Gerrale Group Investments Pty Ltd v Sutherland Shire Council

Background and the proposal

1. The application was lodged with the Council on 30 April 2019 and has not been determined. The applicant was granted leave to rely on amended plans and documents. It is those plans that are now before the Court.
2. The proposed development involves construction of a nine storey RFB over four levels of basement parking. The proposed basement area would be excavated to all boundaries of the site. A total of 50 car spaces, 2 motorcycle and 6 bicycle spaces would be provided within the four basement levels.
3. All parking spaces would be accessed off Surf Lane. A ramp would provide a 7.8m long standing area within the boundaries of the site to await access through a roller shutter door. Once inside the ground floor area vehicles would be required to enter one of two car lifts which provide access to the four parking levels. A waiting area is provided to the east of the car lifts in the event that both are occupied. The Council contends that there is inadequate manoeuvring area available and there will be queueing onto Surf Lane at peak times. This issue is discussed later in the Judgment.
4. Pedestrian access to the site is available from both Surf Lane and Gerrale Street with ramps connecting the streets to the lift lobby that is centrally located within the building on its southern side. A two bedroom apartment with elevated terrace would also be located on ground level at the front northern side of the building.
5. Levels 2 and 3 comprise similar floor plans each containing 2 x 2 bedroom and x 3 bedroom units. The balconies to the level 2 units extend closer towards Gerrale Street than those on the third level.
6. Level 4 comprises a large area of communal open space at the western end of the building and three apartments, a 1, 2 and 3 bedroom unit. The footprint of the building is reduced at this point with greater setbacks provided to the west.
7. Levels 5-8 have identical floorplans and comprise 2 x 2 bedroom and 1 x 3 bedroom apartments.
8. The top floor, level 9 contains 2 x 3 bedroom apartments.
9. Each unit has access to either a courtyard or balcony area.
10. The setback of the glass line to the ground floor unit to Gerrale Street is 9.55m with the courtyard wall extending to within 3.985m. The area forward of the courtyard and along the southern side of the entry path would be garden area. Setbacks reduce to level 2 with the balconies constructed to within 7.385m of the street. A greater setback of 9.6m is provided at level 3 and 10.235m at level 4 and above.
11. A splay is introduced to the south eastern corner to assist in providing a view line from some parts of the Ballantyne building. That splay continues to be the leading edge of the building up to level 9 where a further setback is provided. The splay line is indicated to reflect the 11am mid-winter line of sun. The balconies on the upper levels of the building are setback around 10.22m.
12. A 1m setback is provided to the northern boundary with small cut out areas designed to provide light and ventilation to the units. A slightly greater setback is provided to the eastern level 9 apartment.
13. Due to the angle of the southern boundary varying setbacks are provided however the majority of the building is built to within 1m of the boundary. Again, cut outs are used for light and ventilation.
14. The level 2 units are cantilevered over the driveway and pedestrian ramps with the balconies setback 0.97m at the southern end of the building and 1.78m to the north from Surf Lane. The common open space area is constructed above those units. The setback of the units from the Surf Lane boundary increases to 15.035m above that level.
15. The Council's Design Review Forum Panel has considered the application and did not support the proposal. The following are some of the comments made: "It is considered the proposal is an over development of the site. On a site of significantly narrower than the nominated DCP minimum width of 20m, and given its close proximity to the adjacent building to the north, the proposal does not achieve built form coherence in the streetscape, acceptable building separation, or satisfactory resolution of the adverse impacts of its bulk and scale. The Panel believes a reduction in the envelope, both in plan and elevation, is necessary. A reduction in height of 2 storeys, together with a much wider north facing recess, should be the starting point for consideration and testing. The height reduction might be distributed unevenly; the eastern side of the building could be reduced by 3 storeys and the western side by 1 storey, thereby articulating two discrete building elements of different heights, each facing their respective street frontages, and each set at a reasonable height in the streetscape. The Panel is not convinced that the proposed continuous ribbons of translucent glass are appropriate both from a character as well as a functional viewpoint. If the horizontal articulation is retained, solid infill material could be introduced to increase the functionality of interior spaces and provide variation in the building expression. The Panel does not support the proposal in its current form, and recommends that revisions to the proposal be undertaken to respond to the issues noted above. In the Panel's view, an appropriate built outcome will require an appreciable reduction in the proposed building envelope and FSR for the site."

The planning controls

1. The site is zoned B3 Commercial Core pursuant to the provisions of Sutherland Shire Local Environmental Plan 2015 (LEP).
2. Clause 2.3(2) of the LEP requires the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B3 zone are: • To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. • To encourage appropriate employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To strengthen the viability of existing commercial centres through increased economic activity, employment and resident population. • To create an attractive, vibrant and safe public domain with a high standard of urban design and public amenity. • To enhance commercial centres by encouraging incidental public domain areas that have a community focus and facilitate interaction, outdoor eating or landscaping. • To provide for pedestrian-friendly and safe shopping designed to cater for the needs of all ages and abilities.
3. The construction of a RFB is not a use prohibited in the zone and is therefore, permitted with consent.
4. Part 4 of the LEP contains Principal development standards. Clauses 4.3 Height of Buildings; 4.4 Floor Space Ratio (FSR) and 4.5 Calculation of Floor Space Ratio and Site Area are relevant to the contentions in the case.
5. The maximum FSR for the site is 3:1 and the maximum building height is 30m. The parties dispute the actual FSR of the proposed development. The applicant maintains it is compliant with the development standard however the Council submits it is slightly over and requires determination of a written request which seeks variation of that standard pursuant to the provisions of cl 4.6 of the LEP. This matter is addressed later in the Judgment.
6. Clause 6.2 of the LEP requires development consent for earthworks and as substantial excavation of the site is proposed the terms of this clause are relevant to determination of the application. The clause is in the following form: (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless - (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. (3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
7. Clause 6.4 Stormwater management includes a precondition to consent and is in the following form: (1) The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters. (2) This clause applies to all land in - (a) residential, business and industrial zones, and (b) Zone E3 Environmental Management and Zone E4 Environmental Living. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
8. Clause 6.16 Urban design - general is in the following form: (1) In deciding whether to grant development consent for any development, the consent authority must consider the following - (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to - (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
9. Further consideration of urban design is required under clause 6.17 as follows: 6.17 Urban design - residential accommodation In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following - (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, (g) any opportunities for the provision of affordable housing.
10. Monro Park, bus shelter, gate posts and monument and Cronulla Beach and Cronulla Park are items of Environmental Heritage. The council does not raise any contention in relation to heritage impacts.
11. Sutherland Shire Development Control Plan 2015 (DCP) is a relevant consideration with Chapter 19 B3 Commercial Core Cronulla, Chapter 36 Vehicular Access Traffic Parking and Bicycles, Chapter 38 Stormwater and Groundwater Management, Chapter 39 Natural Resource Management, are particularly relevant to the contentions in the case.
12. The Introduction to B3 includes the following statement relevant to the contentions in the case:- "This part of the DCP provides the site specific planning requirements for development within the area of Cronulla zoned B3 Commercial Core. Most redevelopment in Cronulla is expected to be mixed use development, usually a combination of commercial uses and shops on the ground floor, commercial use on the second floor, with residential flats above. The residential flat component of any development should be designed in accordance with SEPP 65 and the Apartment Design Guide 2015 (ADG)."
13. The relevant aims are: "1. Encourage redevelopment of older buildings in Cronulla Centre while maintaining adequate solar access to public places and existing dwellings, protecting heritage items, and retaining the relaxed beachside ambience and amenity of the centre. 2. Balance the need to protect the amenity of existing and future residents with the economic requirement to encourage business and tourism in Cronulla. 6. Improve the appearance and amenity of the centre with strengthened street tree planting and improvements to landscaping. 7. Provide the needs of older people through more accessible housing, improved civic spaces, and good accessibility to shops, businesses and public transport. 8. Encourage high quality architectural design in development that is appropriate to the scale and character of the different areas of the centre. 9. Facilitate a sensible transition between new developments and heritage items in order to give them prominence in the centre and ensure their long term protection."
14. Those sections of the DCP relevant to the contentions in the case follow.
15. Section 2 is the Centre Strategy and those sections relevant to the contentions are as follows: "Cronulla is one of Sydney's iconic seaside suburbs and is important both as a commercial centre and a tourist destination. Cronulla Centre is a vibrant and attractive mixed-use centre characterised by its relaxed beachside atmosphere, landscaped public domain and beautiful natural environment. Cronulla Centre's proximity to waterways and natural areas of high environmental and scenic value make it a popular place to both live and visit… Cronulla is the area of highest residential density within Sutherland Shire and it is Sydney's only beachside suburb which is accessible by rail. The focus of the strategy for Cronulla Centre is to enhance the vitality of the centre and provide improvements to pedestrian amenity. The centre will provide a mix of housing, retail and commercial development, tourism facilities and community services. Redevelopment can deliver better quality commercial floor space along with residential units offering a high standard of amenity. More Shire residents want to live in Cronulla to enjoy its amenities. More quality units will meet some of this unmet demand while providing more customers for local businesses. Ground floor shops and cafes will further enliven the pedestrian environment, and improved landscaping will enhance the pedestrian experience of the centre. The strategy also seeks to improve the pedestrian movement between the railway station and the beach. Parking for residents and workers is required to be provided in underground car parks. For developments to be feasible at the permissible height and FSR it will be necessary for some sites to be amalgamated. Amalgamation will partly be dictated by the practicality of a car park plan and providing convenient and safe vehicular access to on-site parking. A key consideration when determining the appropriate building form for a site is assessing the likely impact on the public domain. It is of key importance to maintain a high standard of solar access for public areas of Cronulla centre if it is to be a pleasant place for pedestrians. This is particularly important for those footpaths and shopfronts where cafes and outdoor eating areas are located or planned. Cafes and restaurants add to the atmosphere and amenity of the centre, and solar access is critical in making a space inviting, particularly in winter. Building forms should also allow reasonable solar access to surrounding sites so that future redevelopment will also be able to achieve quality outcomes for commercial and residential uses… In secondary areas, it is anticipated that ground floor uses will include cafes and restaurants, some with outdoor eating areas, with residential units above. The unique beachside setting of Cronulla Centre makes it a valuable location, especially for prestige residential flat buildings. To address strong demand, the plan seeks to increase the centre's redevelopment potential for residential units. New development has the potential to produce improvements to the built forms and public spaces of the centre, and to create a more active and modern commercial centre. However, it is important to retain the relaxed ambience of Cronulla and the pedestrian scale and amenity of Cronulla Mall. The strategy is to balance increased development with protection of the scenic, environmental and heritage values of Cronulla… Surf Lane can also become an attractive street in its own right if new development provides attractive, active elements towards the lane. Redevelopment of properties should deliver large trees, landscaping and footpaths to Surf Lane to help to improve the environment for pedestrians and the amenity of existing and future residents."
16. Part 4 deals with Streetscape and Built Form as follows: "Streetscape is the urban environment created by the relationship of built elements to the public domain. In the Sutherland Shire, the relationship of the built form to the natural environment, particularly along the waterways is an important consideration. The quality and scale of architecture, landscape elements, natural elements and works in the public domain determine the streetscape character. How carefully ancillary elements of development are resolved such as vehicle entrances or garbage storage, can also be critical to the quality of the streetscape. To make a positive contribution to the streetscape and maintain solar access to surrounding areas, new development needs to reinforce the scale and character of existing buildings and landscape elements. Facades are the external face of buildings and make a very important contribution to the streetscape. The composition and detailing of the building façade has an impact on its apparent scale as well as its appearance. The pattern or rhythm established by the proportions of the facade, the modulation of the external walls, the design of façade elements, their materials and detailing are all important considerations. Some of the distinct character and sense of a place arises from the remaining original buildings. The heritage of an area largely determines the streetscape character. In order to maintain the existing fabric of an area, new development needs to complement existing heritage items by making these prominent items and emphasising their place in the streetscape. Architectural quality contributes to the character and quality of the streetscape. High architectural quality requires appropriate composition of building elements, textures, materials and colours and reflects the use, internal design and structure of a development…"
17. The objectives of the section are: "1. Ensure sites are of sufficient size to accommodate well designed development. 2. Ensure new development has regard to the future development of adjacent land and respects the form and scale of heritage items. 3. Achieve quality architecture in new development through appropriate composition and articulation of building elements, textures, materials and colours that respond to the building's use and locality. 4. Achieve development that is of an appropriate scale and context for the street and locality, which makes a positive contribution to the streetscape and the amenity of the centre. 5. Protect the high standard of solar access currently enjoyed by pedestrians in the Cronulla Mall. 6. Ensure sufficient solar access for occupants of existing and future adjacent residential buildings, adjoining development and public open space. 7. Create opportunities for incidental open spaces and public domain. 8. Create entrances which provide a desirable and safe identity for the development and which assist in visitor orientation and minimise potential conflicts between pedestrians and vehicles. 9. Establish a barrier free environment for all people who live, work and visit Sutherland Shire. 10. Create sensitive transitional relationships to surrounding heritage items. 11. Improve the visual amenity of the public domain."
18. A map on page 12 of the section identified sites with development potential and details building height, landscape and established built form. The site and the existing RFB to the north of Watermark and on the corner of Beach Park Avenue is hatched. The key states that building height shown only on these sites detailed analysis required. Part 4.2 includes a series of design guidelines. Those relevant to the site are: "… 5. Development must be designed and sited so that it addresses the street and must have a clearly identifiable entry.7. Development should acknowledge the established rhythm and scale of existing shopfronts/ small lot subdivisions in vertical facade proportions. 8. The building form must be articulated to avoid large expanses of unbroken wall, and to visually reduce bulk. 9. Where development has two or more road frontages, vehicular access shall be from the lowest order road. Vehicular access is to be from a rear lane where such is provided. 10. Highly reflective materials are not acceptable for roof or wall cladding. 11. Where a basement car park extends above the natural ground level, it is to be designed to ensure that podiums and vehicular entries do not dominate the overall design of the building or streetscape. Basements and podiums are to be integrated into the architectural design of the building. Driveway walls adjacent to the entrance of a basement car park are to be treated so that the appearance is consistent with the external finish of the building."
19. Part 6 addresses Site requirements and Amalgamation of allotments. As the site is bound by existing RFBs the DCP does not anticipate that any amalgamation will occur however it does include the following relevant objective: ensure that efficient and safe car park and vehicle entry points can be achieved.
20. There are a number of controls however these relate to amalgamation patterns. The council contends that the following control is relevant to the application: "… 2. Lots must be of sufficient width to accommodate development. A site of minimum width of 20m is appropriate for larger scale centre development. Where development of a narrower site is proposed, the development must: a. provide for required parking on the site, usually in an underground car park, that allows for vehicles to leave in a forward direction; b. provide appropriate access and servicing facilities, loading, storage and waste management areas; c. respond to the local context. Development sites with site frontage width less than 20m may not allow for the full FSR to be realised."
21. The Council does not contend the site should be amalgamated, nor does it suggest that it should not be redeveloped. It does submit that because it is a narrow site it is constrained and it may not be possible to achieve the full FSR and respond to the local context as foreshadowed in the DCP.
22. Part 8 Street Setbacks designate a setback to Gerrale Street and Surf Lane for the building's first and second floors of 4m and 6m for upper floors to both. The proposed setbacks exceed these controls.
23. Part 9 applies to Side and Rear Setback. The introduction to the clause states: "Side and rear setbacks, either onto lanes or adjacent to established residential dwelling, are required to protect the amenity of new and existing dwellings…"
24. The following objectives apply: "1. Reinforce the desired spatial character of an area in terms of openness and density. 2. Mitigate the visual intrusion of building bulk on neighbouring properties."
25. The applicable controls are: "1. Unless specifically identified in the Cronulla Potential Built Form Plan, Cronulla 'Specific Site' guidelines, or a clause, a nil setback to side and rear boundaries is permitted. However, where new development adjoins or is across the road from a residential zone, open space or school where it is likely to remain as a standalone building, side and rear setbacks will be assessed on merit, having regard to the impacts on residential amenity of both the neighbouring buildings and the future residents of the proposed building, and the design quality of the building. A setback and or a reduction in the height and scale will be necessary to achieve acceptable transition in building forms where amenity would be unreasonably compromised by a nil setback and a blank façade. Applications will be assessed depending on the specific context of the site. The early presentation of a design to the Design Review Forum is recommended in such circumstances. 2. Where an active street frontage is required on the Active Street Front Map, nil boundary setbacks are required for all ground floor uses to allow for the provision of continuous awnings over public footpaths. 3. Building separation for residential uses should be in accordance with SEPP 65 and the Apartment Design Guide."
26. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG) applies to the proposal and are also relevant to the contentions.

The issues

1. The contentions in the case are detailed in the Amended Statement of Facts and Contentions, Exhibit 6.
2. The contentions are as follows: 1. Excessive floor space given the constraints of the site; 2. Narrow site, being significantly less than the minimum lot width required for a RFB under the DCP (20m); 3. Unacceptable design and built form; 4. The proposal fails to respond to the local context and neighbourhood character and is not of the desired future character for the locality; 5. Unacceptable apartment design and residential amenity; 6. View loss; 7. Insufficient security measures to secure ground floor vehicular access; 8. Inadequate landscaping; 9. Inappropriate vehicle access, parking and manoeuvrability; 10. Unacceptable stormwater design; 11. Matters raised in public submissions.
3. The contention regarding inadequate information was addressed in part through the provision of additional information during the hearing. Matters relating to the Building Code of Australia were not addressed.
4. Stormwater has been addressed through agreed conditions of consent, Exhibit 7.

The evidence

1. The hearing commenced on site with evidence heard from a number of objectors to the application. The site view included observation of the proposal from two adjoining properties, No 75 Gerrale Street, also referred to as Watermark and No 83 Gerrale Street, also referred to as Ballantyne.
2. The issues raised by the objectors is summarised as follows: 1. Excessive building bulk, scale and density for such a small site; 2. View loss; 3. Adverse amenity impacts due to the small side boundary setback, overshadowing, height, location of common open space area, and loss of solar access and privacy to pool; 4. Poor visual appearance when viewed from Surf Lane; 5. Traffic congestion in Surf Lane; 6. Excessive basement area, concerned at lack of information in relation to geotechnical conditions; likely impacts to adjoining premises through extent of excavation; 7. Overdevelopment of the site;
3. Expert evidence was heard from: Applicant Council Traffic Mr T Steal Mr M Mahmud Planning M J Mead Ms D Laidlaw Urban Design Mr F Stanisic Mr D Jarvis Landscape Architect Mr G Sturt

1. The planning and urban design experts joint conferenced and prepared a joint report, Exhibit 4. That report referenced plans, referred to as the CN plans. Those plans were prepared by the applicant in an attempt to clarify the FSR of the proposal to address doubt in regard to the treatment of the building's side facades, delete a bedroom from units 202 and 302 and modify the layout of those units, add a glass brick wall adjacent to the larger western cut out area, to address privacy from the adjoining units to the north, alters the screen to the gallery area which runs along the southern face of the building and provides an open access from the units to the lift, adds awning windows to the northern wall for ventilation, deletes other windows and changes glazing type and amends the garbage chute design.
2. The applicant sought leave to rely on some of these plans however did not have a full set of consistent drawings to tender to the Court, nor did the Council's experts have time to consider whether the plans that weren't included in the Expert Report, presented other issues that had not been raised in the contentions. For that reason, leave was not granted.

Floor Space Ratio

1. The parties did not agree whether the FSR of the development was compliant. Even if it were, the Council's experts submit that the screens required to address privacy along the gallery and to screen the waste storage area, added to the bulk of the building to such an extent that it was unacceptable.
2. Gross floor area (GFA) is defined in the Dictionary to the LEP as follows: 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.
3. The CN plans did assist in reducing the areas that were in dispute however also added new issues.
4. In relation to the FSR of the building, it is agreed that the "Base FSR" excluding those areas in dispute is 2,736m² or 2.977:1.
5. There were four areas in dispute. Three of these are shown on a plan in Exhibit 4 and are referred to as Areas A, B and C. The fourth area is Area D, the waste chute. The plans before the Court show the latter as an elongated area adjacent to the lift well whereas the CN plans divide the area into two spaces, one that accommodates the chute and the other described by Mr Stanisic as a ventilation duct. Mr Mead says that it is a chute with a void behind where air is mechanically ducted to exhaust fumes to the roof. The device is therefore exclusively for mechanical services or ducting and also constitutes a void. It has no floor and therefore is not included as GFA. Ms Laidlaw says the area forms part of the garbage management system and because the areas are not within a basement, they are included as floor space.
6. Area A is the waste holding area and bulky goods storage area and has an area of 34.3m² including access to the area. The plans show the area enclosed by a 1.4m high wall. The elevations and plans show a full height screen extending from the base of the wall to the underside of the upper floor slab and described in the key as LV2, Aluminium 'Timber Look' Batten Screen, Powder coat finish, Spotted Gum. The plans do not detail the batten size or spacing and the experts speculated as to the likely batten width and spacing. All agreed the area required screening. Ms Laidlaw says the screen is a wall and therefore the area constitutes GFA.
7. Mr Mead says the area should be excluded because it has walls that are no greater than 1.4m in height (in the nature of a balcony or terrace) and is otherwise open to the elements. A condition could be imposed that screening be 1.39m, if that aspect of the definition is of concern and says because the area is for temporary storage of bins on collection day it does not need to be solidly enclosed above 1.4m in height. The part above 1.4m is treated with open screening and is not a wall, rather an open screen which exposes the area behind to the elements of weather. The degree of screening achieves a balance between the area being open but not visually screened.
8. Area B is no longer in dispute as the experts agree it is part of the corridor at ground floor level between the fire stair and egress and therefore part of the vertical circulation system.
9. Area C is that part of the corridor that provides a pedestrian only connection between the area outside of and within the garage roller shutter door. It has an area of 8.5m².
10. Mr Mead says the area should be excluded as it satisfies the exclusion of carparking to meet any requirements of the consent authority (including access to that car parking). The primary purpose of the access passage is to enable pedestrians to access the car parking area with out relying on the roller shutter to be opened and closed.
11. Ms Laidlaw says the area is within the internal face of the external walls and does not meet any of the exclusions. The primary purpose of the passageway appears to be to provide ramped access between the garbage storage area and the garbage holding area in which case it must be included. It does not give any obvious access to the parking area (noting that vehicular access is via the car lift and pedestrian access is via the lift in the main lobby).

Narrow site

1. The experts agree that the DCP and LEP does not provide any minimum lot size or width requirement for RFB developments and the site is not able to be amalgamated. All agree that the site is capable of being redeveloped for a larger scale RFB however they do not agree with the form it should take. The planning experts have regard to the planning principle for small and narrow sites in CSA Architects v Randwick City Council [2004] NSWLEC 179 (CSA Architects), Mr Mead saying it may be relevant and Ms Laidlaw saying it is. Mr Mead interprets the principle generally overlaps the tests in cl 6.2(2) of the LEP and the matters are deal with the planning controls that apply. There are no minimum landscaped area controls in the DCP and therefore no non-compliance.
2. There is disagreement as to whether or not the proposed development responds to the local context in the manner required under cl 6.2(c) of the DCP, if the design is acceptable with regard to internal and external amenity considerations having regard to the narrow setbacks provided, if the treatment of elevations and the configuration of the floorplans, including matters dictated by the constraints of the narrow width of the site are acceptable and whether the setbacks are compliant with the DCP and ADG.
3. Mr Mead says because cl 6.2 of the DCP contains provisions regarding narrow lots the planning principle in CSA Architects need not be rigidly applied. In defining the "local context" he says the most weight would be given to the street block of Laycock Avenue to Surf Road (to Cronulla Street in the west). The Cecil Apartments to the north-east (northern edge of the park) and RSL site to the south-east also form part of that local context and it could also be said that the site forms part of the commercial core of Cronulla and the "local context" extends further to encompass that commercial core.
4. The current planning controls are recent and the immediate context of the site has not changed since their establishment, Mr Mead says the new controls encourage a major uplift in height and consequently density as demonstrated by more recent approvals such as Wavelength. For that reason, weight should be placed on desired future context articulated in the controls. Clause 9.2(1) anticipates nil setbacks to side boundaries, however, if development is considered likely to "remain as a standalone building" (being opposite open space) setbacks are to be assessed on merit and having regard to the "specific context of the site". There is an inconsistency in the DCP as Clause 9.2(3) says that building separation for residential uses should be in accordance with SEPP 65 and the ADG. He places more weight on the first provision.
5. Mr Mead says the proposal is a design entirely premised on a thorough understanding of local context as required by the DCP and in terms of built form context it also meets the objectives of Part 3F of the ADG if not numeric controls. He provides his reasons at [2.25] of the Joint Report, Exhibit 4. In summary he says the development maintains view corridors, reduces height and mass adjacent to the park, maintains solar access to the south, adopts a relatively low site coverage for the tower element, provides greater front setbacks to retain views, massing responds to local context, provides high levels of amenity for occupants and protects amenity to adjoining properties, provides appropriate side boundary setbacks in regard to adjoining development, the northern and southern walls of the proposal are essentially 'blank walls' on the basis that they are constructed with translucent laminated glass and they do not include any fully openable windows or balcony openings, there are no instances of unacceptable overlooking to adjoining properties, main living areas are oriented to the front and rear with side elevations designed to use a mix of treated glass that will not allow viewing through it, orientation of openable windows is to the indents in the façade and the gallery access and circulation areas are screened.
6. The building complies with the LEP height and FSR standards, meets the setback requirements under the DCP which require a merit assessment and Mr Mead concludes the proposal will not be out of place in its context. He says the massing of the development is predicated on minimising impacts on adjoining properties and the local context.
7. Ms Laidlaw says that the site width does not permit for development at the density sought that responds acceptably to the local context. Even if the Court found the FSR was compliant, which she says it isn't, there are elements, such as the screened waste storage area and gallery area that add to the effective bulk and scale of the development. In her opinion, the planning principles in CSA Architects apply because there is no policy that requires a minimum 20m site width. The DCP adopts setbacks in the ADG and the objectives of the setback controls are to reinforce the desired spatial character of an area in terms of openness and density, and mitigate the visual intrusion of building bulk on neighbouring properties. The narrow width of the site requires a particular focus on issues of context/streetscape and residential amenity and not just privacy.
8. Her consideration of the context of the site is that of the Cronulla Centre and within a strip (Gerrale Street) undergoing transition. Within the centre, and along the stretch of Gerrale Street, there are various building typologies associated with developments, (existing and approved) that include both commercial and residential use, including older style three/four storey RFBs, mixed use tower and podium buildings, free standing towers and shop top housing. Where tower forms exist, or are foreshadowed elsewhere in the street, the tower element is setback from the residential boundaries of the site and/or podium below. Where residential occurs (or is likely to occur), in a long strip (or street wall) form such as commonly seen in shop top housing, then a nil side setback is often suitable however this is not representative of the context of the subject site which is not part of the commercial strip but rather bounded by established RFBs that are unlikely to be redeveloped in the foreseeable future.
9. Ms Laidlaw describes the development as a hybrid tower/podium form although with the podium element only evident to the west and east and being more pronounced on the western Surf Lane side. To the north and south are high vertical walls without any obvious podium base whereas on the east the siting and form generally reflects the front and side setback of Watermark at the lower levels however emerging from this base is not the stepped mid-rise form but a tower form that has a parapet at a height around 2m higher than Ballantyne. As development cannot be built to the neighbouring buildings, she says it needs to be a free-standing form in which case the DCP and ADG requirements are that it be setback from the side boundaries. The 1m setback proposed however is non-compliant with the setback required even for low to medium rise development and is more commonly associated with dwelling houses. The insertion of such a tall form into this narrow space without the benefit of the spatial distinction usually associated with tower forms is incongruous in its context.
10. In her opinion, development on the site should take its cues from the fact that buildings in the streetscape that provide narrow setbacks tend to be more modest in height, (4-6 storeys). In contrast, she says the development is seeking a building height that is actually greater than the free-standing tower to the south without the generous setbacks that provide the appropriate setting for that form. It will appear out of place, with the built form proportions being out of kilter with the proportions of its spatial setting, in a manner inconsistent with SEPP 65 principles that seek to enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood….achieve an appropriate built form for the site in terms of building alignments, proportions, building type, articulation and the manipulation of building elements (Principle 2) and achieve a built form that has good proportions and a balanced composition of elements (Principle 9).
11. Ms Laidlaw raises amenity as an issue associated with the site width, and is concerned with the unsympathetic impact of the building in terms of its visual bulk and massing, due to the substantially unarticulated form above level 3 (broken by one small indent on either side), proximity of the building to its side boundaries and the failure to provide sufficient setback/spatial separation.
12. Having regard to the views from Ballantyne this impact is unacceptable and unreasonable, in regard to Watermark, the height of the development and its proximity to the boundary, contribute to a dark and oppressive environment between buildings.
13. Assessing the images used in the View Analysis (Exhibit B) Ms Laidlaw says views of the ocean/foreshore are removed and replaced by the southern wall of the proposed building, as well as those from whom a pleasant outlook is replaced by a high wall close to the boundary.
14. Whilst Ms Laidlaw agrees that external privacy impacts are able to be managed with conditions relating to screening of lobbies and the communal open space, her greater concern is the internal amenity consequences arising from the steps taken to 'blank out' the northern and southern elevations, using obscure, opaque glazed walls and the use of only limited openable windows on these elevations. In terms of the amenity to the centrally located rooms, that, as a consequence, depend on lightwells of small dimension for light and air.
15. She concludes the development is inconsistent with the guidance of the DCP and does not satisfactorily respond to the unavoidable constraint of a narrow site width. The proposed tall, narrow form is contextually inappropriate, will present an incongruous outcome proportional to its available spatial setting and presents more significant impact on amenity as a consequence, resulting in unsatisfactory internal planning relationships as well.
16. Mr Jarvis says the emerging context of the street consists of residential towers with reasonable generous setbacks from side boundaries, creating a street of clearly defined towers/buildings within the street. In terms of height the building would be comparable to the newer Wavelength and Breeze developments and the older Ballantyne and Belgrave, all of these buildings having minimum setbacks ranging between 6 and 9m consistent with the objectives of the ADG.
17. He provides a series of diagrams from the ADG which demonstrate his concerns regarding the inadequacy of setbacks for habitable and non-habitable rooms.
18. He does not agree that the northern elevation is a blank wall and says it has openings required for ventilation and glass required for solar access. It could not be located with a nil set back as a blank wall could. Watermark is also not a blank wall, it has openings to both habitable and non-habitable rooms. Where blank walls are located at nil setbacks there are no amenity impacts, however, he says the proximity of these building causes adverse impacts to natural ventilation, acoustic privacy, visual intrusion and solar access. Increased setbacks and further articulation of the proposal's interface is required to meet the objectives of the ADG, provide a reasonable level of amenity to the proposed building and northern neighbour and a more appropriate response to the emerging streetscape.

Design and built form

1. The experts agree the development is below the applicable height standard and height in isolation of other factors, is not the principle concern with the development. It is also agreed that a detailed site analysis, as required by the DCP, has been undertaken however they do not agree with the conclusions reached. They also agree that 'transition' in the context that this refers to the broad scale urban design/built form policy is not the primary issue in the contention.
2. Mr Mead says the proposal responds to the constraints and nature of the site and takes on a different typology to Ballantyne because its site size, shape, configuration and street address are vastly different. In regard to Watermark, he says that building was developed approximately 15-20 years ago under a different planning regime and its ziggurat approach to height should not be replicated. He agrees the proposal should fit contextually but does not consider it needs to replicate the adjoining building forms, nor do the controls require that.
3. The proposal meets the current height and FSR controls which were determined when the LEP and DCP were prepared with consideration of the precincts rather than a broad-brush approach. There are no demonstrated adverse impacts relating to the height or FSR of the building.
4. The DCP foreshadowed a detailed analysis of the site, employing a merit approach, rather than more prescriptive controls that it applied to other sites. Whilst the siting and proportions of the building differ from the adjoining buildings, it is evident that the locality comprises a wide mix of siting, setbacks, height and architectural forms. He says the proposal is compatible with this pattern and context as required by Clause 6.16 of the DCP.
5. Mr Stanisic cites the Urban Design Analysis lodged the application which he says reveals the proposed building height and form to be consistent with existing and recently approved buildings in the context. The DCP permits 9-10 storeys subject to a detailed analysis. Ballantyne is currently the tallest building in the block and a new development, Wavelength, will be a 9 storey mixed-use RFB that exceeds the 30m maximum height.
6. No reduction in height and scale is provided as he says the siting of the proposed development does not compromise visual privacy, solar access or view of the adjacent buildings as required with the ADG.
7. The side setbacks of 1-4m with recesses of 4-7m breakdown the bulk and mass of the tower form. Non-fire rated, double glazed windows for enhanced thermal insulation and solar control are used alongside double glazed openable awning windows for natural and cross ventilation on the northern and southern facing elevations. The side elevations combine visual privacy to neighbouring buildings and transparency and outlook as appropriate.
8. He says the proposed hybrid built form of a tower and low-rise elements is appropriate to the site, streetscape and context allowing outlook from apartments to Cronulla Beach and Gunnamatta Bay, and a fine grain 2-3 storey streetscape on frontage to both Gerrale Street and Surf Lane. The trapezoid tower plan is generated by angled horizonal sun access parameters to ensure solar access as well as view sharing to Ballantyne.
9. Mr Stanisic considers the proposal to be modest when compared to Ballantyne and Wavelength with only three and four apartments per floor when the ADG limits this to 8 and having a smaller tower footprint. There is a transition to the open space by the increased street setbacks, especially for the tower form. He concludes the maximum FSR and building height respond to the immediate context and can be achieved without significant adverse impacts on adjacent properties.
10. Ms Laidlaw says the proportions of the free standing building relative to its narrow setbacks and confined spatial setting are inappropriate to building type and context. If narrower side setbacks are to be accepted, then a lower building height, closer to that of Watermark should be adopted as contextually more appropriate than the current built form which seeks ( and in fact exceeds) Ballantyne's height whilst providing only the narrow setbacks of Watermark.
11. The problem is not that of height per se, but that of height on a site that is of inadequate dimensions to achieve a contextually appropriate built form. The site cannot achieve an outcome that is reflective of Ballantyne because there isn't the width and space available. She agrees with Mr Jarvis that the nil setback control in the DCP is irrelevant as it does not contemplate windows.

Urban Design

1. There is no agreement on any of the particulars relating to this contention. Mr Stanisic reiterates many of the above comments. He says the visual and acoustic privacy to Ballantyne is assured due to the substantial building separation consistent with the ADG and to Watermark by skilful design of the north elevation. Natural light to bedrooms is provided by windows that face onto a 4.75m deep recess to avoid visual and acoustic impacts on residents of the adjacent building. He says the building is carefully crafted, contemporary and connected. His description of the merits of the design is found in [4.8]-[4.12] of Exhibit 4.
2. Mr Jarvis says the side setback should enforce a rhythm of spaces between buildings that define the character of the street. The current proposal is not responding appropriate to the local context, as it is not consistent with the emerging character of the street, which is of taller buildings with more generous side setbacks. Providing view between buildings and accommodating landscaping to soften the transition between neighbouring buildings. He is critical of the expanse of blank walls, lack of articulation and reliance on translucent and opaque glass.

Apartment Design and Residential Amenity.

1. There are a number of particulars associated with this contention, No 5 in Exhibit 6.
2. The experts agree on some minor issues detailed in [5.1] to [5.4] of the joint report, Exhibit 4. It is also agreed that the Communal Open space area receives the required solar access. There is no agreement whether the proposal is acceptable to the requirements of the ADG, Mr Stanisic says it is and Mr Jarvis says it is not.
3. In cross examination, the experts agreed that the development did not meet the design criteria for solar and daylight access. 14 (or 15 with the installation of a skylight to unit 301), of the units meet the criteria which represents 57.7% whereas 70% is required.
4. Mr Stanisic defended the solar access diagrams, however, did admit that there were some discrepancies that could be addressed through further amendments to the plans.
5. He says the proposal has been carefully designed to ensure a high level of amenity to future residents on the site in terms of solar access, cross ventilation and privacy, as well as to adjacent properties by incorporating a number of measures to maximise privacy while allowing natural light to the apartments, particularly to the northern elevation. The northern side boundary wall is predominantly glazed brick spandrels and ribbons of clear, translucent and opaque glazing and does not require any separation from the adjacent site.
6. Natural light to bedrooms, where required, is provided by windows which face onto a 4.75m deep recess to avoid visual and aural impacts on residents in the adjacent building. He says the setback to Watermark is a minimum 1m, however, the majority of the building has separation distance of 2m and this extends up to 4.11m for parts of the building. Noting that building is unlikely to redevelop he says that above 6 storeys, there are no separation issues. It is that level that the glazing in the northern elevation changes to clear glass.
7. Noting the proposal does not comply with the building separation distances contained in the ADG, Mr Stanisic says the northern and southern external walls of the proposal are essentially 'blank walls' for the reasons he stated above and therefore, consistent with Objective 3F-1 of the ADG, no separation is required. The 1m setback does not exacerbate the bulk and scale and height of the building because it complies with the height and FSR development standards and there is a pattern of reduced setbacks and similar buildings of bulk and scale prevalent in the locality and is typical of a higher density urban environment.
8. Mr Stanisic says the proposal preforms acceptably in relation to ventilation and visual privacy however says this could be further addressed through further amendments to the plans as shown on the "CN plans" included in Exhibit 4. Those amendments are detailed in [5.10]-[5.15].
9. The setbacks are consistent with the DCP criteria for side setbacks as there is no adverse impact upon amenity for residents and the development responds to the locality and site-specific constraints, providing adequate separation for adjoining sites without compromising the integrity of the proposal. There will be an improvement in visual privacy between the site and Watermark as the current relationship with the existing building includes opposing windows, which are a poor amenity outcome.
10. Mr Jarvis reiterates his view that the setbacks proposed are inadequate, well below those anticipated by the ADG with visual intrusion and loss of privacy upon habitable rooms of the neighbouring building with only 2m separation provided. These windows will also be adjacent to a narrow indentation within the façade of the proposed building. This indentation will contain openable bedroom windows to eight bedrooms, also raising concerns with regard to acoustic privacy.
11. Mr Jarvis is also critical of the design in terms of cross ventilation and says the proposed awning windows provide limited air flow due to the limitations imposed under the Building Code of Australia that only allow the windows to open 125mm. In his opinion, only two units or 8% of the total units meet the ADG design guideline for cross ventilation which is 60%. In addition, he says the guidelines require for the area of unobstructed window openings should be equal to at least 5% of the floor and that is not met. Another criticism is that Objective 4D-1 of the ADG is not met in units 201 and 301. That requires a window to be visible from any point within a habitable room. He says that could be remedied through redesign.
12. The indentations within the northern and southern facades are another aspect of the design that Mr Jarvis says is unsatisfactory. As well as the elevations being poorly articulated, he says the narrow, poorly proportioned indentations significantly impact the amenity of the units. He says the width to depth ratio is inadequate to provide effective air circulation as outlined in Objective 4B-2 of the ADG and the rooms serviced by there openings have no outlook, limited access to natural light and are vulnerable to privacy issues (acoustic and visual) between adjacent rooms. He says 16 of the units suffer from this amenity concern.
13. He does not support Mr Stanisic's suggested amendments as the increased number of openable awning windows on the northern façade increase the potential for acoustic privacy issues. While the proportions of the space at levels 2 and 3 has improved he says the bedrooms orientated into this space are only serviced from that space and because some are master bedrooms with translucent glass, no outlook is provided. Where clear glazing is provided to other bedrooms, no visual privacy is provided.
14. Mr Jarvis' final criticism is of the depth of the open plan units with 4 failing to meet the design criteria of Objective 4D-2 which limits room depths to a maximum of 8m.

View loss

1. The applicant relies on a view analysis prepared by Dr R Lamb and included in Exhibit B. The experts agree this assesses standing views only but say this is acceptable when assessing a vertical plane however acknowledge it does not cover all affected apartments in the adjoining buildings so required extrapolation. Additional diagrams and an updated view analysis were prepared on 21 November 2019 and included as Annexure E to Exhibit 4. The assessment considers the impact of the development on views from different units in Ballantyne and applies the four tests in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 and concludes that the extent of view loss toward the north-east from the north-west tower of Ballantyne, is reasonable. The following explains his conclusion: "The proposed development is permissible with consent on the site. The two controls most relevant to view sharing in this case appear to be height and setbacks. With regard to compliance with setback controls, it is not within my expertise to comment on the technical matter of measurement of compliance or the weight to be given to the various controls and I leave that for those with town planning expertise to address. However, the analysis carried out with regard to side and front setbacks in relation to the photomontages is relevant, as, regardless of what is claimed to be the appropriate controls or the merits of it, the proposed building, with a 12m front setback and a 1m side setback produces a better view sharing outcome than a side setback of up to 3m, at the complying front setback of 4m in the DCP, based on objectively prepared photomontages. This applies to both the living room and north balcony views. In my opinion, on the basis of what the photomontages show objectively, the extent of view loss in views toward the north-east from the north west tower is reasonable. Views directly across the side boundary toward the north-west would be severely affected from some levels of Ballantyne, however that should also be considered to be reasonable, given what is permissible under the development controls on building height. The side setback in that context is irrelevant, in that whether the setback is 1m or 3m is immaterial."
2. There is agreement that the proposal complies with the DCP controls for front setbacks however not in relation to side setbacks. The applicant's experts say this could be nil or based on a merit assessment whereas the Council's experts say the setbacks are determined applying those in Objective 3F-1 of the ADG. Ms Laidlaw noted that the assessment does not contemplate side setbacks greater than 3m and therefore further 'kinks' at 4m (where setback even for non-habitable rooms increases to 4.5m and at 6m for Level 8.
3. Mr Mead says the DCP has specific front setback requirements, 4m to the lower two levels and 6m above and, because the development provides for more generous setbacks, view loss is minimised. He agrees with the assessment and conclusion of Dr Lamb that the impact to Ballantyne would be minor, when considering the range of views to which each of them has access. The views to the north-west would be severely affected however they are not to water and would be expected by the planning controls. He does not consider it is necessary to further examine setbacks to 4.5m and look if a better outcome is achieved because that is not the control. Even if it were the text does not end with having to be equal to or better than that setback. Further, some units in Ballantyne will benefit from the increased front setback whereas others many have an incremental benefit from side setbacks. In any case, the view that would benefit from any additional setback to 4.5m (in preference to the larger front setback proposed) are affected to a minor extent by the proposal. The views are across a side boundary and those apartments enjoy unaffected views from substantial areas. He says it would be unreasonable, in light of height and FSR compliance and, based on merits, setback compliance as well as the degree of impact, to require a further setback on the basis of view loss.
4. Ms Laidlaw says that the view analysis fails to consider the greater setbacks required for upper levels and the DCP requirement for a detailed analysis of building envelopes. She says the impact on Ballantyne is caused by the south east corner to bedroom 1 of the south east corner units and is slightly elongated in form. This room should be reduced at its eastern end having regard to the side setback considerations and overall impact, that this highly valued view could be better maintained rather than replaced by a building at only one metre setback which is highly unsympathetic in its impact. The bedroom is relatively large in area and therefore the amenity of the apartment would not be materially reduced by this design amendment.
5. Mr Jarvis says the DCP requires a detailed site analysis rather than suggest development can occur in accordance with the controls. That analysis would identify that any building form should be set back to align with existing neighbouring established building forms to create a consistent streetscape. This would require a setback of approximately 7.5m. The view analysis provides a comparison with a compliant building envelope that responds to the detailed analysis requirement of the DCP. The secondary bedrooms located on the south eastern corner from level 4 upwards, have a room length between 5.7m and 6.6m (note splayed wall at eastern end). A reduction in the length of this room to provide a 3m long (ADG compliant) bedroom plus robe space, would improve both outlook from and solar access to the southern neighbour.
6. Security was a contention that the experts agreed was no longer an issue. The contention related to the safety of the 800mm x 29m long passageway along the northern side of the building. The experts agreed the security issue had been addressed through the provision of a security screen and gate.

Landscaping

1. The experts agree that there are no numeric requirements for landscaped area under the DCP.
2. Mr Mead says the proposal provides a planting scheme that will enhance each street frontage and complement the built form. The side setbacks to the building to the north provide limited area for landscaping, as is the case with other buildings on narrow sites in the locality however have been creatively utilised.
3. Ms Laidlaw says the narrow 1m setbacks to the north and south do not provide scope for any open setting nor any meaningful landscaping.
4. Mr Sturt says the development is in character with the zoning as part of the commercial core in Cronulla and in context with the other large buildings found on Gerrale Street. The proposed landscaping improves on the other building's street frontages as the landscape setback has a greater area of planting than the other buildings in the vicinity. In addition, unlike the majority of those building which have no tree planting on site the proposed setback has sufficient area to plant three medium size endemic trees (Banksia integrifolia) which reinforce the coastal character of Cronulla.
5. The design of the roof terrace provides screen planting to screen adjacent apartments both on site and adjacent neighbours. A small canopy tree has been added and a shelter to provide shade as well as privacy to both users and neighbours alike. Overlooking a roof garden is far preferable than a typical flat roof and provides mush improved amenity to hard surfaces.

Engineering

1. The engineers' Joint Report, Exhibit 5, address those contentions that relate to traffic and parking issues. It includes queueing analysis completed by each expert and a swept path testing completed by Mr Steal. Details of the proposed car lift are provided in Annexure E and F to the report.
2. The development provides a total of 50 car parking spaces. The DCP sets a minimum and maximum parking rate for RFBs in the Cronulla Commercial Core. A minimum of 1 and maximum of 2 parking spaces are required. The development would therefore require a minimum of 26 spaces with a maximum of 52.
3. These experts agree that the contentions regarding motorcycle spaces, swept path diagrams for a B85 vehicle entering and exiting the site with vehicles parked in Surf Lane and cars entering each car space are resolved. Specifications of the car lift were provided in Annexure C to the Traffic and Parking Impact Assessment, Exhibit B and further details of emergency procedures were provided as Annexure F to Exhibit 5. Whilst Mr Mahmud raises concerns about safety, breakdown and failure of the lift, the Court notes that the Council's contention only goes to the issue of specification.
4. Both experts agree that the PM peak hour is the critical hour for the purposes of queueing analysis, as this is the peak hour when the highest percentage of the traffic generation will be entering rather than departing.
5. Mr Mahmud calculates that three waiting bays will be required on-site to meet AS2890.1:2004 based on a rate of 0.28 trips per space resulting in a total traffic generation of 14 vehicle trips per hour peak however, because basement levels 3 and 4 consist of 26 car parking spaces that can generate either 8.35 trips or 14 trips during PM peak it is not appropriate to assume that 25% of these trips will be generated on each level. He says it is more appropriate to adopt a site-specific rate and he chose a site 8-12 Waratah Street, Cronulla based on the Road and Maritime Service (RMS) weighted average service time and concludes the traffic generation of 0.388 trips per space or 19.4 trips for 50 spaces during peak. That rate will still require 3 waiting bays and only one is available which he says is also required as a turning area for vehicles to access the car lift. If a service vehicle was using the waiting bay then one of the car lifts would not be accessible. He does not support Mr Steal's proposal that the additional waiting bays are provided informally within the driveway area as he says this is not practical. Surf Lane is a critical road link to access the Cronulla Town Centre for residents, visitors and delivery vehicles and for this reason Mr Mahmud says the development without the waiting bays for the car lifts is unacceptable.
6. Mr Steal does not agree with the assumptions adopted by Mr Mahmud and says the RMS figures for 8-12 Waratah Street, a site approximately 350m from the site is substantially the same in terms of context. The traffic generation rate per space for that site was recorded as 0.11 trips per unit, 0.16 per parking space of 0.029 trips per bedroom in the PM peak. The Sydney average rate per space is 0.12 trips and Sydney maximum 0.28. the site is closer in terms of walking distance to Cronulla Railway Station and also the Town Centre than the Waratah Street site. Therefore, the use of the traffic generation from that surveyed site is the most approximate that would apply. The RMS recommends a trip distribution of 80% entering and 20% leaving in the PM peak hour and this generation is generally assumed for all residential development.
7. Whilst it is unlikely to occur regularly, Mr Steal accepts that as a sensitivity test it is reasonable to utilise a 100% incoming traffic generation in concert with appropriate traffic generation and lift travel distances. He does not accept Mr Mahmud's assumption that all vehicles entering in the hour will need to travel to the bottom basement noting it contains 13 spaces and that his suggested peak rate is 14 cars.
8. Mr Steal adopts the provisions of Section 3.5 of AS2890.1:2004 which requires storage facilities for mechanical parking installations be provided for the 98th percentile queue under mean arrival rates during normal peak period and mean service rates under continuous demand determined as closely as possible from observing the operation of similar facilities. For this reason, he says Mr Mahmud's assumptions are inconsistent with the criterial and are inappropriate.
9. Notwithstanding the disagreement Mr Steal says applying Mr Mahmud's assumptions the 98th percentile queue would be 5 vehicles (two in the lifts and 3 queueing and there is sufficient space within the site to facilitate the queueing of three vehicles without affecting the function of the car lifts.
10. Mr Steal's analysis is that the 98th percentile queue would be 2 vehicles (two in the lifts, none queuing) and, noting the agreement that the PM peak hour is the critical hour for the purposes of the queueing impacts, he refutes Mr Mahmud's proposition that the site peak should be used. Whilst he would accept that during the PM commuter peak for a low-scale site that a 100% IN traffic distribution would occur, to assume the same for the site peak is unreasonable, inconsistent with the relevant Australian Standard and otherwise without basis.
11. Mr Steal says Surf Lane is an access dominant laneway and is the least critical of the three north-south roadways in this part of Cronulla, the others being Cronulla Street and Gerrale Street. In terms of transport planning, the purpose of Surf Lane is to facilitate the access and servicing requirements of the premises along Gerrale Street to remove any potential for delays from the more traffic-flow dominant Gerrale Street. He says the likelihood of 4 vehicles (6 being serviced) which extends outside of the site is extremely small (0.0021%) such that it is unlikely to occur in the life of the development. Even in the unlikely event that one of the two lifts break down temporarily, the 98th percentile queue becomes 3 vehicles and will not extend into the street. If a service vehicle does utilise the queuing bay temporarily, it would make it more difficult to enter the easternmost car lift however the westernmost would be unaffected. As servicing typically occurs outside of peak times and considering the vehicle arrival rate there is a very low chance that a car will arrive whilst the westernmost car lift is in use and the queuing bay is being temporarily used.
12. Mr Steal did admit that he had not factored into his calculations the time it would take for a security door to open however said this would be minimal and not affect his calculations.
13. There is not agreement that the applicant has demonstrated that vehicles entering and exiting the car lift can do so in a forward direction and single movement.
14. Mr Mahmud says the car lift is considered as a short term high turnover parking space. In accordance with AS2890.1 Table 1.1 for short term high turnover parking spaces, aisle width should be sufficient for single manoeuvre entry and exit. The applicant's diagrams show that multiple manoeuvres are required to access the car lift which, he says, is unacceptable and will result in overflow queuing on the road network.
15. Mr Steal notes that the issue was not included in the original Statement of Facts and Contentions, being an issued raised in the Amended Statement, Exhibit 6. He says that very significant design changes would be required to achieve the single movement. He says neither the Australian Standard or the DCP require car lifts to be entered and exited in a single manoeuvre and considers that entry or exit of the car lifts in a reverse direction, and in more than a single manoeuvre is a typical and acceptable mode of operation. His diagrams demonstrate the manoeuvres required for vehicles up to B99 and Mr Steal says all are acceptable.

Conclusion and findings

1. Floor space calculations distinguish the garbage system from my findings in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 because in this case there are no floors in the chute or duct area whereas in that case a storage area was provided on each floor. For that reason, I find that Area D is not floor space.
2. I accept Mr Mead's proposition that the screen around the garbage store is not a "wall" and therefore that area, area A does not constitute GFA. If consent were to be granted, it would be necessary to attach a condition that requires the screen to remain open and specify the batten size and spacing to ensure the area is not fully enclosed at any time.
3. I agree with Ms Laidlaw that area C is GFA and accordingly, find the GFA of the building to be 2,744m² and the FSR to be 2.988:1. Therefore the proposed building would be compliant with the building height development standard.
4. The contentions that go to the narrow site and urban design should be considered in terms of the suite of planning controls that apply. The width of the site is an obvious constraint as is the Watermark building and its proximity to the site's northern boundary.
5. The planning controls adopted in 2015 do envisage much greater height and density than applied at the time the two adjoining sites were developed. This is reflected in the objectives of the B3 zone, specifically envisaging an increased residential population.
6. The DCP also envisages redevelopment and is looking to encourage high quality architecturally design that is appropriate to the scale and character of the different areas of the centre. The Strategy envisages residential units offering a high standard of amenity - quality units - improvements to built forms and to balance increased development with the protection of the scenic, environmental and heritage values of Cronulla.
7. The objectives of the building height development standard are: (a) to ensure that the scale of buildings - (i) is compatible with adjoining development, and (ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and (iii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion, (d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves, (e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones, (f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
8. The objectives of the FSR development standard are: (a) to ensure that development is in keeping with the characteristics of the site and the local area, (b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality, (c) to control development density and intensity of land use, taking into account - (i) the environmental constraints and values of the site, and (ii) the amenity of adjoining land and the public domain, and (iii) the availability of infrastructure to service the site, and (iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and (v) the desirability of retaining the scenic, visual, and landscape qualities of the area.
9. It would be expected that a building that complied with these standards would be acceptable however, that is not always the case as the standards are maxima and must be considered in relation to all other planning controls that apply to the site.
10. In the circumstances of this case those controls are found in the LEP, DCP, SEPP65 and the ADG.
11. Having regard to those provisions as a whole and in consideration of the desired future character envisaged by those controls I do not consider the proposal merits approval. The proposal has not had adequate regard to the objectives specified in the ADG. The Design Criteria provide measurable requirements for how an objective can be met: I do not consider those objectives have been met. The proposal seeks to rely on the concept that the DCP controls provide for nil side boundary setbacks and design a building that fails to meet the objectives of the DCP and ADG.
12. It is clear that the local context is one that is undergoing transition and that built form will increase significantly. The DCP is also clear that for sites with a width of less than 20m it may not be possible to achieve the maximums envisaged for height and FSR and that a detailed design analysis of the site is required. There is no right to develop to the maximum achievable yield, the appropriate building form remains to be determined by reference to the specifics of the individual site and not simply by reference to the coarser tools of maximum height and FSR. Importantly, the local context and the guidance provided by the DCP and ADG must be considered holistically.
13. I do not agree with Mr Stanisic's conclusions of urban design site analysis, particularly that the site should be considered as being grouped as one with the Watermark to the north so that the streetscape along Gerrale Street from Laycock Avenue to Surf Road presents as a series of built forms, generally 9 to 10 storeys in height with gaps on the northern boundary for solar access. That is because Watermark is a very different built form in terms on building height, bulk, width and scale. I accept Mr Jarvis' view that the two buildings bare no relationship in terms of form or aesthetic, they are neither similar or in any way complementary. They are in two very different buildings with very minimal separation provided between them. The dark narrow space created between the two building form is inconsistent with the more generous setbacks provided between other buildings of a similar height and scale located on this portion of Gerrale Street.
14. The DCP controls, whilst providing in some cases for a nil setback, envisage setbacks that protect the amenity of new and existing dwellings. Similarly the ADG anticipates adequate building separation distances to achieve reasonable levels of external and internal visual privacy. The proximity and in particular the concentration of windows of the proposal towards the small indented areas in the northern elevation fail to achieve this requirement. This is one of a series of issues associated with the design of the building that result in a poor level of amenity, particularly to future residents of the development but also affecting the enjoyment of the residents of the Watermark development.
15. There are no 9 storey RFBs on narrow lots with minimal setbacks in the locality. Where buildings are erected to the boundary they are either shop top housing with podiums or have larger landscaped setbacks. The DCP objectives for setbacks are to reinforce the desired spatial character of an area in terms of openness and density and mitigate the visual intrusion of building bulk on neighbouring properties. The development fails to satisfy those objectives.
16. In relation to the urban design contentions, I prefer the evidence of the Council's experts, I do not consider the design of the building has sufficient regard to the local context, it does not provide sufficient articulation and, due to the minimal side boundary setbacks, relies on opaque and translucent glass to side walls with minimal openings and outlook. Whilst I accept the site is extremely well located in terms of outlook and views towards the ocean, parks and bay, depending on the orientation of each unit, that focus is not sufficient reason to provide poor amenity to the rest of the apartment with no outlook available other than to small light wells.
17. I do not consider the objectives for solar and daylight access have been met. These are to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space. Sunlight is defined as direct beam radiation from the sun. Daylight consists of sunlight and diffuse light from the sky I do not accept the submission that the amenity is the view and everything else very much secondary and whilst the ADG seeks to optimise solar access within the development noting that where significant views are oriented away from the desired aspect for direct sunlight it may not be able to achieve the design criteria, this is not the case as the views are to the east, north and west, all orientations that allow for solar access.
18. I accept Mr Jarvis' calculation that only 57.7% of units receive 2 hours sunlight between 9am and 3pm and do not consider the applicant's suggested modifications to the building to improve the number of units that achieve the ADG design criteria for solar access will address the design issues with the building. I also note that they would increase the FSR of the building, probably to be greater than provided for by the development standard.
19. The other identified issue is the reliance on the light wells or indents in the northern elevation. The objective is that daylight access is maximised where sunlight is limited. There is no sunlight available to the lower level rooms along the northern elevation of the building. These rooms rely on the indents and opaque and translucent glazing for their light source. This is contrary to the design guidance and results in poor amenity to those units. It also results in poor acoustic privacy.
20. I do accept that the Watermark development with its reduced setbacks does not allow for equitable sharing of separation distances.
21. For consent to be granted, SEPP65 requires that the design quality principles must be considered. I do not consider the proposal has adequate regard to principles 1, 2 and 9. That is because the design fails to respond to what will be the desirable elements of the future character of the locality. Whilst the proposal is numerically compliant with the building height and FSR development standards, it fails to deliver a form that would be anticipated under the desired future character controls, that is with adequate spatial separation and amenity, building alignments, proportions and articulation. It does not define the public domain or contribute to the character of the streetscape including views and vistas nor provide good internal amenity and outlook.
22. As stated elsewhere, I accept the evidence of the Council's experts that the development does not respond to the future local context, particularly desirable elements and repetitions of the streetscape. The inadequacy of the side setbacks provides no opportunity for landscaping along the northern and parts of the southern boundaries exacerbating the impact of unarticulated facade with no buffer to neighbouring buildings. The building lacks the spatial qualities associated with other tower buildings in the locality. The narrow gap between the property and Watermark creates a narrow, dark space devoid of landscaping and inconsistent with the existing and future streetscape.
23. In regard to view loss, I accept that the current planning regime will result in some level of view loss and, apart from the controversial bedroom section in the south-eastern corner of the building, the view impact is across a side boundary. Therefore, in accordance with the principles in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 some view loss is likely. It is appropriate given the location of the site and the number of units that are in proximity to the site to consider the impact of the proposal as a whole rather than to individual units. Accordingly, there will be some level of view loss. This is consistent with the view taken by O'Neill C in Arnott v City of Sydney Council [2015] NSWLEC 1052 where at [72] she states: "The skilful design test is not about whether a design is skilful, in the sense of the architect's expertise in creating a successful architectural composition; instead the intent of the fourth step is to look for opportunities within the massing and form of the proposal to minimise the impact on views across the site, whilst maintaining the capacity to reasonably develop the site. This is evident in Dr Roseth's own words at paragraph 29 of the Tenacity planning principle, 'whether a more skilful design could provide the applicant with the same development potential and amenity' [bold added]. It is partly for this reason that the Tenacity planning principle is less helpfully applied to impacts on views from individual apartments within residential apartment buildings, as there are generally more limited opportunities to rearrange massing to preserve what is often a singular orientation to a view. For this reason, it is also appropriate to consider the residential apartment building as a whole in assessing view impacts."
24. I accept that the proposal provides for greater front setbacks than provided for under the DCP but also note the DCP anticipates a design analysis be conducted. For that reason, I support the suggestion that the south-eastern section of the building is that section of the building that contributes to view loss and should have a greater setback with the opportunity for reduced setback on the northern side of the building.
25. Other matters raised by objectors to the proposal and not included in the contentions relate to the extent of excavation and the adequacy of the geotechnical reports prepared by the applicant. The LEP requires that the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
26. The applicant has prepared a report titled Preliminary Geotechnical Assessment 12 April 2019, Exhibit B. This report has been prepared in the absence of soil testing below the existing RFB building however, I am satisfied as to the adequacy of that report for the purposes of cl 6.2 of the LEP. The Council proposes a deferred commencement condition as follows: "To minimise the risk of vibration damage and loss of support to buildings / structures and properties in close proximity to the development site, a Geotechnical Engineer's Report must be prepared incorporating the sinking of at least 4 boreholes that in the Geotechnical engineer's opinion are appropriate to the proposed depth of excavation and over the extent of the basement levels. The report shall detail constraints to be placed on earth moving and building plant and equipment and shall specify the methods of excavation, shoring, underpinning and support to be utilised so as to avoid damage to neighbouring properties and others, including public land in the zone of influence of excavation. The above Geotechnical Report must be submitted to and approved by Council to satisfy the Deferred Commencement Development consent."
27. Whilst I accept that the excavation of the site to the depth and extent proposed is likely to have the potential to damage adjoining properties if it is not properly designed, I consider the report is satisfactory at this stage. Rather than a deferred commencement condition, the requirement should be made so that the report is prepared prior to the issue of any construction certificate. In addition, draft condition 15, an agreed consent condition has been prepared that further address this requirement.
28. In relation to the traffic issues, I prefer the evidence of Mr Steal in relation to queueing analysis. It is not appropriate to consider the peak site generation as one input and then the PM peak hour generation at another. For this reason, I accept that there will be sufficient area available on site to accommodate vehicles waiting to enter the car lift at PM peak without adversely affecting traffic flow along Surf Lane.
29. The number of manoeuvres required to enter or exit the lift is another consequence of the narrow site lift and the unsuitability of the site for the density of development proposed.
30. For the reasons outlined above, I do not consider the development proposal has adequate regard to the broad suite of planning controls that apply to the site.
31. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA19/0300 for demolition of an existing residential flat building and construction of a 9 storey residential flat building containing 26 units with 4 levels of basement car parking and strata subdivision at 79-81 Gerrale Street, Cronulla is refused consent. 3. The exhibits, other than Exhibits 6, B and C, are returned. ………………………. Sue Morris Acting Commissioner of the Court

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