Glenn McCormack v Inner West Council

Environmental Planning and Assessment Act 1979

1. Section 79C(1) of the EPA Act states: "79C Evaluation (1) Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.".

Ashfield Local Environment Plan 2103

1. The proposed development is subject to the provisions of the ALEP 2013 and under which the Subject Site is zoned B4 Mixed Use. The proposed development is permissible with consent in this zone.
2. The objectives of the B4 zone are: to provide a mixture of compatible land uses. to integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. to enhance the viability, vitality and amenity of Ashfield town centre as the primary business activity, employment and civic centre of Ashfield. to encourage the orderly and efficient development of land through the consolidation of lots.
3. Of particular relevance to the proposed development are the following provisions of ALEP 2013: 1. Clause 4.3 (cl4.3) controls the height of buildings, and provides: The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. The clause also provides that: (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. 1. The maximum height of developments on the Subject Site is provided by the Height of Buildings Map within ALEP 2103, and is 13m for the 1 Lion St portion of the Subject Site, and 9.0m for the 402 Liverpool Rd portion of the Subject Site. 2. Building A has a proposed height of 12.6m over that portion of the Subject Site covered by the 1 Lion St lot. This element of the building is compliant with the 13m height control applicable to that lot. 3. A portion of Building A is proposed to be constructed on the 402 Liverpool Rd portion of the Subject Site. This portion of Building A has a maximum height of 10.3m as measured from the existing ground level to the highest point of the building. This exceeds the 9m height control applicable to this lot by 1.3m. 4. The proposed height of Building B, all of which is located on the 402 Liverpool Rd portion of the Subject Site, is 10.4m above the existing ground level to the highest point of the building. 1. Clause 4.4 (cl4.4) controls the floor space ratio (FSR) of buildings, and provides: 2. (1) The objectives of this clause are as follows: (a) to establish standards for development density and intensity of land use, (b) to provide consistency in the bulk and scale of new development with existing development, (c) to minimise adverse environmental impacts on heritage conservation areas and heritage items, (d) to protect the use or enjoyment of adjoining properties and the public domain, (e) to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. The FSR controls under ALEP 2013 for Subject Site are: 1. For the 402 Liverpool Road portion of the Subject Site - 1:1 and 2. For the 1 Lion Street portion of the Subject Site - 1.5:1 1. Clause 6.2 (cl 6.2) which sets out requirements relating to flood planning on land that is at or below the flood planning level. The Subject Site is located adjacent to Dobroyd Canal/Iron Cove Creek, and as a consequence is subject to flooding. The parties agreed that the Subject Site is at or below the flood planning level and so subject to the provisions of clause 6.2. 1. The objectives of clause 6.2 are: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. 1. The clause provides that: 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 compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of the river banks of waterways, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. Based on these provisions, development consent must not be granted to the proposed development unless the consent authority, or the Court on appeal, is satisfied that the development is compatible with the flood hazard of the land. 2. The flood planning level for the subject site was established in a report by WMAwater Pty Ltd, tendered in evidence at the hearing, as being as the the 1% Annual Exceedance Probability (AEP) peak flood level plus 0.5m, which equates to a level of 7.2m Australian Height Datum (AHD). 3. During the hearing the applicant identified that the requirements of ALEP 2013 cl6.2, and those of cl4.3 concerning permitted building height, present a potential inconsistency in the requirements of the LEP. 4. Consequently, the applicant has proposed that the level of 7.2m ADH be used as the baseline for estimation of the proposed building height, as the ALEP 2013 requires that the development is compatible with the flood hazard of the land. 5. Notwithstanding this, the proposed height exceedances of both Buildings A and B could only be approved if an exception to the LEP development standard concerning height were to be granted. 1. Clause 4.6 (cl4.6) Exceptions to Development Standards, provides a basis for contravention of standards in LEP 2013 as follows: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. The Applicant has tendered written requests under cl4.6 seeking to contravene the height and FSR standards within ALEP 2013.
4. The Subject Site is also subject to the provisions of the Inner West Council Comprehensive Development Control Plan 2016 for Ashbury, Ashfield, Croydon, Croydon Park, Haberfield, Hurlstone Park and Summer Hill (IWDCP 2016), which was adopted by Council on 6 December 2016 and came into effect on 10 January 2017.
5. According to the IWDCP, it was prepared to: 1. supplement ALEP 2013 by providing more detailed provisions to guide development that requires Council approval; 2. support ALEP 2013 by providing guidelines that will encourage good urban design which will complement zone objectives and key development standards contained in the ALEP 2013.
6. However, as a consequence of a savings provision (IWDCP 2016 Part A Preliminary Page 3), IWDCP 2016 does not apply to an application made under the EPA Act and lodged with Council but not finally determined before the commencement of IWDCP 2016.
7. Any application formally lodged before the commencement of IWDCP 2016 must be assessed in accordance with any relevant previous Interim Development Assessment Policies (IDAP) or other applicable Council policies applicable at the time the application was lodged.
8. Development Application No. 10.2016.060 was lodged with Council on 23 March 2016, but not finally determined before the commencement of IWDCP 2016, and so is subject to the provisions of the earlier Ashfield Interim Development Assessment Policy 2013 (IDAP 2013) which came into effect in February 2014.
9. Of particular relevance to any development application on the Subject Site are the following parts of IDAP 2013: 1. Part C4 Ashfield West, which provides controls specific to residential flat development and shop top housing in Ashfield West not contained in State Environmental Planning Policy No. 65, and generic controls for non-residential development provisions in the B4 Mixed Use zone in Ashfield West under ALEP 2013. 2. Part E8 Flood Development Control Policy, by Council on 26 May 2015, which provides development controls and guidelines to reduce or eliminate risks and impacts associated with flooding in areas covered by IDAP 2013.
10. Part C4 Ashfield West of IDAP 2013 and Chapter 3 Part D of IWDCP 2016 both provide support to ALEP 2013 by providing additional objectives and development standards to enhance the function and appearance of the Ashfield West area. This area includes the Subject Site and other properties fronting Liverpool Rd, between Wetherill Rd and broadly east to Thomas St.
11. Notwithstanding the savings provisions of IWDCP 2016, the parts of IWDCP 2016 and IDAP 2013 applicable to Ashfield West, including the Subject Site, provide consistent guidance with respect to the development outcomes in this area and on the Subject Site.
12. The future development intent with respect to the Subject Site is illustrated in the following map, which is included in IDAP 2013 as Map 2 of Part C4, and which also appears as Map 2 in Part 3 of Chapter D in IWDCP 2016.
13. The Subject Site (outlined in orange above) is the broadly triangular area to the south-west of the Ashfield West area. It includes the smaller corner lot (1 Lion St) that fronts both Liverpool Rd and Lion St, along with a larger lot (at 402 Liverpool Rd).
14. This map confirms that the development intent for the Subject Site as contained in IDAP 2013 consisted of: 1. On the 402 Liverpool Rd portion of the site: a 9m high building form, in two wings, consisting of two storeys with a third story in the roof space envelope; and 2. On the 1 Lion St portion of the site: a 13m building form, fronting both Lion St and Liverpool Rd, and consisting of a three storey built form.
15. Proposed arrangement for development servicing and traffic access to the Subject Site is illustrated in Map 5 of Part C4 of IDAP 2013 (below). This same figure also appears within IWDCP 2016 as Map 6 in Part 3 of Chapter D. Consequently, the provisions of IDAP 2016 and IWDCP 2016 with respect to the development intent for Subject Site are consistent.
16. IDAP 2013 (and IWDCP 2016) proposes that the principal access to the Subject Site be via the entry at 402 Liverpool Rd rather than via Lion St. It suggests that the entry/exit point on Liverpool Rd should be discussed with Council engineers at the early design phase, and that consultation is required with NSW Roads and Maritime Services (NSW RMS) in relation the access point to 1 Lion St.
17. The Respondent had referred the proposed development to the NSW RMS for concurrence in accordance with s138 of the Roads Act 1993, which provides: 138 WORKS AND STRUCTURES (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.
18. During the hearing, both parties submitted that, should the appeal be upheld on its merits, then the Court should grant concurrence to the proposed access on Liverpool Road under powers provided to the Court on appeal in s39 (2) of the LEC Act, which provides: (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.

1. State Environmental Planning Policy No 65 (SEPP65) aims to improve the design quality of residential flat development in New South Wales, and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design
2. SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building is 3 or more storeys and 4 or more dwellings.
3. SEPP65 sets a consistent policy direction for residential apartment development in New South Wales and provides a uniform State-wide framework for more detailed planning. It has a statutory effect on development and as a consequence may modify supplement the provisions of state environmental planning policies, local environmental plans and development control plans.
4. SEPP65 has a close and integrated relationship with the Apartment Design Guide (ADG) published by the NSW Department of Planning and Environment, which provides consistent planning and design standards for residential apartments in New South Wales. Parts 3 and 4 of the ADG provided objectives, design criteria and design guide for the siting, design and amenity of Apartment development.
5. The policy came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.

Contentions

1. At the commencement of the hearing the applicant sought, and was granted, leave to rely on amended plans. During the hearing, further amendments were made to these plans and revisions tendered as evidence, without objection.
2. The applicant also tendered, without objection, an amended BASIX certificate for the final set of amended plans.
3. The parties advised that, based on these amended plans, certain matters that had been in contention between them had been resolved and were no longer pressed by the respondent. These were: 1. Stormwater management: the amended plans removed an earlier proposal for a flood gate to be installed at the entry to the basement carpark of Building B. A revised design for the entry to the carpark was agreed to have satisfactorily mitigated any risk of flooding within the carpark. 2. Waste management: the amended plans resolved a contention concerning the location, design and operation of a waste storage space for Buildings A and B, and the parties agreed that certain matters concerning waste collection from the site could be addressed through conditions of consent. Conditions for this purpose were drafted and provided in submissions. 3. Heritage: the amended plans included design modifications to the western façade of Building B which the heritage experts for the Parties advised had resolved contentions concerning the presentation of the building to its west, at the Subject Site's interface with the Wetherill St Conservation Area. It was also agreed during the hearing, and confirmed in testimony of the planning experts (see [38]), that privacy concerns relating to view lines from the proposed Building B to the west could be addressed through conditions.
4. Of the remaining contentions addressed during the hearing some related to broader planning matters and some to more specific aspects of the proposed designs for Buildings A and B. For the purposes of this judgment, I have grouped them as follows: 1. IDAP 2013: what weight should be accorded to the provisions of IDAP 2013 in this appeal? 2. Clause 4.6 requests: Should the applicant's cl4.6 requests to contravene developments standards in ALEP 2013 be upheld? The written cl4.6 requests submitted by the applicant sought to contravene height and FSR standards in relation to Buildings A and B as follows: 1. In relation to Building A: 1. Height: should the applicant's cl4.6 request to contravene the height control for that part of Building A proposed to be built on the 402 Liverpool Rd portion of the Subject Site be upheld? 1. In relation to Building B: 1. Height: should the applicant's cl4.6 request to contravene the height control for Building B, to be constructed on the 402 Liverpool Rd portion of the Subject Site, be upheld? 2. Gross floor area (GFA) in roof: should the applicant's cl4.6 request to contravene the standard in cl.4.3(2A) in relation to locating GFA space in the roof of Building B be upheld? 3. FSR: should the applicant's cl4.6 request to contravene the FSR standard under cl4.4 be upheld? 1. Zone transition: does the proposed design of Building A provide for an acceptable transition between the Subject Site 's B4 zoning and the R2 zoning of the adjacent land at 3 Lion St? 2. Access to the Subject Site via Liverpool Rd: should concurrence be granted under s138 of the Roads Act 1993 for access to the proposed development via the existing access to 402 Liverpool Road, using the Court's powers on appeal under s39 of the LEC Act.
5. During the hearing testimony taken was from the authors of the joint expert report on planning: Mr Daniel McNamara for the Respondent, and Mr Gerard Turrisi for the Applicant.

What weight should be given to IDAP 2013?

1. The question as to what weight the Court should afford IDAP 2013 in an appeal has been considered previously by Commissioners Pearson and O'Neill in the cases of Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 and Abdul-Rahman v Ashfield Council [2015] NSWLEC 1122, respectively.
2. Commissioner Pearson noted that, as an expression of the council's policy approach to development assessment, in a documented form adopted by the Council, IDAP 2013 is a relevant consideration as an aspect of public interest under s79C(1) of the EP&A Act.
3. In reaching this conclusion, Commissioner relied on the judgement of McLellan CJ in Stockland Development Pty Ltd v Manly Council [2004] LECNSW 472 as the basis for her consideration of the question as to what weight should be afforded IDAP 2013 in the appeal in Four2Five Pty Ltd v Ashfield Council.
4. McLellan CJ at [91] and following of that appeal had concluded that: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
5. In the appeal of Four2Five Pty Ltd v Ashfield Council, Commissioner Pearson concluded that it was not appropriate to give the policy any substantial weight in determining that appeal because IDAP 2013: 1. had not been the subject of public consultation; 2. had not been developed on the basis of specific research; 3. had only been in force for two months at the time of the appeal; 4. had not been in force at the time of lodgement of the appeal; and 5. had been departed from in a recent decision of Council, some three months before it came into force.
6. Commissioner O'Neill in Abdul-Rahman v Ashfield Council adopted the reasons of Commissioner Pearson in considering the weight to give to IDAP 2013, and for those same reasons also concluded that it was not appropriate to give the policy any substantial weight in determining that appeal.
7. While I embrace the reasoning of both Commissioners Pearson and O'Neill in relying on the judgement of McLennan CJ in Stockland v Manly Council, I arrive at a different conclusion largely due to the passage of time between this appeal and those previous appeals. In the years since those two previous appeals: 1. IDAP 2013, in the form of what is now IWDCP 2016, has been the subject of public consultation, and 2. IDAP 2013 had been applied by Council in its assessment of development applications over a more substantial period of time.
8. In this appeal, I believe that IDAP 2013 should be given weight in my considerations because, based on the evidence before me, including the submissions of the parties, IDAP 2013: 1. has now been the subject of public consultation; 2. has been in force for a period of some two and a half years; 3. has been applied consistently by Council; 4. is consistent with IWDCP 2016, which was developed to provide guidance to the implementation of ALEP 2013; 5. does not contain substantial flaws when assessed against conventional planning outcomes.
9. These reasons are consistent with the approach adopted by McLennan CJ in Stockland Development Pty Ltd v Manly Council.
10. Where the applicant has submitted a cl.4.6 request to contravene a development standard in ALEP 2013, I have concluded that the provisions of IDAP 2013 can form one of the factors to be considered in relation to the planning merits associated with the request.

Should the applicants cl4.6 requests submitted to contravene the LEP development standards be upheld?

1. As discussed at [13(4)], in order for development consent to be granted for development that contravenes a development standard in LEP 2013, I must be satisfied that: 1. the applicant's written request to contravene the standard has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances, and that there are sufficient environmental planning grounds to justify contravening the development standard, and; 2. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out .
2. In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 in which five pathways were identified that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
3. The applicant's cl4.6 requests seek to contravene the development standards associated with height and FSR on the Subject Site, and specifically on those elements of the proposed development that are sited on the 402 Liverpool Rd portion of the Subject Site.
4. I will address each of the cl4.6 requests in turn, first addressing those associated with proposed Building A and then those associated with proposed Building B.

Building A - Height

1. As noted in [13(1)(b)], the proposed height of Building A is compliant with the 13m height control in LEP 2015 for that portion of the building on the 1 Lion Street lot of the Subject Site.
2. However a part of the proposed Building A is sited on the 402 Liverpool Road portion of the Subject Site, and this element of the building exceeds the height control of 9 m specified under cl4.3(2) of LEP 2013 by 1.3 m.
3. The applicant submitted that this breach of the height control arose due to the requirements of cl6.2 of ALEP 2013 that the habitable floor levels of any building on the subject site be at or above the agreed flood planning level. As identified at [13(3)(f)] this level is 17.2m AHD.
4. As a consequence of this requirement the applicant said that the ground floor levels of the buildings on the subject site must be raised at their maximum by approximately 1.4m in order that the proposed buildings stay above the flood planning level.
5. The applicant's clause 4.6 request stated that compliance with the height development standard under clause 4.3(2) of ALEP 2013 was unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard, and this was not challenged by the respondent in relation to that portion of Building A sited on 402 Liverpool Road.
6. The objectives for the height development standard were identified above at [13].
7. Having reviewed these objectives in relation to the proposed contravention of height of Building A, and the response to these requirements by the applicant in its cl4.6 request, I am satisfied that the objectives of the development standard in cl4.3(2) are achieved notwithstanding the proposed contravention for the reasons presented in the applicant's cl4.6 request.
8. I have also reviewed these objectives in relation to the proposed breach of the development standard in cl4.3(2A). This subclause requires that any part of the building that is within 3m of the height limit set by subclause (2) of cl4.3 must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area.
9. This clause in ALEP 2013 has been the subject of previous considerations by the Court, notably before Commissioner Pearson in the case of Four2Five Pty Ltd V Ashfield Council.
10. In that appeal Commissioner Pearson noted, at [50], that despite its inclusion in the development standard associated with height, the clause was confined to a question of the use of part of the building, and so its planning purpose was unclear.
11. The Commissioner further noted that cl 4.3(2A) was poorly worded and that the objectives of the clause, as set out in cl4.3(1) of ALEP 2013 do not explain the planning purpose, intent, nor desired outcome of the clause.
12. I concur with this view, and would add that the lack of alignment between the clause and any of the objectives in the relevant section of ALEP 2013 is both unhelpful and confusing. This is particularly the case when it is also inconsistent with the provisions of IDAP 2013 and IWDCP 2016. This is of greater relevance to the proposed contravention of the building height development standard by Building B, which is discussed below at [73} and following paragraphs.
13. The proposed design of building A includes habitable space in the form of four apartments that form part of the gross floor area of the building. Notwithstanding this, the objectives of the clause 4.3 relate strictly to a height development standard, and are not well drafted to reflect intent with respect to a control of GFA.
14. As a consequence, I am satisfied that the objectives of the height development standard in cl4.3 are achieved notwithstanding the proposed breach of the development standard in cl4.3(2A) since that standard has little relevance to the control of building height, to which end the objective of cl 4.3 are drafted.
15. The respondent accepted, supported by the expert testimony of Mr McNamara, that the flood planning level of 7.2m ADH should be adopted as the ground floor level for the purposes of calculating building height in relation to all buildings on the site, including Building A.
16. The respondent's town planning expert, Mr McNamara, was of the view that the requirement in ALEP 2013 that all habitable rooms be above the flood planning level, provided justification for the breach of the height control height in the case of Building A.
17. Given the need to balance the two controls in the ALEP 2013, it was the view of the experts that the need for the development to reflect the flood planning level provided adequate planning reasons for the proposed contravention.
18. I agree with this assessment and am satisfied that adequate planning reasons exist for the proposed contravention of the height development standard in relation to Building A.
19. Given that the objectives of the height development standard are achieved notwithstanding the non-compliances with the standard under clauses 4.3(2) and 4.3(2A), and given that there are good planning reasons to support the contravention, I am of the view that the proposed contravention is in the public interest.
20. I conclude that that part of the applicant's cl4.6 request seeking to contravene the building height development standard in ALEP 2013 should be upheld in relation to the contravention of the height development standard by Building A.

Building B - Height

1. As noted at [13(1)(d)] the height of proposed Building B, located on the 402 Liverpool Rd portion of the subject site, is 10.4m above the existing ground level measured to the highest point of the building. The height control for this lot is 9m and so the proposed height exceeds the development standard under cl4.2(2) of LEP 2013 by 1.4 m..
2. Further, the design of Building B includes a proposal for apartments within the roof structure of that building. While this proposal is consistent with the desired intent for the site as identified within IDAP 2013, and subsequently in IWDCP 2016, it is in contravention of the development standard in cl4.3(2A) of ALEP 2013.
3. As previously noted, this standard specifies that within a building is located on land in zone B4 mixed use, any part of the building that is within 3m of the height limit set by subclause 4.4(2) must not include any area that forms part of the gross floor area of building and must not be capable of modification to include such an area.
4. The applicant has submitted a written cl4.6 request to contravene the height standard in cl4.3 of ALEP 2013 with respect to both of these subclauses. I will consider each of these separately.

Is the proposed contravention of the Clause 4.3(2) development standard acceptable?

1. Under clause 4.3(2), the 402 Liverpool Road portion of the Subject Site has a height control of 9m. The proposed height of Building B exceeds that limit by 1.4 m.
2. The applicant's cl4.6 request for contravention of this development standard is based upon same logic as was applied in relation to the proposed contravention of the same standard by Building A. That is, that this contravention is a consequence of the proposal needing to comply with the requirements of cl6.2 of ALEP2013 concerning flood planning.
3. My assessment of this proposal in relation to Building A, including consideration as to whether it adequately satisfies the requirements of clause that 4.6 of ALEP 2013, is provided above at [55] to [59].
4. For the same reasons adopted in relation to the proposed contravention of the height development standard in relation to Building A, I find that: 1. compliance with the development standard is unnecessary because the development standard objectives are achieved notwithstanding the non-compliance with the standard; 2. there is an adequate planning reason (i.e. the need to comply with the development standard in cl6.2 of LEP 2013 concerning flood planning) to support the proposed contravention; and 3. as a consequence of these points, the proposed contravention is in the public interest.
5. I conclude that the proposed contravention of the development standard under cl 4.3(2) of LEP 2013 is also acceptable in the case of Building B.

Is the proposed contravention of the Clause 4.3(2A) development standard acceptable?

1. The applicant also proposes that the design of Building B include apartments in the roof space of the building. This is in contravention of the development standard in cl4.3(2A) of LEP 2013 as apartments in this location are within 3 m of the height limit applicable to building B and they would contribute to the gross floor area of Building B.
2. As discussed at [62] and [63], while cl4.3(2A) is included within the ALEP 2013 development standard associated with height, the clause is confined to the question of the use of part of the building, and its planning purpose was unclear.
3. As Commissioner Pearson identified in Four2Five Pty Ltd v Ashfield Council, and with which assessment I concur, cl4.3(2A) of ALEP 2013 is poorly worded and the objectives of the clause, as set out in cl4.3(1) of the LEP, do not explain the planning purpose, intent, nor desired outcome of the clause.
4. The applicant's cl4.6 request provides reasons as to why this is the case. In essence it is difficult for a contravention of the requirements of cl4.3(2A) to compromise the achievement of the objectives of cl4.3, since those objectives relate to building height, and the standard in cl4.2(2A) relates to GFA, and does not directly impact on height of the building.
5. I consider that the objectives of cl4.3, as set out in cl4.3(1) are achieved by the proposal notwithstanding the 1.4m exceedance of the height control proposed for the 402 Liverpool Road portion of the Subject Site.
6. There remains then the consideration of whether there is an adequate planning reason to justify the proposed contravention of the development standard in cl4.3(2A).
7. The applicant's cl4.6 request to contravene the development standard in cl4.3(2A), notes that the built form proposed for building B (ie two-storey with a third Storey within the roof space envelope) is consistent with the planning intent provided within IDAP2013 and subsequently in IWDCP 2016.
8. As noted above, I have previously concluded that for reasons given at [46] weight can be given to the provisions of IDAP 2013 in this appeal. Consequently the provisions of IDAP 2013 concerning the proposed future built form on the subject site are a consideration in relation to whether there is sufficient environment planning grounds for the proposed contravention of the development standard under cl4.3(2A).
9. The applicant's cl4.6 request also states that the architectural language applied to building B clearly defines it as a two storey structure and that the base reads like a series of terrace like structures which are more in line with the scale of the adjoining low density residential buildings. I agree with this assessment and with its use as providing further environmental planning grounds for the proposed contravention of the development standard in cl4.3(2A).
10. As a consequence of these points, I am satisfied that: 1. the objectives of of cl4.3(2A) would be achieved by the proposed development and so compliance with the standard is unnecessary, and 2. there are sufficient environmental planning grounds to support the request to contravene the development standard.
11. I conclude that, for the reasons provided above and those contained in the applicant's cl4.6 re quest, the proposed contravention of the development standard in cl4.3(2A) is in the public interest, and that the proposed contravention of the development standard under cl 4.3(2A) of ALEP 2013 should be upheld in the case of Building B.

Floor Space Ratio (FSR)

1. The development standards with respect to FSR for the Subject Site are provided within cl4.4 of ALEP 2013, the objectives of which are to: (a) to establish standards for development density and intensity of land use, (b) to provide consistency in the bulk and scale of new development with existing development, (c) to minimise adverse environmental impacts on heritage conservation areas and heritage items, (d) to protect the use or enjoyment of adjoining properties and the public domain, (e) to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation..
2. The FSR controls applicable to each part of the Subject Site are: 1. For 1 Lion St - 1.5:1 2. For 402 Liverpool Rd - 1:1
3. The parties agreed that the proposed FSR for that part of Building A proposed to be constructed on 1 Lion Rd is compliant with the requirements of cl 4.4 of ALEP 2013.
4. The cl4.6 written request for contravention of the FSR relates solely to the buildings on the 402 Liverpool Rd portion of the Subject Site.
5. The parties further agreed that the proposed FSR breach on 402 Liverpool Rd was associated with Building B, and the applicant has provided a written request to contravene the FSR standard under ALEP 2013 with respect to certain elements of Building B.
6. The parties agreed that two elements of the design of Building B, both of which are addressed in the applicant's cl4.6 request, contributed to breaches of the FSR and were in relation to: 1. Waste and storage areas in basement, and 2. Central terraces in Building B.
7. A third design element of Building B, a so-called open corridor between the two wings of that building, was raised by the respondent as a potential source of additional GFA and a potential contributor to a breach of the FSR by the development.
8. I will first consider the elements of Building B design covered by the applicant's cl4.6 request (ie the waste areas in the basement and the terraces) before finally addressing the matter of the so-called corridor.

Building B - GFA waste and storage areas in the basement

1. ALEP 2013 defines a basement as: the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).
2. The applicant's cl4.6 request noted that the underside of the basement ceiling within Building B is set at 1m above existing ground level. The slab above that is 400 mm thick, and so the slab protrudes more than 1m above the existing ground level basement. This creates an area of the basement that does not meet the definition of basement under LEP 2013.
3. The definition of GFA under LEP 2013 specifically excludes areas of the basement required to meet car parking requirements of Council, but does not exclude waste or storage areas unless they are contained within a basement as defined by the ALEP. Consequently, the area of the basement 1m or more above the ground level that is used the purposes of waste management and storage contributes to the calculation of GFA, and so FSR, for a Building B.
4. It was the evidence of the applicant's planner Mr Turrisi, accepted by the respondent's planner Mr McNamara, that the part of the basement above 1 m was 112.2 m² in area.
5. As discussed above [13(3)], the height of building B, including the levels of the basement, have been determined by the requirement of cl6.2 of ALEP 2013 that the ground floor habitable areas be above the 17.2m ADH flood planning level. The applicant noted that, as a consequence of this, the proposed basement is at its a minimum height having regard to the required finished floor levels.
6. The applicant further noted that the inclusion of these waste management and storage areas within the calculation of GFA, and therefore FSR, does not alter the proposed development in terms of its footprint or height.
7. The applicant's cl4.6 request noted that the inclusion of these areas within the calculation of GFR, and therefore FSR, did not contribute to the bulk and scale of the building, as the height was determined through a combination of the development standard in cl4.3 together with the need to meet the flood planning requirements of cl6.2 of ALEP 2013.
8. The respondent's planning expert, Mr McNamara, agreed with the applicant's position that the waste management and storage areas in the basement do not contribute to the bulk of Building B other than as a consequence of the basement level needing to respond the flood planning requirements of ALEP 2013.
9. The applicant said that inclusion of the waste management and storage space in the basement as part of the FSR calculation did not compromise the achievement of the FSR objectives in ALEP 2013 and so compliance with the standard was unnecessary in terms of this specific.
10. The applicant's cl4.6 request also noted that the provision of the waste rooms within the basement of Building B removed any potential visual and/or amenity impacts to adjoining properties and this provided a better environmental planning outcome for the development with no consequence to the proposed built form.
11. As a consequence, the applicant said that there were sufficient environmental planning grounds to justify this contravention of the development standard for FSR on the Subject Site.
12. Having considered these points I accept the applicant's reasoning, as presented in the applicant's cl4.6 request, that compliance with the FSR development standard, specifically in relation to the waste management and storage areas in the basement is unnecessary, and that there are sufficient environment planning grounds to justify this contravention.
13. As a consequence, I am satisfied that this aspect of the proposed contravention of the development standard is in the public interest and that the cl4.6 request to contravene the FSR development standard in respect of the basement waste management and storage areas should be upheld.

Building B - Central Terraces

1. The design of proposed Building B provides seven central terraces associated with units B208 to B211 and B213 to B215. These terraces are all located off bedrooms.
2. Under the definition of GFA, the area of terraces and balconies with outer walls measuring less than 1.4 m are excluded from the calculation of GFA.
3. The terraces in question require privacy screens to protect the amenity of the occupants of adjoining units. Consequently they have a wall height greater than 1.4m and as a consequence they are included in the calculation of GFA, and consequently of FSR.
4. The applicant said that, as the terraces are located within the centre of the building, they do not change the proposed envelope, nor the bulk and scale, of building B. The applicant also noted that: 1. the additional floor area is not habitable floor area and therefore doesn't increase the intensity or density of the development (FSR objective a) 2. the provision of these spaces do is not add any additional bulk and scale to the development (FSR objective b) 3. the terraces do not affect adjoining properties in terms of heritage or the amenity as the elements do not alter the proposed envelope (FSR objective c) 4. the design has ensured that the amenity of adjoining properties are protected and that the development alliance with future desired character requirements of Council (FSR objective d) 5. the design alliance with Council's desired character and the proposal provides for an appropriate visual relationship to neighbours (FSR objective e)
5. As a consequence, the applicant said that compliance with the FSR development standard in relation to this aspect of the potential breach was unnecessary as the objectives of the development standard would be achieved notwithstanding the breach. This was supported by the evidence of the applicant's planning expert, Mr Turrisi.
6. The applicant's cl4.6 request also notes that the terraces provide improved amenity to the proposed units and that their position within the development does not give rise to any external impacts. The applicant said that on this basis, the retention of the terraces for use by future occupants provided a better planning outcome planning outcome than, for example, replacing the proposed sliding doors to the terraces with windows which would remove them from inclusion in the calculation of FSR.
7. The applicant concluded that on the basis of these considerations there were sufficient environment planning grounds to support the breach of the FSR development control arising from the central terraces.
8. Having considered these points, I agree with the applicant's reasons and conclusion, and I am satisfied that the cl4.6 request to contravene the FSR development control in relation to the central terraces is in the public interest and should be upheld.

Building B - corridor

1. The design of Building B includes an internal open corridor running generally north-south through the building. The corridor is approximately 4m wide and 20m long, and it is located on both the first and second floors of proposed Building B. The parties agreed that the total floor area of these corridors is approximately 80 m².
2. It was the respondent's contention, supported by the evidence of Mr McNamara, that these corridor areas contributed to the bulk of Building B, and should be reduced in size.
3. Notwithstanding this, it was acknowledged by Mr McNamara and subsequently by the respondent, that because these areas were not enclosed they were not required for inclusion in the calculation of GFR, and so did not contribute to the calculation of FSR.
4. In response to a question from the applicant, Mr McNamara also agreed that amendments made to the western facade of Building B, including additional articulations, had contributed to a reduction in the bulk of the building.
5. It was the applicant's submission that the floor area within the corridors should not be included in calculations of FSR for Building B and therefore did not require inclusion in the applicant's clause 4.6 request to vary the FSR development standard.
6. Having considered this matter I accept the reasoning of the applicant on this point and agree that, notwithstanding respondent's view that the corridor contributes to the bulk of Building B, if the corridor area is not required by definition to be included in the calculation of FSR, then it is not required to be addressed within the applicant's clause 4.6 request to vary the FSR standard.

Transition between Nos 1 and 3 Lion St

1. As discussed above at [4], the Subject Site is bounded to the south by the property at 3 Lion Street on which is located a single storey dwelling. While the subject site is zoned B4 Mixed Use, the lot at 3 Lion Street is zoned R2 Low Density Residential. The boundary between these lots provides a transition between these zones.
2. The height development standard in ALEP 2013 cl4.3(2) provides for a height of up to 13m on the 1 Lion St lot. The proposed Building A is compliant with this standard. The height development standard on the adjacent lot at 3 Lion St is up to 8.5m.
3. During the hearing, the respondent submitted, supported by the expert testimony of Mr McNamara, that the proposed design of Building A did not provide an adequate transition between the B4 zoning of 1 Lion Street and the R2 zoning of 3 Lion Street.
4. In particular the respondent said that the proposed design of Building A: 1. did not provide an adequate setback from its southern boundary, and 2. presented a four-storey high wall along its entire length to the building on 3 Lion Street.
5. The respondent contended that this design provided an inappropriate transition between the B4 zone of the Subject Site and the R2 zone of the adjacent property.
6. This position was supported by the evidence of the respondent's planning expert Mr McNamara who said that in his opinion the transition provided by the proposed design of building a to the existing dwelling on 3 Lion Street was inadequate as a consequence of the proposed 1.9m separation between these buildings and the lack of a step down in the design of the south-east element of Building A.
7. The respondent drew the Court's attention to the design guidelines provided within the ADG, and in particular noted the following: 1. Part 2F Building Separation, which in its considerations for setting building separation controls notes: at the boundary between a change in zone from apartment buildings to a lower density area, increase the building set back from the boundary by 3 m. 1. Part 2H Side and Rear Setbacks, which in its considerations in setting side and rear setback controls recommends : test side and rear setbacks with the requirements for building separation and visual privacy 1. Part 3F Visual Privacy, which includes as Objective 3F-1: adequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy. It recommends in its design criteria for building heights of up to 12m (4 storeys) that there be a minimum separation distance from buildings to the side boundaries between non-habitable rooms of 3 m. It also provides the following more specific design guidance generally one step in the built form as the height increases due to building separation's is desirable apartment building should have an increased separation distance of 3 m (in addition to the requirements set out in design criteria 1) when adjacent to a different a zone that permits low density residential developments to provide for a transition in scale and increased landscaping.
8. In support of this position the respondent drew the Court's attention the case of Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, in which the Commissioner noted, in part, the following planning principle at [25]: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone.
9. Based on the above, the respondent proposed that the proposed Building A should not be approved as it did not reflect the design recommendations of the ADG, and did not provide an adequate transition between the B4 and R2 zones.
10. In response, the applicant said that: 1. the management of the transition between the B4 and R2 zones was already provided by the setting of the differing height limits on different parcels of land. He noted that based on the height maps within ALEP 2013 Council had already decided that the transition between the two zones should be from 13m on the Subject Site down to 8.5m on the adjoining R2 zoned land; 2. Council had provided further guidance in relation to transitions between zones in the area of the subject site through the identification of specific areas in IDAP 2013, and IWDCP 2016, where a transition in height was required so as to be sympathetic to building heights on adjacent properties. The respondent noted that the Subject Site is not one of those properties; 3. in identifying the appropriate setback between the proposed Building A and the neighbouring dwelling on 3 Lion St, consideration should be given to the fact that the current dwelling may not remain in that form, and that because the lot is not in a heritage conservation area and the house is not heritage listed, a taller building could be constructed on the that site up to the permitted height control of 8.5m; 4. the recommendations in the ADG with respect to setbacks cited by the respondent related to visual privacy, and that there were no windows or balconies proposed on the southern elevation of Building A that would give rise to privacy concerns.
11. Notwithstanding this, the respondent noted that the existing dwelling on 3 Lion St had a blank wall facing the Subject Site, and he said that if a non-habitable room was located behind the blank wall then the required separation distance between a window and that wall would be 3m.
12. Having considered the positions of the parties, along with the setback guidelines of the ADG under SEPP65, I have concluded that the proposed setback of 1.9m between Building A and the dwelling on the adjacent lot at 3 Lion St is inadequate, and should be revised to provide a setback of at least 3m.
13. I consider that a 3m setback would provide a minimum level of amenity to the current occupants of the dwelling on 3 Lion St, and it would facilitate an improved design outcome between any future development on that lot and the development on the Subject Site.

Should the Court grant the concurrence required under s138 of the Roads Act to facilitate access to and from the proposed development via Liverpool Road?

1. As noted at [27], the respondent had referred the proposed development to the NSW Roads and Maritime Services (RMS) for concurrence in accordance with s138 of the Roads Act 1993.
2. In response, the NSW RMS advised that its current practice was to limit the number of vehicular conflict points along arterial road networks in order to maintain network efficiency and road safety, and that access across the boundary with a major road is to be avoided wherever possible.
3. The NSW RMS further advised that Liverpool Road is a major road, which carries a high volume of traffic, where transport efficiency of through traffic is of great importance.
4. Its response then cited cl101(2a) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) which states that: "the consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by Road other than the classified road".
5. The NSW RMS concluded that, as the subject site has alternative vehicular access via the local road network, NSW RMS would not grant concurrence to the proposed access on Liverpool Road under s138 of the Roads Act.
6. Notwithstanding this advice, the parties agreed that, should the development receive consent, it was appropriate that the Court on appeal grant concurrence for access to the site via the existing entry to the 402 Liverpool Road under the powers available to it through s39 of the LEC Act. .
7. The respondent confirmed that NSW RMS had been advised of this appeal and its timing, and had been invited to provide evidence during the proceedings. The respondent confirmed that no response had been received from NSW RMS to that advice, and no representative of NSW RMS had sought to appear before the hearing of this appeal.
8. The parties were of a common view that: 1. there was an existing access point on Liverpool Road into and from the 402 Liverpool Rd portion of Subject Site; 2. the IDAP 2013, and subsequently IWDCP 2016, identified the entry to 402 Liverpool Road as the preferred entry and exit point for the proposed development; 3. the construction of the proposed Building A precluded the use of Lion St as an access point for the development; 4. the policy of the NSW RMS was that access across the boundary with a major road is to be avoided wherever possible, but that, in relation to this development, avoidance of such access was not possible.
9. Having given consideration to the circumstances of the development application in this appeal, and the public interest, I have concluded that the common position of the parties should be adopted, and that I should grant concurrence under s138 of the Roads Act, and using the Court's powers under s39 of the LEC Act, for the application's proposed use of the existing access from Liverpool Road to the Subject Site.

Conclusion

1. Based on the above, I have concluded that: 1. The provisions of IDAP 2013 should be given weight in relation to this appeal; 2. The applicant's cl4.6 requests to contravene the height and FSR development standards under ALEP2013 are well founded, and should be upheld; 3. The proposed transition between Building A and the adjacent dwelling at 3 Lion St should be amended to provide a minimum 3m setback between these buildings to achieve improved amenity and design outcomes; 4. Concurrence should be granted under s138 of the Roads Act for the proposed development to utilise the existing access to the Liverpool Road to the Subject Site; 5. The development as proposed at 1 Lion St and 402 Liverpool Rd Croydon should be approved subject to the provision of amended plans along with revised and agreed conditions of consent

Directions

1. The applicant is to provide amended plans for the design of Building A to provide a minimum 3m setback between the south eastern wall of Building A and dwelling currently occupying 3 Lion St, along with any amendments that are required to associated documentation.
2. The applicant is to file and serve amended plans by no later than Friday 3 November 2017, and the respondent is to file conditions of consent consistent with this judgment by no later than one week following the filing of the amended plans by the applicant. A pdf of the amended architectural plans is to be provided to the Court.
3. Liberty to restore on two days' notice.
4. Orders will be made in chambers.

Addendum made on 20 November 2017

1. In accordance with the terms of directions at [151] of my judgment of 5 October 2017 the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows: 1. The Applicant is granted leave to rely on amended plans. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 10.2016.060, for the demolition of existing buildings and the construction of two multi-storey dwellings (referred to as Buildings A and B) in Croydon, subject to the conditions of consent annexed hereto as Annexure 'A'. 4. The Exhibits are returned, with the exception of Exhibit 1. Michael Chilcott Commissioner of the Court Annexure A (C) (400 KB, pdf)

Amendments 06 October 2017 - Clerical error - paragraph 150 - "IDAP 2103" changed to "IDAP 2013" 20 November 2017 - Addendum at [155] - final orders made and conditions of consent attached. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2017