Hercules St Developments Pty Limited v Ashfield Council

The issues

1. Council contends that the modification application be refused on the basis that: 1. The proposal is not substantially the same as the development for which consent was originally granted given that the proposal will increase the number of apartments and increase the overall height of the building. 2. The proposed building exceeds the development standard for height of 23m in cl. 4.3 ALEP 2013 by 8.0m. The variation to height results in, amongst other things, overshadowing, excessive bulk, and unacceptable impacts on visual amenity when the site is viewed from the public domain. 3. Insufficient on-site parking - a shortfall of three spaces. 4. The proposal exceeds the 3.0:1 floor space ratio (FSR) development standard in cl. 4.4 ALEP 2013 by 0.6:1 resulting in excessive bulk and scale which is incompatible with the desired character of the area. 5. Adverse impacts on aural and visual privacy as a consequence of inadequate setbacks of the proposed common open space from adjoining properties. 6. Not in the public interest as the proposal results in a built form and height that is contrary to the future character of the city centre and incompatible with the existing and future streetscape.

The site and its locality

1. The site is an irregularly shaped lot bounded by Hercules Street (to the east) and Fox's Lane (to the west/ northwest), Ashfield. The old Post Office fronts Hercules Street; the tower component is located to the rear or west of the Post Office building. The site is within 100m southwest of Ashfield Station and less than 100m north of Liverpool Road; it is centrally located in the Ashfield town centre.
2. The site is zoned B4 Mixed Use zone in the Ashfield Local Environmental Plan 2013 (ALEP 2013). There is a significant amount of re-development and transformation occurring within the immediate locality, in the vicinity of Ashfield Station and Ashfield town centre.

The assessment framework

1. The initial development application was approved under Ashfield Local Environmental Plan 1985 (ALEP 1985). ALEP 2013 now applies. Clause 2.3 requires that the consent authority must have regard to the zone objectives when determining a development application.
2. The relevant objectives of the B4 Mixed use zone are:

• 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.

1. Clause 4.3(1) ALEP 2013 provides the Height of buildings objectives.
2. The height of Buildings Map (subcl. 4.3(2)) indicates the site has a maximum height of 23m.
3. Clause (2A) states: If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area.
4. Clause 4.3A provides an exception to the maximum height of buildings in the Ashfield town centre if a specified portion of a residential flat building or mixed use development provides affordable rental housing.
5. The objectives for the FSR development standard are provided in cl. 4.4(1) ALEP 2013.
6. As this is an application made pursuant to s 96 of the EPA Act, a written request for an exception to development standards, in accordance with cl. 4.6 ALEP 2013, is not required.
7. Relevant to the council's position is an understanding of the provisions of (now repealed) ALEP 1985 under which development consent was initially granted. Clause 37A - Conservation incentives - enabled the consent authority to exclude the floor space of a heritage item from its calculation of floor space of the building to be erected on the site for the purpose of determining FSR and the number of on-site parking spaces to be provided - but only if the consent authority was satisfied that the conservation of the building depended on making that exclusion. Clause 54 applied specifically to development at 11-13 Hercules Street, Ashfield - the site. Subclause 54(4) permitted the consent authority to approve an FSR up to 3.0:1 (where 2:1 was otherwise permitted) in mixed use developments if certain requirements were met including requiring the additional floor space to be used for residential purposes and, in general terms, ensuring that the amenity of surrounding development and the public domain was not compromised.
8. Ashfield Development Control Plan 2007 (ADCP 2007) applied at the time of the original determination. Part C9 applied specifically to 11-13 Hercules Street, Ashfield. The objectives of Part C9 were: 1. To set out parameters for the retention of the significant parts of the site, and identify areas which can be developed. 2. To indicate the area where public improvements can occur outside and surrounding the site. 3. To identify matters not found in other parts of planning instruments and which are critical considerations. 4. To set out guidelines for the two broad options for reuse of the site, which amongst other matters take into account the heritage issues raised in any development of the site and its existing buildings.
9. Part C9 ADCP 2007 sets out detailed controls for the two possible options for the site: option 1 being 'majority infill development and part building retention - the option adopted by the applicant. Clause 2.1(c) enables an additional 2 storeys if certain provisions are met and where a community benefit can be demonstrated. Clause 2.1(g) outlines a number of requisite site specific civic improvements.
10. Ashfield Interim Development Assessment Policy 2013 (AIDAP) currently applies and supports ALEP 2013 and complements ADCP 2007.
11. Part C3 AIDAP covers the Ashfield Town Centre. Clause 2 - Building heights permits council to consider a height bonus of up to 7m and up to 2 storeys above the 6 storey limit for development within Area 1 (includes the site) in accordance with cl. 4.3A ALEP 2013 (i.e. provision of affordable rental housing).
12. Section 3 - Part C11 - Parking AIDAP provides the general principles, controls and calculations for parking requirements.
13. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applied to the original consent and applies to this proposed modification. State Environmental Planning Policy No 1 - Development Standards (SEPP 1) applied to the original consent.

The hearing and evidence

1. The hearing commenced on site with an inspection of the site from Hercules Street, Brown Street (to the north of the site and adjacent to the railway line) and from the upper portion of Ashfield Station. As the site is currently under construction, there was no access to the site itself. There were no objectors. The parties' experts - Mr Atalay Bas, council's planner, Mr Danny Jones, the applicant's planner, Mr Rohan Dickson, the applicant's urban design expert, and Mr Alan Cadogan, council's independent urban design expert, assisted during the site inspection. The experts participated in a joint conference and prepared a joint report.
2. During the hearing, and as a consequence of the joint conferencing between the urban designers, the applicant was granted leave to rely on amended plans (Exhibit G). The amended plans modify the roof plan by reducing the length of the plant room and increasing the setback of the balustrade on the western side to 6m by incorporating a 3m wide landscaped area along that side. The intent is to provide greater aural and visual privacy to any future occupants of the adjoining land. The proposed residential level 7 floor plan is amended by providing greater articulation along the northern façade, increasing the setback by between 1.0 and 1.5m on that façade, and reducing unit 44 from 3 bedrooms to 2 bedrooms. The face brick on the 7th floor is replaced with metallic wall cladding and increased glazing within a lighter frame. The intent is to achieve better visual amenity from Brown Street and the station and to reduce the visual bulk of the building. However, the joint report of the parties' experts is based on the plans submitted with the s 96 modification application.

Substantially the same?

1. The experts agree that the approved development provides for:

• The use of the three level former Post Office building component for a ground floor restaurant and 6 residential units above;
• The demolition of the larger building component fronting Fox's Lane and its replacement with an 8 storey building with roof top plant, ground floor café and 46 residential apartments over four levels of basement car parking providing 71 car parking spaces and a loading bay; and
• The new 8 storey building is separated from the former post office by a landscaped courtyard.

1. The experts agree that the proposed modifications to the approved development are limited to part of the 8th storey of the approved Fox's Lane building and new roof top recreation facilities. The s 96 modification proposes the following changes to the approved building:

• Alterations to the approved 8th storey by replacing the approved 1 x 1 bedroom, 1 x 1 bedroom plus study, and 2 x 2 bedroom units (4 units) with 1 x 1 bedroom, 1 x 1 bedroom plus study, 1 x 2 bedroom and 3 x 3 bedroom units (6 units). This extends the floor plate of the 8th storey towards the northern side of the property boundary.
• Relocation of the common open space from the northern side of the approved 8th storey to the roof top or 9th level with the provision of associated access, amenities and plant rooms.
• An increased height by a maximum of 3m at the point of the lift over-run.
• An increase in the footprint of the 8th storey by 203.1m2. The increase in FSR (as per the ALEP 2013 GFA definition) is 0.15:1.

1. The experts also agree that amongst other things, there are no proposed changes to the provision of on-site parking.
2. Having regard to the particular circumstances of this matter and the proposed modifications, it is appropriate to consider the essential elements of the original consent. Mr Bas, council's planning expert in this matter, assessed the original application; his report to council on 10 December 2013 is included in council's bundle of evidence. In my view, he is well-placed to explain the circumstances in which the original consent was granted. The (relevant) reasons for conditional approval are summarised below:

• The proposal attracted a 2 storey (and therefore height) bonus (beyond the prescribed 6 storey limit) on the basis that the applicant incorporated most of the community benefits identified in cl. 2.1(g) of Part C9 ADCP (the site specific DCP). The community benefits include public footpaths, realignment of a road and kerb, and a paved and landscaped standing area for delivery trucks.
• The maximum permitted FSR was 2:1 under ALEP 1985 however 3:1 was permitted for mixed-use buildings where the additional floor space was only to be used for residential purposes and the development did not result in any adverse amenity impacts. The FSR with the heritage item is 3.46:1 and without the heritage item is 2.95:1. While finding the applicant's justification for an increase in FSR under the 'heritage incentives' provisions of cl 37A ALEP 1985 inadequate, the council allowed the increase in FSR of 0.46:1 on the basis of a well-founded SEPP 1 objection.
• While the original proposal required 75 on-site car parking spaces, council permitted the use of cl. 37A heritage incentives in ALEP 1985 to exclude the retail use within the heritage building to enable the provision of 71 spaces; the applicant provided 72 spaces.
• Council's SEPP 65 advisor assessed the proposal. In particular, while the proposed setbacks at various levels did not comply with council's site specific setbacks in its DCP or with the setbacks specified in the Residential Flat Design Code, a number of deferred conditions were imposed to achieve a better design outcome but nonetheless permitted a considerable relaxation of the setback controls, particularly at the upper levels.
• Due consideration was given to issues raised by objectors, in particular possible amenity impacts on future residents of future development of adjoining lots and the development potential of those sites. Section 18 of the report to council provides a detailed assessment of the likely impacts of the proposal on the development potential of adjoining lots. The report recommends that subject to the imposition of a number of conditions, the proposal was acceptable in terms of impacts on adjoining sites. [Section 24.1 of the report provides a detailed summary of the submissions and council's response to them].
• As required by s 79C (EPA Act) the proposal was assessed against the then draft ALEP 2013, while found to be non-compliant with the height of FSR controls in that draft instrument, the council determined that the concessions made under ALEP 1985 were appropriate in the circumstances.

1. The report to council concludes: The proposed development is generally acceptable subject to design changes which address building setbacks and façade treatment and the submission of further detailed information. It is acknowledged that this is a difficult site to develop given its dimensions and configuration and the desire to retain and adaptively reuse the former Post Office building. In the light of this, the additional FSR sought is acceptable and with further amendments proposed through the deferred commencement conditions the proposal is an acceptable response to Council's site specific planning controls and will enhance the Hercules Street precinct and greatly improve pedestrian connectivity in the Town Centre. The proposal is therefore recommended for conditional approval.
2. In the joint report, only Mr Bas and Mr Jones comment on whether the proposal is substantially the same as the original consent. Mr Jones opines that given the agreed facts (see [27]-[29] above), the development is substantially the same. No further written explanation is provided. Under cross-examination, Mr Jones agrees that while the proposal doesn't meet the current development standards, he relies on the requirements of s 79C and the impacts arising from the modification, which in his opinion are minor overshadowing of a road and others capable of resolution through the imposition of appropriate conditions.
3. Ms Bas is of the opposite view because in his opinion, the proposed modifications increase the height and floor space, the increased accommodation will generate more traffic and waste, the impacts of which are unknown, and will require more on-site parking. He maintains that the original determination was to ensure that the design achieved appropriate setbacks and articulation. He states in comment (3) in the joint report that: The original approved scheme was approved with variation to Fox's Lane setback requirements on the basis that there will be increasing of building setbacks towards the upper levels and [in] particular at its highest point of the building and keeping the height of the building to a minimum at Fox's Lane. The original scheme followed the fall of the land and respected the topography thus reducing its height where it matters the most.
4. In Mr Bas' opinion, the proposed changes undermine the intent of the original approval. The importance of the balance between height, bulk and scale in achieving an acceptable interface with the public domain, particularly along Fox's lane, is reiterated by Mr Bas throughout the joint report.
5. In oral evidence Mr Bas maintained his opinion and pressed the detailed assessment of the original consent. Under cross-examination he stated that while the approved development provides community benefits, there are no community benefits, such as provision of affordable rental housing specified in ALEP 2013, anticipated by the modified proposal. Mr Bas remained firmly of the opinion that the modified proposal is not substantially the same as the original consent and that the added bulk, height and scale are unacceptable.

Consideration

1. Before considering the specific issues raised in contentions 2-6, I must deal with the jurisdictional issue raised by s 96(2) of the EPA Act as it is determinative of the appeal. If the application fails this jurisdictional test, I have no power to grant a consent to the application even if I determine that the modified plans merit consent.
2. Section 96(2) states: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification.
3. In Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 at [54] to [56], [61] and at [62] and [64] (in part) Bignold J states: 54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted) [emphasis added]. 61. Because the requirement of s 96(2)(a) calls for an ultimate factual finding on the primary facts of the case, only illustrative assistance is to be gained from consideration of other cases involving their own factual findings on the relevant satisfaction required by s 92(2)(a)(or its antecedent, s 102(1)(a)). 62. Reference to those cases indicates that environmental impacts of proposed modifications are relevant to the ultimate factual finding… 64. Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential….
4. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J states: Turning to the issue of s. 102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion 'substantially' when used in this section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that the modified development is substantially the same, see [citations omitted].
5. Mr Seymour for the applicant, contends that on undertaking the requisite comparison exercise, the proposed modification is substantially the same as the originally approved development and not a 'radical transformation' as considered in Tipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253 and Randall v Ashfield [2014] NSWLEC 1034. He submits that quantitatively the change is an addition of two units and qualitatively it remains a residential flat building. Mr Seymour argues the Court should dismiss Mr Bas's evidence as unreliable because of what he says is the 'partisan' nature of it and his unwillingness to 'let go' of his interpretation of certain clauses of ALEP 2013.
6. Much of the council's case rests on the concessions that were made when the original development application was being assessed. Ms McCullough for the council maintains that the concessions were significant and the design outcome was considered acceptable, in particular, in regards to setting the top floor back so that it would not present as a full additional floor at critical elevations. In rejecting Mr Seymour's criticism of Mr Bas, Ms McCullough contends that Mr Bas' comments in the joint report and in oral evidence go directly to Bignold J's consideration in Moto at [56] and which were not considered by Mr Jones. She presses the finding in Council of Trinity Grammar v Ashfield Council [2015] NSWLEC 1086 at [109] where Dixon C considered that the s 96 process should not be used to allow incremental change where the essential element of the original consent is changed. In addition, Ms McCullough submits that the proposal is an intensification of use as the increase in the number of units, results in an increase of at least 6 bedrooms.
7. On the face of it, the proposal to add an additional two units to an approved development comprising 46 units appears minor, however, the proposal effectively adds another floor to the approved development by relocating the communal open space and associated structures to the roof top. The reconfiguration of the eighth storey extends the roof form to almost the full extent of the northern façade, the façade most likely to be viewed from the public domain of the nearby Ashfield railway station.
8. Quantitatively the proposal increases the area of habitable floor area by about 208m2. Despite the method of calculating FSR having changed as a consequence of the replacement of ALEP 1985 with ALEP 2013, both the approved development and the proposed modifications exceed the applicable controls. The roof top structures and extended lift over-run increase the overall height of the approved development by some 3m.
9. In regards to height, while there were no height limit controls applying to the site under ALEP 1985, the site-specific Part C9 of ADCP 2007 set a maximum of six storeys and allowances for lift shafts and other plant. An additional two storeys or maximum building height of RL 54.1 was allowed where a community benefit could be demonstrated. The current controls in ALEP 2013 set a height limit of 23m in Zone B4. Clause 4.3A ALEP 2013 enables an increase in building height to no more than 30 m on the proviso that the development includes affordable rental housing, which in this case it does not. While developments standards do not strictly apply in modification applications (Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157), FSR and height considerations were fundamental to the circumstances in which the original development proposal was assessed and determined, as required by s 79C of the EPA Act..
10. Qualitatively the proposal before the Court provides no additional community benefit, particularly in the way envisaged by the current controls, and adds bulk and height to the approved development at a point which was identified as being the most elevated portion of the building and which is clearly visible from the public domain.
11. In borrowing from Tipalea at [39] and [40] and Moto at [56] and [64], in this case, while the development remains a mixed use development, there is evidence that the height, bulk, scale and setbacks of the building - particularly at the upper levels, together with the provision of public benefits, were 'important and material' features of the original consent and the circumstances in which the development consent was originally granted deserve considerable weight.
12. I accept Mr Bas' evidence that the circumstances in which the development consent was granted, as summarised in [30] and [31] of this judgment, illustrate that the applicant obtained the full benefit of an increase in height and FSR by providing sufficient public benefits and that relief on the extent of normally applicable setbacks, including at the upper levels, was granted because at the time, the original proposal was deemed to be an acceptable response to council's site specific controls. Both the public benefit and the setbacks were 'important and material' features of the original consent (Moto at [64]). I also find that the applicant has not adequately demonstrated that the modification is substantially the same (Vacik as cited in [41] of this judgement). In this regard I accept Ms McCullough's submissions.
13. On this basis I find that the modified development as proposed is not substantially the same as the development originally approved in 2013. As s 96(2) is not satisfied, I therefore have no jurisdiction to consider the proposal on its merits.
14. As a consequence, the Orders of the Court are: 1. The appeal is dismissed. 2. Modification Application 10.2013.176.3 lodged on 6 March 2015 to modify Development Consent 10.2013.176.1 granted on 10 December 2013 by adding two units on level 7 and a roof-top outdoor area, 11-13 Hercules Street, Ashfield, is refused. 3. The exhibits are returned.

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Judy Fakes Commissioner of the Court

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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: 18 September 2015