consistent pattern of buildings approved in the street block and allow new buildings to be built up against approved boundary walls and avoid large areas of blank boundary walls. Mr Bull says that if the building to the rear (Block B) was required to have a 4.5m side setback, the units facing 13-15 Weyland Street would be looking at a 6-storey blank wall. Mr Bull opines that continuing the pattern of already approved courtyard buildings will allow a consistent mid-site courtyard, thereby minimising overlooking over side boundaries. Mr Barwick, however, opines that this would not apply to the eastern boundary at which point the setback should be complied with in order to maximise solar access.

There is adequate privacy and the setback requirement does not warrant refusal

1. The objective of the separation requirements is to provide adequate visual privacy. This is difficult in a design consisting of two buildings separated by a court yard, where some of the residential units must, by necessity, face the court yard and therefore face each other. Notwithstanding this difficulty, Gejo has done the following to achieve adequate privacy for those units with habitable rooms facing the court yard:

• Designed the residential units such that they are not solely oriented toward the court yard,
• Minimised the number of habitable rooms facing the court yard through the building design, and
• Proposed measures, including screens and highlight windows, to achieve adequate privacy for those habitable rooms facing the court yard.

1. I accept that the above measures are adequate to meet the objective of the ADG separation criteria.
2. With respect to the side setback, I accept the evidence of Mr Bull that continuing the pattern of already approved courtyard buildings will allow a consistent mid-site courtyard, thereby minimising overlooking over side boundaries and avoiding the consequence of residential units or other spaces looking at a blank boundary wall. I accept that this form can be continued on the eastern boundary so that there is a nil setback on that side also, given that this continues the form of buildings approved by the Council in the B5 zone along Weyland Street. Although this results in a non-compliance with the side setback control in the CDCP, in my view this does not warrant refusal of the development application. I deal with Mr Barwick's concerns regarding solar access further below.

Design quality of residential apartment development

1. The Council also says that the development application should be refused because the proposed development is inconsistent with the design quality principles of SEPP 65. The two principles that the Council is concerned about relate to the context of the development and the neighbourhood character, and the built form and scale of the development. Those principles are as follows: "Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook."
2. The Council relies on the evidence of Mr Barwick that whilst there have been approvals for 6 storey buildings in the locality, there are more recent consents for 5 storey buildings complying with the 18.0m height limit, including the granting of consent (following agreement after a conciliation conference) for a 5 storey mixed use development to the immediate north of the site at 1552-12560 Canterbury Road. Mr Barwick opines that there are also further potential development sites to the east of the site which are subject to the 18.0m height control to which compliance would be expected. He says that it cannot be said that the locality will comprise of 6 storey development only as development continues across those sites.
3. Mr Bull states that the proposed building's height is in response to the approved character of the street. He opines that given immediately adjoining approved buildings, the proposed buildings' height is not excessive. He states that the project architects from Fox Johnston are competent and well regarded architects capable of designing high-quality, medium density residential development and refers to awards won by them for their design of other proposals.

There has been adequate regard to the design quality principles

1. In exercising the functions of the consent authority, pursuant to cl 28(2) of SEPP 65, I am required to take into consideration (inter alia) "the design quality of the development when evaluated in accordance with the design quality principles".
2. Pursuant to cl 30 of SEPP 65, I am also precluded from granting development consent if I am of the opinion that the development "does not demonstrate that adequate regard has been given to" the design quality principles.
3. I note that these provisions require me to consider the development itself, rather than the reputation or past projects of those who design the development.
4. In so doing, I am satisfied that there has been adequate regard to the design principles, and that, in considering those principles, the proposal can be the subject of the grant of development consent. Consistent with the second principle, I accept the evidence of Mr Bull that the proposal achieves an appropriate scale, bulk and height as it continues the form of development that has been approved west of the site along Weyland Street. Similarly, I accept that the density of the site resulting from the additional height reflects that on the adjacent site to the west. In dealing with the constraints inherent in continuing the form of development approved on the sites to the west, I accept that the design of the proposal minimises the adverse impacts and maximises the amenity of the residents whilst also doing so in a form that is commensurate with what has been approved on adjacent sites. In doing so, it achieves appropriate built form for the site and contributes to the streetscape character of Weyland Street as it continues the street frontages for commercial units at ground floor.
5. It is clear that for those same reasons the proposal is responsive to the neighbourhood character as approved, consistent with the first design principle. Whilst a 5-storey building has been approved on the adjacent site to the north-east, that site can be distinguished from the present development as it does not have an adjacent site with an approval for a second building with a zero setback behind the building fronting the street.
6. As such, I am satisfied that this contention does not warrant refusal of the development application.

Solar access

1. The Council further contends that the development application should be refused because it has not been demonstrated that the proposed development receives adequate solar access.
2. Objective 4A-1 of the ADG is to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space. The applicable and relevant design criteria are that firstly, "[l]iving rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter" and secondly, that a "maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid winter."
3. For new buildings in business zones, cl 6.2.6 of the CDCP similarly requires that "[a]t least 70% of the proposed apartments' living area windows and private open space (balconies) receive at least 2 hours sunlight between 9.00 am and 3.00 pm on 21 June". An additional requirement is that "[a]t least 50% of any communal open space receives 2 hours of sunlight between 9.00 am and 3.00 pm on 21 June". The performance objectives of these requirements are that: "O1. Habitable rooms have daylight access, and other areas of development have reasonable access to daylight. O2. Natural ambient lighting to minimise the need for artificial lighting during daylight hours. O3. Residents and other building occupiers have the ability to adjust the quantity of daylight to suit their needs. O4. Adverse overshadowing to all buildings and outdoor areas is controlled to minimise negative impacts."
4. During the hearing revised solar access diagrams were provided by Gejo, which demonstrate the level of solar access to units assuming that development on the adjoining sites is built. In doing so, the diagrams depict the approved footprints and relative levels set out in the approved plans for the development consents for properties at 1562-1568 Canterbury Road, 1552-1560 Canterbury Road and 13-15 Weyland Street.
5. From these diagrams, Mr Bull's evidence is that:

• The number of units with at least 2 hours of direct sunlight to living rooms and private open space between 9am and 3pm on 21 June is 20, or 51% of the total number of units.
• The number of units with 2 hours of direct sunlight to living rooms only is 28, or 72% of the total number of units.
• Those 8 units that have direct sunlight to living rooms but not direct sunlight to private open space are located in the southern building and have been deliberately designed with south facing private open space to take advantage of district views toward Salt Pan Creek. The lower height development standard applicable to sites to the south of Weyland Street will result in those views being maintained over current and future development. This provides better amenity for those units despite them not achieving compliance with the design criteria.
• There are 6 units, or 15.38% of the total number of units, which do not receive any direct sunlight on 21 June.
• In his opinion, the criteria for determining whether there is adequate solar access is too strict and the requirement to use 21 June is not appropriate in circumstances where the units are lived in all year round and the angle of the sun changes dramatically after 21 June.

1. Mr Barwick contests the adequacy of the solar access for 2 of the units (numbered 005 and 107), and says that the amount of direct sunlight to the living spaces in those two units is between 1.5 hours and 1hr 45min. Mr Bull and Mr Barwick agree that amendments could be made to the design for two units (numbered 004 and 005) to increase solar access to the living areas of those units, and that amendment could be required by a condition of development consent.
2. Mr Barwick also contests the amount of solar access received by the private open spaces of those same units, as his view is that 50% of the private open space should have direct sunlight for the period specified in the design criteria. This means that in his opinion, only 46% of the residential units meet the requirement to have direct sunlight access for the requisite period into living areas and private open spaces. As a result, Mr Barwick opines that the design ought to be designed to comply and that the views to the south are not sufficiently significant to be preferred over access to direct sunlight.
3. No issue is raised regarding overshadowing of existing dwellings by the proposal, or regarding the overshadowing of the building caused by the dwellings currently located on adjacent sites, some of which are proposed to be demolished in accordance with the relevant development consents.

The solar access is adequate

1. From the outset, I reject Mr Bull's assertion that the criterion for solar access is too strict. The 2 hour requirement for 21 June is an indication that the very minimum amount of sunlight that should be received during any day of the year is 2 hours. 21 June is used as the sun is at its shortest angle, and one can infer that if the requisite number of hours is achieved on 21 June then more than that is achieved on any other day of the year (although measures are often taken to reduce access to direct sunlight in the warmer summer months when the angle of the sun is at its greatest, but that is not relevant for present purposes).
2. Nevertheless, I accept that there is adequate solar access to satisfy the objectives of the ADG and the CDCP for the following reasons.
3. Firstly, I am satisfied that with the amendment to unit 005, 69% of the units have access to direct sunlight to their living rooms, and that 48% of the units have solar access to their private open space. The unit that Mr Bull says receives adequate sunlight to the living space, unit 107, receives around 1hr 45min of direct sunlight and is not counted in the 69%.
4. To measure the amount of access to direct sunlight for private open space, contrary to the evidence of Mr Barwick the ADG does not require 50% of the private open space to have direct sunlight. Rather, I am satisfied that for the private open space to have direct sunlight, it must be a minimum of 1m2 of direct sunlight measured at 1m above floor level, consistent with the design guidance of the ADG.
5. Secondly, I accept that the units could be designed in a manner that results in around 60% of the units achieving the requisite hours of direct sunlight across both private open spaces and living areas. There is insufficient information to accept the evidence of Mr Bull and the statement of Mr Powell that they could be re-designed to enable 70% of units to achieve the requisite hours. For example, it is unclear how units 103 and 304 could be configured to have their private open space facing north when it is already to the north.
6. However, any such reconfiguration would result in an increase in the number of units in the southern building with both private open space and living space facing the court yard, compounding issues of privacy caused by the inadequate separation across the court yard. Instead of taking that approach, many of the units in the southern building (except for those on levels 1 and 3) have been designed with the living space facing north and private open space to the south, with some units having private open space to both the north and the south. This enables those units to have improved amenity that benefits from both direct sunlight to the living areas to the north, and views to the south.
7. This is exactly what is envisaged by the ADG, which provides that "[a]chieving the design criteria may not be possible on some sites", and provides examples including "where significant views are orientated away from the desired aspect for direct sunlight." Although minds may differ as to whether district views toward Salt Pan Creek can be considered sufficiently significant to take priority over access to direct sunlight, I accept that the design of those units achieves greater amenity as it provides for both access to sunlight to the living rooms and a southern desirable outlook from the private open space.
8. Thirdly, I accept that the access to direct sunlight on the site is constrained by the surrounding approved development. The surrounding approvals result in buildings of either 5 or 6 storeys to the north and to the west, with a form on the two sites to the west that results in two parallel buildings running west to east. The buildings to the north reduce access to direct sunlight to the proposed buildings on the site. Additionally, by continuing the form of buildings approved on the sites to the west (which I accept above is a good design for the site), there is the consequence that the southern building is partly overshadowed by the northern building. Due to these constraints, the ADG objective to "optimise the number of apartments receiving sunlight" can be achieved through a more flexible application of the design criteria. As such, that 69% of units receive adequate sunlight to living areas and 48% of units receive adequate sunlight to private open space is acceptable given those constraints. Further, the proposal on the site immediately to the west would be subject to the same constraints, presumably resulting in the same reduction in access to sunlight as a result of surrounding approved development, and that proposal was determined by the Council to be appropriate for the site.
9. Fourthly, I consider that 15.38% of units that do not receive direct sunlight on 21 June is substantial compliance with the ADG design criteria, which is for a maximum of 15%.
10. Fifthly, the proposal provides sufficient windows and features to maximise daylight access consistent with Objective 4A-2 of the ADG, which requires that "[d]aylight access is maximised where sunlight is limited". This includes maximising the number of units with both north and south orientation, the incorporation of the court yard and the rear setback. It also includes the use of skylights on the uppermost level of the southern building, which provides additional amenity and access to sunlight, despite the ADG requiring them to be considered a secondary source of light (see the design guidance for Objective 4A-2).
11. For the above reasons, I am satisfied that the current configuration of the units is a better outcome than orienting both living areas and private open space to the court yards to achieve compliance with the design criteria of the ADG. It achieves the objective of optimising the number of apartments receiving sunlight by providing at least 2 hours of direct sunlight access to the living rooms of 27 apartments, almost 2 hours to the living room of one apartment, and 2 hours of direct sunlight access to the private open space of 20 apartments whilst also providing amenity through district views to Salt Pan Creek from the private open spaces of 13 units.
12. For the same reasons, it achieves the objectives of the CDCP to provide habitable rooms with daylight access, to provide natural ambient lighting and to minimise the negative impacts of adverse overshadowing.
13. I find therefore that the proposal should not be refused on the basis that it does not provide adequate solar access.

Deep soil landscaping

1. The Council submits that the development application should be refused because the proposed development does not provide any deep soil areas and does not comply with the requirements of the ADG. The ADG provides, at objective 3E-1, that "Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality." The design criteria, insofar as it relates to the site, requires that 7% of the site area is a deep soil zone with a minimum width of 3m. The proposal has a landscape plan with a maximum soil depth of 300mm, with some plants to be contained in pots below ground level in pots of 45L capacity.
2. Mr Barwick initially gave evidence, in the joint report, that this should be provided at the rear of the site by removing some car spaces provided in the basement to allow for the deep soil landscaping. Mr Barwick and Mr Bull later acknowledged that this was not possible due to potential conflicts with on-site detention tanks used for stormwater drainage. Mr Barwick gave evidence that the current landscape plan only provides grasses and ground covers, and that the exclusions from deep soil landscaping that apply to other areas do not apply to the present site.
3. Mr Bull's evidence is that the proposal's non-compliance with the ADG deep soil requirements is not grounds for refusal of the application as the site is located in a business zone where deep soil landscaping is often not expected or required. He opines that the landscaping provided is of a high-quality and well considered, that the non-compliance with the ADG objective and design criteria has been supported by council officers in their assessment report, and a similar non-compliance was approved in respect to the development at 13-15 Weyland Street.
4. Although deep soil landscaping is a desirable feature of development, I accept that its exclusion from proposed development in a B5 zone does not necessarily warrant refusal of the development application and I do not consider that it warrants refusal in the present circumstances. First, there is no requirement by the Council's strategic planning instruments to provide deep soil landscaping on land located in the B5 zone, and I accept the evidence of Mr Bull that deep soil landscaping is not necessarily expected or required in such a zone. Second, Gejo has proposed a detailed and comprehensive landscape plan for the development, which results in plantings on the street frontage, throughout the central court yard, on and around the roof terrace and at the rear. Those plants range from a variety of different groundcovers to trees with mature heights of 10m, and result in landscaping on most of the communal open space. I am satisfied that this landscape plan for the proposal is adequate without deep soil landscaping.

Precedent

1. The Council also submits that the development application should be refused because the proposed development will set an undesirable precedent for the future re-development of sites within the locality. The Council says that the subject site located in an area which Is undergoing transformation, and that the proposal is not a design approach that is consistent with the desired future character of the area, particularly given the breach of the height development standard.
2. In support of this contention, the Council relies on the evidence of Mr Barwick. Mr Barwick opines that in seeking to continue the pattern of development previously approved to the west of the site, the proposal further entrenches poor outcomes particularly in relation to solar access achieved, deep soil landscaping and potential continued reliance on variations to the applicable 18.0m height of buildings development standard. Mr Barwick's evidence is that development proposals should ensure that the form and configuration of the proposal has regard to the impacts as well as the pattern of development on adjoining sites. Mr Barwick says that the application has not demonstrated that a continuation of the double block form achieves the required levels of solar access for the subject development and potential development to the east of the site.
3. Mr Bull says that that the precedent is already set for 6-storey buildings in this street block and that the approval of this building will not create a new precedent. Mr Bull opines that the alleged poor outcomes are in fact the emerging built form of this street block. He says that the courtyard pattern of development approved in this street block is efficient and to protest against this built form by introducing an alternative form will create poor outcomes for future residents as they will have units facing blank boundary walls rather than the shared amenity of courtyard spaces. Mr Bull therefore opines that the emerging context is a more important consideration in determining a good planning outcome than compliance with controls such as side setbacks controls that have been abandoned by the Council in this street block.
4. I accept that the precedent for development within the block bounded by Weyland Street and Canterbury Road has been established by the earlier development consents granted by the Council. Those approvals demonstrate that the Council considers the form of the buildings on the two sites to the west of the subject site (two parallel buildings each running west to east with a mid-site courtyard and no side setback) to be appropriate for Weyland Street. They also demonstrate, from the consent on 13-15 Weyland Street and 1562-1568 Canterbury Road, that they consider 6 storey developments with roof terraces appropriate within this particular key site. By doing so, they have considered it appropriate to depart from the 18m height standard. In circumstances where the Council has already established a precedent under the current planning regime, I accept that continuing that emerging built form is appropriate for the site and cannot be considered an undesirable precedent.

Cumulative effect of the contentions

1. The Council also submits that the cumulative effect of the non-compliances raised in the contentions warrants refusal of the application. The Council's main point in support of this submission was that a better outcome for the site would be a 5-storey building with a roof terrace, which is supported by the evidence of Mr Barwick. The Council submits that the Gejo has not established that the proposal could not be achieved in a 5-storey building.
2. That a superior design may be available on the site does not mean that what is proposed in the appeal is inappropriate or warrants refusal. I have individually considered the contentions and determined that none of them warrant refusal. I have provided reasons as to why flexibility has to be applied due to the emerging character of the locality resulting from previous decisions of the Council under the same planning controls. For the same reasons articulated above that each contention does not warrant refusal, I also find that their cumulative effect does not warrant refusal of the present proposal.

Contentions that can be resolved by condition

1. A contention was raised by the Council regarding cross-ventilation, which the parties agree can be resolved by conditions of consent requiring the installation of operable skylights in some units and plenums in other units. This condition has been provided in the conditions of consent given to the Court.
2. A contention was also raised regarding adequacy of storage space for units, which the parties agree can be resolved by conditions of consent allocating the basement storage to in the first instance those apartments that do not provide all of the required storage within the apartment.
3. A final issue that requires determination arises from the contention raised by the Council that the proposed commercial space numbered 002 is of insufficient depth and does not achieve the minimum 10m depth required by Part 3.1.7 of the CDCP. The objective relevant to that control is to ensure "[a]n appropriate level of depth is available to create viable building spaces for retail and commercial use."
4. Both parties agree that this contention can be addressed by a condition of consent amalgamating the commercial unit into a single tenancy, although Gejo would prefer to retain them as separate tenancies. There is no evidence in support of a variation to the control, other than an issue that might arise if Gejo was required to seek a modification of the condition of consent if further changes to the commercial tenancies were required. This issue also does not warrant a departure from the control, and there being no other evidence in support of a departure, I am of the view that the proposed condition amalgamating the commercial units ought to be imposed.
5. As a result of the above reasons, I am satisfied that it is appropriate to grant development consent subject to conditions.
6. The Court orders that: 1. The appeal is upheld. 2. Development consent for the demolition of existing structures, consolidation of two lots and construction of a 6-storey mixed-use development comprising two buildings with 39 apartments, a commercial ground floor tenancy, a roof terrace on the rear building, two levels of basement car parking and associated landscaping at 9-11 Weyland Street, Punchbowl (DA-632/2015) is granted subject to the conditions in Annexure A. 3. The exhibits are returned, except for exhibits 3, C, E, F, H, K, L, M and N.

Commissioner Gray Annexure A (C)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2017