HGM Corp Pty Ltd v Sutherland Shire Council

Land and Environment Court (NSW)|2020-05-26

Introduction

COMMISSIONER: This is an appeal against the deemed refusal by the Sutherland Shire Council (Council) of the development application DA18/0871 (the DA) for land at 347 - 357 Port Hacking Road, Caringbah (the subject site). The DA as originally submitted to Council sought consent for the demolition of existing structures and construction of a six-storey mixed use development comprising one ground floor commercial/retail space, 19 residential units and 25 parking spaces over two basement levels.

Background

The DA was originally submitted to Council on 20 July 2018 and advertised for public submissions from 7 August 2018 to 22 August 2018. One objection, on behalf of the operator of the adjoining Caringbah Hotel, was received (part of Council's bundle of documents, Ex 1, at folio 39-44). Council's Design Review Forum Panel considered the DA in early October 2018, resulting in a report dated 11 October 2018 (Ex 1, folio 49-51). By letter dated 3 January 2018 Council informed the architect for HGM Corp Pty Ltd (the Applicant) that Council could not support the proposal in its current form, and that the Applicant should withdraw the DA (Ex 1, folio 52-56). Council also requested in the same letter that additional information be provided.

The proposal

These proceedings relate to the Further Amended DA filed with the Court on 27 April 2020 for the demolition of existing structures and construction of a six storey mixed use development comprising two ground floor retail spaces, 17 residential units and 23 car spaces over two basement levels. The main changes between the Further Amended DA architectural plans (Revision M) prepared by ADS Architects dated 30 April 2020 (Ex C) and the original DA plans also prepared by ADS Architects dated 24 November 2016 (the Revision G plans) are: 1. The building setback from Port Hacking Road on Levels 2 and above has been increased from zero metres to a minimum of 4m (including balconies). 2. The setback from the southern boundary to the Right of Carriageway (ROC) adjoining has been increased from zero metres to 1.86m on all levels, other than the basement levels. The setback is to allow for a new 1.8m wide pedestrian path. 3. The residential apartment layouts have been amended to accommodate the increased setbacks. As a result of the changes, the number of apartments has decreased from 19 to 17. 4. The vehicular access to the basement car park has been relocated from the Port Hacking Road frontage at the south east corner of the subject site, to the north-west corner where it is accessed off the ROC, adjacent to the neighbouring hotel. The loading dock access has been relocated to the ROC, independent of the basement parking access. The number of basement parking spaces has been reduced from 25 to 23 as a result of the reduction in the number of apartments. 5. The area of ground floor retail space has been increased slightly and split into two spaces, one on either side of the centrally located residential lobby. The glazing of the retail space in the south-east corner of the building now 'wraps around the corner' and along a portion of the ROC frontage. 6. The amount of common open space on Level 2 has been reduced and the amount of common open space on Level 5 increased, resulting in a minor net reduction in the total area of common open space.
For the reasons set out in this judgment the proposed development, as amended, is acceptable for this site, subject to conditions. In reaching this decision, I have taken into consideration the written evidence of the town planning experts Mr Andrew Robinson (for the Applicant) and Mr Mark Carlon (for the Council) as set out in their Joint Planning Report and Supplementary Joint Planning Report that together comprise Ex 3, and their oral evidence; the traffic engineering experts Mr Kenneth Hollyoak (for the Applicant) and Mr James Gogoll (for the Council) as set out in their Joint Traffic Report (Ex 5), their Supplementary Joint Traffic Report (Ex 4) and their oral evidence; the written evidence of the stormwater engineering experts Mr Joe Bacha (for the Applicant) and Mr James Gogoll (for the Council) as set out in their Stormwater Engineers Expert Witness Joint Report dated 13 May 2020 (Joint Stormwater Report) (Ex 6) and their oral evidence, and other plans and reports tendered in the proceedings, and in particular the Further Amended DA architectural plans (Ex C), the "Master planning Options proposal" set of drawings prepared by ADS Architects, dated 30 April 2020 (Ex D); the "Amended Statement of Environmental Effects", dated 4 February 2020 (Amended SEE) prepared by Andrew Robinson Planning Services Pty Ltd and included in the bundle of documents in Ex B; and the "Photographs, Title Searches, Deposited Plans and Company Searches" (Ex F).
I have also taken into consideration the relevant matters of the various statutory instruments and matters for consideration under s 4.15 of the EP&A Act, and had regard to the written objection dated 19 September 2018 made on behalf of the ALH Group, the operator of the adjoining Caringbah Hotel, included in the Council bundle of documents (Ex 1), my own observations of the subject site and its environs taken at the site view on 17 September 2019, and the Parties' submissions in the hearing.

The site and setting

The subject site comprises one allotment of land on the western side of Port Hacking Road approximately 40m south of its intersection with the Kingsway, at Caringbah. The land is legally described as Lot 2 in DP 529640. The address of the property is 347 to 357 Port Hacking Road. The subject site has an irregular shape, with an eastern street frontage of 31.97m, southern boundary to the ROC of 28.97m, western boundary, also to the ROC, of 9.55m and northern side boundary to the adjoining Caringbah Hotel of 39.625m. The Amended SOFC specifies the subject site's area, based on the DP, as 701.9m2.
The subject site is a beneficiary of a registered easement for a 6.096m (20 foot) wide Right of Carriageway (the ROC) over the adjoining Lot 1 in DP 540831, being the 6,308m2 irregular shaped lot accommodating the Caringbah Hotel, Dan Murphy's bottle shop and associated at grade parking area (Caringbah Hotel site). The ROC also provides legal and physical vehicular access to the rear of other properties to the south of the subject site, between 359 and 375-387 Port Hacking Road.
The subject site is occupied by a part single storey and part two storey brick building, which appears to have been constructed in the late 1960's or early 1970's after the land was subdivided in 1968. The ground level is occupied by various retail tenancies and the upper level facing Port Hacking Road is used as commercial premises. There is space for one car to park at the rear of the property and accessed off the ROC. No on-site loading area is available. The subject site is unvegetated, covered entirely in hard surfaces and has a gentle fall of approximately 1 metre at a 1-2 degree gradient from Port Hacking Road to the rear. Stormwater from the subject site currently drains in part to the Port Hacking Road street frontage and in part by discharging direct to the ROC and then via the laneway surface to an existing Council pit to the south-west of the subject site. There is no easement for drainage over the ROC or other part of the adjoining Caringbah Hotel site.
The subject site, its context and relationship to other properties in the locality are illustrated on the photographs in Exhibit F and are described in the Amended SEE (Tab 2 in Ex B). An aerial photograph of the subject site and surrounds, being Figure 2 in the Amended SEE is reproduced below. Of particular relevance to this matter is the relationship of the subject site to the Caringbah Hotel to the north-west and the triangular-shaped Memorial Park to the north, at the intersection of Port Hacking Road and the Kingsway.

State Environmental Planning Policy No 55 - Remediation of Land

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), specifies at cl 7 that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if so whether the land is suitable in its contaminated state or can and will be made suitable by remediation for the purpose for which the development is proposed.
The Applicant submitted a Preliminary Site Assessment report prepared by Australian Geotechnical Pty Ltd, dated 16 December 2016 ( part of Ex A) which found that the risk of groundwater and soil contamination is low to moderate, that the subject site can be made suitable for the proposed development subject to the preparation of a Stage 2 (DSI) Environmental Site Assessment. Council's Environmental Assessment Officer considered the Preliminary Site Assessment report and advised, by Internal Memorandum dated 25 February 2020 (Ex 1, folio 94-96), that the subject site is not listed in Council's contaminated land register, that the risks of contamination were low and could be addressed by precautionary conditions of consent. Satisfaction of the provisions of SEPP 55 is not in contention in these proceedings and are addressed in the conditions of consent. The relevant provisions of SEPP 55 have therefore been adequately considered and satisfied.

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

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and its associated Apartment Design Guide (ADG) seek to improve the quality of design of residential flat buildings of three storeys or more in height. SEPP 65 includes 9 quality design principles and the ADG sets out more specific design objectives and criteria. There is no contention between the Parties nor any evidence to suggest the development is not acceptable in terms of satisfying SEPP 65 or the ADG.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) aims to encourage sustainable residential development through the incorporation of sustainable design and building measures to achieve more water and energy efficient buildings. It includes an on-line program administered by the New South Wales (NSW) Department of Planning Industry and Environment that assesses a residential development against water, thermal comfort and energy reduction targets. Designs must meet or exceed these targets before a BASIX Certificate can be issued. In this case an amended BASIX Certificate (Certificate number: 782732M_04 dated 11 May 2020) was filed with the Court on 14 May 2020. This demonstrates that the provisions of SEPP BASIX have been satisfied and this is not in dispute between the Parties.

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) includes, amongst other things, provisions relating to development in or adjacent to road corridors and road reservations. Clause 102(3) of the SEPP Infrastructure potentially applies as the subject site is located near to a classified State Road that carries in excess of 20,000 vehicles per day. In this case The Kingsway carries in excess of 20,000 vehicles per day and is located approximately 40m from the subject site. Under cl 102(3) the consent authority must not grant consent to residential development that it considers could be adversely affected by road noise or vibration "…unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded - (a) in any bedroom in the residential accommodation - 35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time.
An Acoustic Report - Traffic Noise prepared by Acoustic, Vibration and Noise Pty Ltd and dated 1 June 2018 (part of Ex A) was submitted with the original DA. It concluded that the proposed development, if carried out in accordance with the plans and specification and including the recommendations in the report, will meet the noise reduction levels required in cl 102 of the SEPP Infrastructure and other relevant guidelines, Australian Standards and the Sutherland Shire Development Control Plan 2015 (the DCP).
Satisfaction of the provisions of SEPP Infrastructure is not in contention in these proceedings, and I am satisfied that the provisions of cl 102 have been adequately considered and noise mitigation is addressed in the conditions of consent.

Sutherland Shire Local Environmental Plan 2015

The subject site is located within the Zone B3 - Commercial Core (B3 Zone) pursuant to the provisions of SSLEP 2015. The land adjoining and in the immediate locality is also within the B3 Zone, except for Memorial Park which is zoned RE1 Public Recreation. The proposed "mixed use" development, comprising "commercial premises" (which includes "retail premises") and a "residential flat building", is permitted with consent in the B3 Zone.
The Council nominated in its Amended SOFC twelve particular provisions of SSLEP 2015 as relevant to this application, as identified in [27]-[0] following.
Clause 1.2 Aims of the Plan. The relevant particular aims in cl 1.2(2) provide: (2) The particular aims of this Plan are as follows - (a) to deliver the community's vision for Sutherland Shire by achieving an appropriate balance between development and management of the environment that will be ecologically sustainable, socially equitable and economically viable, (b) to establish a broad planning framework for controlling development, minimising adverse impacts of development, protecting areas from inappropriate development and promoting a high standard of urban design, (c) to protect and enhance the amenity of residents, workers and visitors in all localities throughout Sutherland Shire, (d) to minimise risk to life, property and the environment from hazards, particularly bush fires, flooding and climate change, (e) to concentrate development in localities with adequate infrastructure that is accessible to transport and centres, … (g) to conserve, protect and enhance the environmental and cultural heritage of Sutherland Shire, … (i) to meet the future housing needs of the population of Sutherland Shire.
Clause 2.3 Land Use Zone Objectives. The objectives of the B3 Zone as set out in the Table at the end of Part 2 of the SSLEP 2015 are: Zone B3 Commercial Core 1 Objectives of zone • 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.
Clause 2.7 Demolition. Demolition may only be carried out with development consent. The Further Amended DA seeks consent for demolition as part of the application.
Clause 4.3 Height of Buildings. The maximum permissible height for a building on the subject site is 20m, as shown on the SSLEP 2015 Height of Buildings Map. The planning experts in their Joint Planning Report (Ex 3) agree that the Further Amended DA results in a maximum building height of 20m to the lift overrun and that the development is compliant with this development standard.
Clause 4.3(2E) of SSLEP 2015 makes provision for greater building heights for specific locations as shown on the Height of Buildings Map - Subset of Sheet HOB_001FA (Height Map) (part of Ex 1, Tab 2). The Height Map identifies an area of land comprising the subject site and the northern portion of the adjoining Caringbah Hotel land as Area 2 to which Clause 4.3(2E)(b) applies (Area 2). The portion of the adjoining Hotel Caringbah site identified as Area 2 on the Height Map shows a height limit of 20m, the same as that applying to the subject site. For the southern portion of the Caringbah Hotel site beyond Area 2 the maximum building height is 16m, as is the land south of the subject site facing Port Hacking Road.
Clause 4.3(2E)(b) applies to the Area 2 land and provides for potential additional building height, as follows: (2E) Despite subclause (2), the height of the following buildings may exceed the maximum height shown for the land on the Height of Buildings Map by an additional amount specified below, but only in the circumstances so specified - (b) a building on land identified as "Area 2" on the Height of Buildings Map may exceed that height by 15 metres if there is to be a lot amalgamation and the development provides pedestrian access through the land from Port Hacking Road to President Avenue, Caringbah.
Clause 4.4 Floor Space Ratio (FSR). The maximum FSR for the subject site is 2.5:1 which permits a maximum Gross Floor Area (GFA) of 1,754.75m2 (based on the DP site area). The planning experts in their Joint Planning Report (Ex 3) generally agree that the plans attached to their Joint Planning Report indicating the areas excluded from the GFA are in accordance with the definition of GFA in SSLEP 2015. There is no dispute between the planners that the proposed development is compliant with the FSR development standard.
The FSR of the adjoining Hotel Caringbah site is relevant to consideration of the amalgamation issues in contention. Just as there are two different height limits applying to the Hotel Caringbah land, there are two different FSR limits, as shown on the FSR Map of SSLEP 2015. The maximum FSR applying to land on the northern portion within Area 2 is 2.5:1 and to the southern portion the maximum FSR is 2.0:1.
Clause 5.10 Heritage. In written submissions, Ms Amy for Council suggested that cl 5.10(5) of SSLEP 2015 requires an assessment of the impact of the proposed development on heritage items in the vicinity, and in this case Memorial Park is such an item. Clause 5.10(5) provides that the consent authority may, before granting consent, require a heritage management document be prepared that assesses the extent to which the proposed development would affect the heritage significance of a heritage item in the vicinity. A heritage impact assessment was not provided with the application. Council's Senior Heritage Architect, however, considered the impact of the proposal on Memorial Park and reported in an internal memo included in Council's bundle (Ex 2, folio 34) that the development works were acceptable, although the "landscape and mature trees in proximity of the development warrant careful management". Based on this assessment and the fact that heritage impacts are not in contention in these proceedings I find there is no need for the preparation of a heritage management document or further assessment of heritage impacts, and that cl 5.10(5) is satisfied.
Clause 6.2 Earthworks. This includes at cl 6.2(3) a list of matters arising from any earthworks associated with development that are to be considered by the consent authority in deciding whether to grant consent. In this case the associated earthworks primarily relate to the basement excavation work, and they have been duly considered in the Geotechnical Investigation report prepared by Australian Geotechnical Pty Ltd, dated 16 December 2016 (part of Ex A). This also is not in contention in the proceedings.
Clause 6.4 Stormwater Management applies to the B3 Zone. Clauses 6.4(1) and (3) provide: 6.4 Stormwater management (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. … (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.
Stormwater management is the subject of evidence provided by the stormwater engineering experts, as discussed later in this judgment.
Clause 6.16 Urban design - general. Clause 6.16(1) sets out a list of urban design matters to be considered by the consent authority in deciding whether to grant consent to any development, and I have considered these matters. Clause 6.16 relevantly provides: 6.16 Urban design - general (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, …"
Clause 6.17 - Urban design - residential accommodation. This clause sets out a list of urban design matters to be considered by the consent authority in deciding whether to grant consent to development involving residential accommodation, and I have considered these matters. Clause 6.17 provides: 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.

Sutherland Shire Local Environmental Plan 2015

Whilst Development Control Plans are not statutory environmental planning instruments they are a relevant matter for consideration under s 4.15 of the EP&A Act in assessing and granting consent to any development application. In this case Sutherland Shire Development Control Plan 2015 (the DCP) is a matter for consideration. Of particular relevance and referred to in the Amended SOFC (Ex 2), are Chapter 18 - B3 Commercial Core Caringbah; Chapter 36 - Vehicular Access, Traffic, Parking and Bicycles; Chapter 38 - Stormwater and Groundwater Management; and Chapter 39 - Natural Resource Management.

Contentions

The Amended SOFC filed on 6 March 2020 (Ex 2) predates the Further Amended DA which took into account the Joint Planning Report and matters raised in the Amended SOFC. After certain matters were resolved through the provision of additional information or the work of the joint experts, the number of contentions pressed were significantly narrowed. The following contentions were either resolved, or where pressed in part were 'rolled into' the key issues explored in the hearing. 1. Contention 2. Bulk and Scale (building height and FSR), 2. Contention 3. Streetscape and Built Form, 3. Contention 4. Active Street Frontage, 4. Contention 5. Apartment Design and Residential Amenity, 5. Contention 6. Vehicle Access, Parking and Manoeuvrability, 6. Contention 7. Waste Management, 7. Contention 9 Matters Raised in Public Submissions, and 8. Contention 10. Inadequacy of Information
In opening submissions Ms Amy for the Council particularly identified amalgamation and construction management as the remaining issues needing to be determined by the Court. Stormwater management and the urban design issue of treatment of the northern façade's "blank wall" also emerged as specific contentions. Essentially the four main issues can be summarised as: 1. Amalgamation issues (Contention 1 of the Amended SOFC), which encompasses the Council's vision for the Caringbah Centre, as detailed in Chapter 18 of the DCP, and the consequences of developing the subject site and adjoining Caringbah Hotel site in isolation of one another, contrary to the amalgamation pattern in the DCP. 2. The urban design and visual amenity issues arising from the "blank wall" on the northern façade of the proposed building (Contention 3 (b) of the Amended SOFC). 3. Stormwater management (Contention 8 in the Amended SOFC), which primarily focuses on the proposed stormwater concept design of diverting water to an unrelated catchment, contrary to the provisions of clause 2.3 of Chapter 38 of the DCP. 4. Construction management (part of Contention 9 - public submissions and Contentions 10 (f), (g), (h) and (i) - including works within the ROC and obstruction of vehicular access along the ROC.

Amalgamation / development of the site in isolation

The Council in opening submissions set out numerous particulars relating to the failure to develop the subject site in amalgamation with the adjoining Caringbah Hotel site. Council specifically claims that failure to develop the two properties as a single amalgamated site: 1. "leaves the proposed development in isolation"; 2. "breaks the preferred amalgamation plan" (the Caringbah Centre Amalgamation Plan at p 28 of Chapter 18 of the DCP); 3. "constrains the development potential of the adjoining property", by denying that property "the ability to obtain the additional height and leaves an odd shaped lot difficult to develop to its full potential"; 4. will "adversely impact on Council's vision to create a prominent landmark development to revitalise the Caringbah Centre and enhance the public domain"; 5. creates a built form inconsistent with the desired future character of the Caringbah Centre's commercial core, as well as the desired future scale and character of the street and locality. In particular the large blank wall on the northern elevation is identified as a poor urban design outcome that will be prominent from major roads, pedestrian areas and the heritage park "for an indefinite amount of time"; 6. compromises design outcomes for the subject site resulting in an undesirable and poor design outcome, including the "suboptimal" design of a northern elevation blank wall which fails ".. to optimise amenity for future residents by avoiding northern light and views to the city to the north." 7. "…results in the Proposed Development having inefficient maneuvering (sic) and pedestrian flows around the…subject site", 8. "...fails to contribute to the future role and character of Port Hacking Road as an outdoor dining/café precinct."
The Council's vision and strategic planning initiatives for the Caringbah town centre, including its plan for site amalgamations, are set out in Chapter 18: B3 Commercial Core Caringbah (Chapter 18) of the DCP (Ex 1, Tab 4). The "Centre Aims" at p 1 of Chapter 18 are to: "1. Encourage the revitalisation of Caringbah Centre through mixed use redevelopment and an increased residential population. 2. Promote the revitalisation of the commercial activity of the centre by encouraging a specialisation in medical businesses and services. 3. Improve the pedestrian amenity of the centre by enhancing pedestrian connectivity with new and improved pedestrian areas. 4. Develop distinct street characters: a. Port Hacking Road is envisaged to be have a traditional high street form and function as an eat street. … 5. Develop quality medium and high density residential development above commercial premises development, taking advantage of city views while maintaining amenity, even on busy streets. 6. Promote the revitalization of the centre with large scale developments creating focal points in some locations."
Each section of Chapter 18 contains objectives and controls for the Caringbah Centre, by subject matter. Streetscape and built form are addressed in clause 4.0. The "Caringbah Potential Built Form Plan" at p 10 of Chapter 18 of the DCP reproduces the SSLEP 2015 height limit of 20m for the subject site, with additional cross hatching identifying that "Building height only shown. No building envelope shown". For the adjoining Caringbah Hotel site an asterisk marks the indicative location of a taller building of up to 30m (sic) on the north-west corner of that property, facing The Kingsway.
Section 5 of Chapter 18 provides "Guidelines for Specific Sites" including at 5.5 (page 13) the design guidelines for e. the "Caringbah Hotel amalgamated site; 345, 347- 357 Port Hacking Road". The "Detail Plan" for this amalgamated site is reproduced below. Relevantly it shows: 1. The indicative location of a taller building of up to 35m, which is 5m taller than that noted on the "Caringbah Potential Built Form Plan" at page 10 of Chapter 18, but consistent with cl 4.3(2E) of SSLEP 2015. 2. A vehicular access route consistent in its location with the ROC easements from Port Hacking Road and turning south along the rear of the adjoining Port Hacking Road properties. The "Detail Plan" shows the vehicular route dimensioned on the plan as 7m in width. 3. A pedestrian access route from Port Hacking Road along the ROC in a westerly direction before turning north across the hotel carpark to connect to the eastern end of Burns Lane. Currently there is no formal, legal public access across the Caringbah Hotel site, although a 'de facto' link between Port Hacking Road and Burns Lane appears to operate informally. 4. A triangular-shaped "landscaped setback" designed to mirror the Memorial Park space and create a new public square (future Square).
The explanatory statement and design guidelines at clause 5.5 of Chapter 18 are reproduced in full below: "The Caringbah Hotel site is of major importance to the future character of Caringbah centre. The hotel is positioned at the highest point in Caringbah at the intersection of President Ave, the Kingsway and Port Hacking Road and is highly visible. At present the hotel does not contribute greatly to the vitality of the public domain. The subject site adjoins the Memorial Park, a triangular park incorporating the footpath. The atmosphere and use of the park is much affected by traffic on adjacent roads, but recent planting of large eucalyptus trees will improve the park's landscaped quality. The existing Caringbah Inn (sic) benefits from a very large site. The available floor space ratio gives the site substantial development potential in combination with the adjacent lot to the east. Redevelopment of the Caringbah Inn site and the adjoining site on Port Hacking Road has the potential to create an entertainment and landscape focus for the centre, while also providing a landmark building that can redefine Caringbah Centre. Bonus height has been allowed in the LEP to achieve this end. The amalgamated site has additional height allowed up to 35m (11 st), subject to achieving the design guidelines. The Building Envelope Plan shows the preferred location on President Avenue for the tallest part of a redevelopment. The area of the site which can be developed with a 35m building is limited by the maximum permissible floor space ratio, and subject to amalgamation with the neighbouring site on Port Hacking Road. (Emphasis added). There is potential for the redevelopment of this site to make the Memorial Park a more significant space by realigning development on the subject site. The building envelope plan illustrates an optimal arrangement of north facing residential flat buildings around a large north facing outdoor space. This arrangement allows more street edge thereby creating more retail/restaurant frontage. Restaurants and the hotel could spill into the outdoor dining space shaded by trees. This potential outdoor dining precinct would provide increased vitality to the centre and contribute to the desired future character of Port Hacking Road as an "eat street". The development of the internalised part of the site can be achieved by creating a laneway through the site. This would allow for the efficient servicing of buildings and also create an address for the internalised building. This lane can also rationalise access to properties on Port Hacking Road that currently have easement for access as well as formalising future access to Burns Lane. 5.5 Design guidelines for development of this site 1. Development of the site with the bonus height up to 35m (11st) is contingent on amalgamation of lots in accordance with the Amalgamation Map. 2. Provide a minimum 4m landscaped setback which complements Memorial Park. 3. Provide additional landscaped setback adjacent to Memorial Park to formalise the park as a square. This plaza area can remain in private ownership. The space could provide an outdoor area which would read as a continuation of the public park but it would be more removed from the adverse impacts of traffic. The space would be ideal for outdoor eating. 4. Ensure adequate solar access is maintained to adjoining public domain and adjacent developments. 5. Provide public pedestrian access across the site from Port Hacking Road to Burns Lane. 6. Development should acknowledge the lower scale and different character of Port Hacking Road and provide a transition in height between the new development and the lower buildings on Port Hacking Road. The maximum allowable height for Port Hacking Road generally is 16m (4st)."
Section 6 of Chapter 18 sets out the "Amalgamation Requirements" of the DCP The objectives of the Amalgamation Requirements at clause 6.1 are: "6.1 Objectives 1. Ensure that redevelopment does not isolate lots or prevent land parcels from reaching their redevelopment potential while meeting the standards in SEPP 65 - Design Quality of Residential Flat Development. 2. Ensure that amalgamated land parcels allow for the development of built forms that make a positive contribution to the spatial definition of the street and create or maintain amenity for existing and future occupants. 3. Ensure that efficient and safe car park and vehicle entry points can be achieved."
The controls at clause 6.2 begin at Control 1 with the premise that development is "…to follow the identified amalgamation pattern." The DCP, however, explicitly recognises that this may not always be possible by allowing, at Control 3: "If an application proposes a redevelopment that does not comply with the amalgamation plan or where a proposal in the Caringbah Centre would result in an isolated site with minimum street frontage of less than 20 metres, the applicant must submit to council with the development justification to vary the amalgamation pattern requirements."
Control 4 in clause 6.2 of Chapter 18 provides further guidance in how development may be "carried out in an orderly manner." It provides (at p 27 of Chapter 18 of the DCP) for circumstances where a development does not comply with the amalgamation plan, as follows: "If an application proposes a residential flat development that does not comply with the amalgamation plan, the applicant must demonstrate that development of an alternative amalgamation pattern can be achieved where all sites can achieve their full development potential. A schematic design must show that development of land under an alternative amalgamation pattern complies with SEPP 65 and the Apartment Design Guide standards. The assessment of any proposal to vary the amalgamation pattern will include consideration of the impact of the proposed development on the future capacity of lots left isolated. Note: Applications seeking to vary the amalgamation plan must include copies of correspondence between the proponent and the owners of any sites not incorporated in the designated amalgamation pattern or the owner of any site that would be isolated by the proposed development. The correspondence must clearly indicate that a fair financial offer has been made to that owner for incorporation into the development proposal (based on 3 valuation reports provided with the submission) and any response to these offers … Where it has been shown that reasonable efforts have been undertaken to facilitate amalgamation of the isolated properties, and where no resolution can be reached between the parties, applicants must include with their development application a plan of adjoining lots excluded from the amalgamation which shows a schematic design of how the site/s may be developed. In such instances isolated lots are not expected to achieve the full FSR permissible in the zone." (emphasis added).
In Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas), Commissioner Tuor at [17] referred to the Planning Principles relevant to dealing with amalgamation of sites or when a site is to be isolated through redevelopment. Tuor C held: "The general questions to be answered...are: • Firstly, is amalgamation of the sites feasible? • Secondly, can orderly and economic development of the separate sites be achieved if amalgamation is not feasible?"
In applying these principles to this case in answer to the first question, I have examined the evidence associated with the endeavours made by the Applicant to amalgamate the two properties. Mr To submitted there "is at least the possibility that the balance of the Hotel Site may not be developed for some time. This is consistent with the owner and current tenant's refusal to entertain any sale or joint venture redevelopment, as well as the tenure of the tenant". In support of this claim the following correspondence was tendered: 1. A letter dated 13 October 2015 from Laundry Hotels (Tab 6 Ex B), representing the owner of the adjoining land, stating "We confirm that one of our related companies owns the Caringbah Inn at 343 Port Hacking Road, Caringbah ("the Property") and that the Property has been leased for a period of 25 years with a further three option periods of 15 years each. Therefore, we are not in a position to offer the Property for sale or enter into a joint venture agreement...". 2. A letter dated 3 April 2020 from Michael Chen on behalf of the owners of the subject site (part Tab 10, Ex E) to Laundy Trading (Bristol Arms) Pty Ltd, the registered owner of the Caringbah Hotel site, offering to either purchase the hotel land "(at a reasonable price to be negotiated)" or "enter into a joint venture to consolidate the sites and redevelop them as one landmark development." 3. An email dated 7 April 2020 from Jarrod Kennedy (part Tab 10, Ex E) in response to the Chen letter dated 3 April 2020. In that letter Mr Kennedy, who Mr To advised is the in-house counsel for Laundy Hotels, states "Unfortunately neither the owner or the tenant are prepared to sell the property or enter into a joint venture."
Based on this correspondence, I find that the Applicant has demonstrated it has attempted to purchase the adjoining land or enter into a joint venture with the owners to redevelop the two sites as preferred in the DCP, but was unsuccessful in doing so.
The correspondence tendered suggests that due to the unwillingness of the owner and/ or lessee and the long term nature of the hotel lease and options, it is unlikely that amalgamation will occur for potentially some considerable time. Mr Carlon in oral evidence agreed that with a lease period and renewal period extending potentially to 2082, this was an abundant reason why the site cannot be amalgamated.
Tuor C in Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189 provides guidance in how the second question might be applied. In that case Tuor C states (at [34]): "… the key principle is whether the both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum lot size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road."
Development of the subject site in isolation is feasible as evidenced by the Further Amended DA which I find to be acceptable. This is despite the substantially smaller size of the subject site compared to the Caringbah Hotel site. It satisfies the C3 Zone objectives, the land uses are permissible, it complies with the development standards for FSR and building height and reasonably satisfies the relevant provisions of SEPP 65 and the ADG, which are not in contention.
It is also generally consistent with the DCP's aims and objectives for the Caringbah Centre including the provision of a widened lane where the ROC is located. The widened lane achieves the DCP objectives for both vehicular and pedestrian access to the west from Port Hacking Road as part of the future east-west link over the adjoining Caringbah Hotel land. It provides ground level retail uses oriented towards Port Hacking Road and around the entrance to the laneway, facilitating the realisation of active frontages that could also (subject to Council approval) be used for cafes or restaurants consistent with the desired future "eat street" character of that street. The subject site can therefore be developed in a manner reasonably consistent with the planning controls.
I also find that redevelopment of the substantially larger Caringbah Hotel site in isolation is not unduly constrained by the failure to amalgamate with the subject site. It can potentially be redeveloped in a manner consistent with the planning controls and it is also not beyond the realms of possibility that the building height standard may be varied to provide a "landmark building" as provided for in the DCP "to achieve a development of appropriate urban form and with acceptable level of amenity". I have been assisted in reaching this conclusion by the set of drawings in the "Master planning Options proposal" prepared by ADS Architects (the Masterplan) (Ex D) and the evidence of the experts.
The town planning experts dealt with the amalgamation issue in some detail in their Joint Reports (Ex 3) and in oral evidence. At paragraph 20 of the Supplementary Joint Planning Report Mr Carlon expresses his opinion that the Caringbah Hotel site "is not an easy site to redevelop" as there are "few opportunities to safely achieve vehicle and pedestrian access into the site".
I agree with Mr Carlon's analysis (p.6 of the Supplementary Joint Planning Report) that creating a laneway link through the site between Port Hacking Road and Burns Lane "would essentially create a street address for residents and businesses located in the southern portion of 345 Port Hacking Road (the Caringbah Hotel site)" and that this "sets a logical framework for vehicle access to this precinct". It is also consistent with the strategic intent of the DCP (from clause 5.4(e) of Chapter 18) as quoted in his written evidence: "The development of the internalised part of the site can be achieved by creating a laneway through the site. This would allow for the efficient servicing of buildings and also create an address for the internalised building. This lane can also rationalise access to properties on Port Hacking Road that currently have easement for access as well as formalising future access to Burns Lane."
It is clear from the "Detail Plan" in clause 5.4(e) of Chapter 18 of the DCP, that the DCP anticipates an east-west pedestrian link from Port Hacking Road to Burns Lane, and that a co-located pedestrian and vehicular link along the portion of the ROC on the southern boundary of the subject site. As indicated in the DCP, there arises the need to accommodate both vehicles and pedestrians over the nominated 7m wide accessway in some arrangement. The subject development achieves this by setting back the building from the ROC to maintain its current carriageway width and accommodate a new 1.8m wide footpath adjacent to the carriageway.
The "Detail Plan" for the Caringbah Hotel site also anticipates a north-south extension of the pedestrian link adjacent to the western boundary of that land connecting through to President Avenue, and indeed the pedestrian link to President Avenue is one of the two requirements of the 'height bonus' at cl 4.3(2E)(b) of SSLEP 2015. The future pedestrian and vehicular links over the Caringbah Hotel are not precluded by the development proposed on the subject site.
The town planning experts when preparing their Joint Report considered the Masterplan proposals. The Masterplan divides the Hotel Caringbah site into two areas, north and south of a line approximating the southern extent of Area 2 and corresponding to the dividing line between the SSLEP 2015's differing height and FSR limits applying to that land.
Division of the Caringbah Hotel site into two development areas, one north and one south of the east-west laneway is a logical outcome of the DCP, as acknowledged by Mr Carlon in his analysis. I agree with Mr Carlon that "development of the internalised part of the site can be achieved by creating a laneway through the site." The Masterplan illustrates one possible way this may be achieved.
The Masterplan focuses on the future development potential of the northern portion of Area 2, which it notes has an area of 3,390m2. It does not examine the development potential of the 2,720m2 (approximately) southern portion of Area 2, to which the lower FSR and building height apply. Mr Carlon in oral evidence agreed that the opportunities and constraints affecting the southern portion of the Caringbah Hotel site remain irrespective of what happens on the subject site. It is therefore not critical that the Masterplan does not provide a concept proposal for the southern portion.
The Masterplan provides for: 1. a vehicular laneway extension from the ROC in a westerly direction along the southern edge of Area 2 and connecting to Burns Lane, and a north-south extension to President Avenue along the western boundary, 2. in the north-eastern corner a triangular-shaped open space to complete the extension of Memorial Park into the future Square, with commercial / retail spaces at ground level facing the future Square, and an arcade link from the future Square to the laneway; and 3. two options for above-ground residential development north of the laneway in an L-shaped configuration oriented to the future Square, and abutting the blank northern wall of the residential development on the subject site: Option 1 adopts a 20m height limit and Option 2 provides for a 35m high building in the north-west section of the building, closest to President Avenue.
The Masterplan includes detailed floor plans to test how a future residential development on Area 2 of the Caringbah Hotel site might be optimised taking into account the solar access, privacy, building separation and other provisions of SEPP 65 and the ADG. Option 1 yields a FSR of 1.5:1, and for Option 2 yields a FSR of 2.14:1. There is no dispute between the Parties that the proposed development on the subject site, or the concept scheme in the Masterplan, fails to satisfy the key provisions of SEPP 65 and the ADG.
Mr Carlon is, however, critical of the Masterplan for failing to achieve the full 2.5:1 FSR applying to the northern portion of the Caringbah Hotel site, and that "access into the combined site has been ignored by the masterplan analysis because it cannot be resolved without amalgamation" (p 6 of the Supplementary Joint Planning Report).
Firstly dealing with the access issue, I do not agree that the concept Masterplan ignores access to the combined site, or that access cannot be resolved without amalgamation. The Masterplan (at drawing 3.2 Layout) includes an indicative laneway layout for the Area 2 land, consistent with the strategic intent of the DCP. Whilst it does not include any redevelopment options for the southern portion of the Caringbah Hotel site, the laneways depicted would provide the necessary access to that land.
The traffic experts considered the Masterplan in their Joint Traffic Report (Ex 5) and agreed, from a traffic perspective, that "a proposed unconsolidated development would not be affected by the development of the subject site". In the Supplementary Traffic Report (Ex 4) Mr Hollyoak considers the existing driveway width and proposed new 1.8m wide footpath. He concludes that "the proposed road corridor is adequate to permit safe two-way access and provide a pedestrian footpath which will provide adequate safety for pedestrians." This was not contested by Mr Gogoll. In oral evidence and having considered the advice of the traffic experts Mr Carlon agreed that access can be achieved.
I therefore find the development does not unduly hinder the potential redevelopment of the adjoining Caringbah Hotel in terms of future vehicular and pedestrian access via the ROC.
In terms of realising the maximum FSR on the Caringbah Hotel site, I concur with the evidence of Mr Robinson that "maximum floor space ratios are not 'as of right' and the maximum FSR applicable to a site cannot always be achieved". Furthermore I note that the DCP expressly states that isolated sites "are not expected to achieve the full FSR permissible in the zone." In this case achieving the maximum FSR is impacted by various constraints, including the reduced developable area arising from the DCP's proposed laneway network and the relatively large open space extension of Memorial Park needed to create the future Square.
The planners agree that failure to amalgamate the two properties means that the additional height 'bonus' provided for under clause 4.3(2E)(b) of SSLEP 2015 would not apply. They also agree that to achieve a 35m high "landmark building" as contemplated in the DCP cl 4.6 of SSLEP 2015 would need to be successfully engaged. Mr Robinson is of the view that there were sufficient planning grounds to support a request to vary the 20m building height development standard as provided for under cl 4.6 of the SSLEP 2015. In oral evidence Mr Carlon was asked to consider the tests involved in any cl 4.6 variation request and acknowledged that there could be some justification for varying the height standard, subject to a suitable design resolution.
Mr Carlon, at par 46 of the Supplementary Joint Planning Report, raises the "blank wall" on the northern façade of the proposed building and suggests that this is another reason for why the subject site "cannot reasonably be developed in isolation."
On the other hand Mr Robinson, at par 58 of the Supplementary Joint Planning Report, supports the zero setback because it would result in "a better long term outcome, as it facilitates the opportunity for (the Caringbah Hotel site) to be redeveloped with an "L"- shaped building that abuts the blank wall, provides the greatest opportunity to maximise north facing apartments and city views, allows for the 'mirroring' of Memorial Park and enables an 'eat street' character to be established in the ground floor…with a strong connection to the open space". The Masterplan demonstrates that this is achievable.
Based on the evidence of the Masterplan and carefully considering the evidence of both planning experts I am satisfied that the orderly and economic development of both the separate sites can be achieved even though amalgamation is not feasible. The second amalgamation question raised in Karavellas is therefore answered in the affirmative.
Mr Carlon was critical of the urban design outcome arising from the blank wall prior to redevelopment of the Caringbah Hotel site, which could be many years in the future. Mr Robinson refers to the DCP's acknowledgement that blank walls may occur in new development within the Caringbah centre, and that should a blank wall potentially remain exposed in the longer term, it is to "have a high quality finish that makes a positive contribution to the appearance of the centre" (Chapter 18, p 12). Mr Carlon in oral evidence agreed that not all blank walls were unacceptable, but it was "a question of impact."
The Applicant proposes to mitigate the visual impact of the blank wall and "make a positive contribution to the appearance of the centre" by adorning the wall with "public artwork" that is to be approved by Council. A condition to that effect is addressed later in this judgment. In this instance I find, based on the evidence of Mr Robinson and the Masterplan, that the advantages that the blank wall provides for redevelopment on the adjoining Caringbah Hotel site in the longer term outweigh the disadvantages of the visual impact of the wall in the short term, provided the wall is adorned with public art in a manner that makes a positive contribution to the centre, and Council is involved in making that assessment.
Considering the proposed development holistically I find that, even without amalgamation, the strategic intent of the SSLEP 2015 and the DCP is not precluded by the development of the subject site as proposed. The evidence does not support the proposition that failure to amalgamate would prevent a future development of the Caringbah Hotel, or that it could not reasonably satisfy the six guidelines for this particular 'amalgamated site' as set out in clause 5.5 of Chapter 18 of the DCP. On the contrary, the Masterplan and evidence of Mr Robinson is sufficiently persuasive that this is achievable, for the reasons set out in paragraph 30 (pages 9 - 10) of the Supplementary Joint Planning Report.

Construction management

The issue of construction management is detailed in Contentions 10 (f) to (i) of the Amended SOFC as part of the Council's contention about the inadequacy of information. The main concern relates to the adequacy of the "site management plan" and whether or not the development necessitates works within the ROC and/or would impact adversely on the operation of the ROC. This has two implications: 1. The jurisdictional issue of owner's consent for works within the ROC, which is part of the Hotel Caringbah site and for which no consent has been granted. Mr To confirmed that the development does not involve works on the adjoining Hotel Caringbah site, although whether or not this could be achieved was in contention. 2. The ability to maintain access for two-way vehicular traffic via the ROC, that is used by the Caringbah Hotel, Dan Murphys bottle shop, and the other properties south of the subject site (359 to 375 Port Hacking Road) that also enjoy, and rely upon the benefit of the easement.
This contention was addressed in the evidence of the engineers Mr Hollyoak and Mr Gogoll in their Supplementary Joint Traffic Report (Ex 4) which includes as Attachment B additional information in the form of a Construction Management Plan (CMP). The CMP provides for trucks to enter the subject site via the ROC and depart via a temporary exit to Port Hacking Road for the duration of the staged demolition and excavation works. For general construction works this arrangement changes to forward inbound and outbound movements via the ROC once the ground level loading dock area is constructed. These arrangements are not disputed between the engineers.
Mr Hollyoak stressed that the arrangements outlined in the CMP attached to the Supplementary Joint Traffic Report are not the sum total of what he would expect in a final CMP. Mr Hollyoak gave oral evidence that a final CMP and associated Construction Traffic Management Plan (CTMP) would usually be prepared once a selected contractor was engaged and would include a more detailed method statement of how the building would be built. The arrangements outlined In the Supplementary Joint Traffic Report were one way of addressing how access might work but there could be a number of solutions. A condition of consent requiring the submission of a final CMP and CTMP prior to commencing works was suggested by Mr Hollyoak to resolve this.
Another unresolved issue was the potential for construction works to result in the temporary narrowing of the ROC and constraining traffic movements. Mr Gogoll was concerned that a construction hoarding or safety barrier would be required within the ROC (emphasis added) and thereby reduce its width such that one-way traffic movements only would be available.
In response, the Applicant tendered a statement prepared by ADS Architects (dated 25 May 2020) and tendered as Exhibit G. This statement sets out a particular methodology for pre-excavation basement piling adjacent to the ROC, with capping beam supported by the piles and a hoarding and safety barriers supported by the capping beam, all within the confines of the subject site, as illustrated in the diagram in Exhibit G.
Mr Gogoll in oral evidence considered this would be difficult to achieve although a condition of consent preventing a reduction of the carriageway width and allowing for two-way traffic movements would resolve his concerns. Mr Hollyoak advised, based on his experience with construction access methods, that although it might be difficult, it was not impossible for a contractor "to keep out of the laneway".
Based on the evidence that the application does not involve any works within the laneway and that it is possible with careful management to maintain two-way vehicular access on the ROC, I find there are no substantive grounds for rejecting the application on the basis of construction impacts. I also accept, in order to ensure the construction-related traffic impacts are suitably mitigated, a detailed CTMP needs to be prepared. This is addressed in the conditions of consent.

Stormwater management

In the Joint Stormwater Report the engineering experts examined various stormwater drainage options for the subject site. Option 1 comprised three sub-options, 1A, 1B and 1C all of which contemplate drainage via the adjoining Caringbah Hotel land to existing infrastructure within the same catchment to which the existing development largely drains. Option 1 requires the creation of a drainage easement over the adjoining Caringbah Hotel land.
Options 2 and 3 would likely result in some discharge to a different catchment, which is not a preferred outcome under the DCP. Option 2 involves connection to an existing gully pit in President Avenue via a new pipeline located along the western side of Memorial Park, and Option 3 to an existing gully pit at the intersection of Port Hacking Road and The Kingsway, via a pipeline along the western side of Port Hacking Road.
These options were narrowed to two, with Ms Amy advising the Court that Council preferred Option 1B, and with Mr To confirming that the application before the Court seeks consent for Option 3, as detailed in the Stormwater Concept plans Revision A dated 6 April 2020 prepared by Australian Consulting Engineers (Tab 5 to Ex E).
Both experts agree that it is generally better to maintain catchment drainage patterns rather than divert to another catchment. In pars 54 and 55 of the Joint Engineering Report (Ex 6) they agree that Option 3 could be satisfactorily achieved provided the discharge is controlled, with augmented On Site Detention (OSD) tanks to limit the discharge flows to those currently discharging to the kerb outlets to Port Hacking Road. They also agree that works within the road reserve would require a permit under the Roads Act 1993.
In oral evidence both experts agreed with Mr To that each option satisfactorily conveys stormwater away from the subject site to Council's stormwater system. Mr Gogoll preferred Option 1B because it is "as close as you can get to the current situation" and Option 3 involves significantly larger OSD tanks which would have more maintenance issues.
Mr Bacha on the other hand preferred Option 3 because of the constraints imposed by obtaining an easement and undertaking works on the neighbouring Caringbah Hotel site and because the redirection to the other catchment doesn't cause an undue adverse impact. The OSD tanks shown on-site in the Further Amended DA are satisfactory in size and location to cater for the relatively minor flows emanating. With respect to works within the road reserve and obtaining consent under the Roads Act 1993. Mr Bacha advised that this is commonly done and the works in this case would not be difficult to execute. This was not contested by Mr Gogoll.
Based on this evidence I find that the Option 3 stormwater solution proposed in the DA achieves the objective of cl 6.4(1) of SSLEP 2015 and the provisions of cl 6.4(3) of SSLEP 2015, and therefore the development, subject to conditions, is acceptable in terms of stormwater management.

Conditions

At conclusion of the hearing the Court ordered the Parties to file additional written submissions on the draft conditions of consent (Ex 7) setting out any differences between them. On 2 July 2020 the Applicant filed and served its written submissions regarding the conditions in dispute and on 3 July 2020 the Council filed and served its written submissions with reasons as to why the conditions are disputed. On 13 July 2020 the Applicant filed and served further written submissions and a consolidated set of conditions of consent in response to Council's submissions of 3 July 2020.
The disputed conditions of consent relate to contentions raised in the hearing and dealt with in this judgment. Having considered the Parties further submissions on the draft conditions, and taking into account the evidence and my findings in this judgment, I have adopted the conditions that are agreed between the Parties and determined the disputed conditions, grouped according to subject matter, for the reasons set out in [97] to [108108] below.
Stormwater drainage - Option 3 verses Option 1C, found at draft conditions 1, 11 and 16. For the reasons set out in the judgment I find in favour of the Option 3 drainage solution, and accordingly have adopted the Applicant's version of conditions 1, 11 and 16.
Right of Carriageway and the new footpath, at Condition 4 (first paragraph) and Condition 9A.vii). Condition 4 requires as part of the construction certificate updated plans that reflect the agreed driveway and footpath widths. It refers to a specific diagram (Annexure A to the conditions) to assist with clarity. Condition 9A.vii) includes a reference to the footpath width as being measured from the back of the kerb. Council does not object to the wording of condition 9A.vii), but raises concerns regarding potential inconsistencies between the two conditions.
Condition 9A.vii) is sufficiently clear and is not inconsistent with Condition 4, but rather provides further information with respect to how the footpath width is to be measured. I accept the Applicant's submission that the inclusion in Condition 4 of a cross-reference to Condition 9A.vii) overcomes any possibility the additional detail in Condition 9A.vii) is overlooked. Accordingly the drafting of Condition 9A.vii) is supported, as agreed between the Parties, and Condition 4 is amended, as suggested by the Applicant, by adding to the end of the first sentence of the first paragraph the words "and in accordance with condition 9A.vii)".
Construction Traffic Management Plan, at Condition 6. Draft Condition 6 sets out the terms of the CTMP with respect to managing vehicular movements within the ROC adjacent to the southern boundary of the subject site. Council's approach relies on the temporary creation of a one-way traffic system entering from Port Hacking Road and exiting to President Avenue and requiring the Applicant to obtain from third parties, the owner of the Caringbah Hotel site and other beneficiaries of the ROC, an agreement to a temporary right of way over the Caringbah Hotel land to permit this to occur. The Council's position is predicated on the argument that the existing ROC is unable to operate with two-way traffic during construction.
As referred to earlier in this judgment, based on the evidence of the traffic engineers, I find that it is not impossible to maintain two-way traffic access within the ROC. I therefore accept that the Applicant's version of draft Condition 6 should be adopted, with one amendment. For abundant clarity I have added to the first bullet point of Condition 6 x) the word "two-way" after the word "how".
Draft Condition 6 vii) specifies the maximum size of trucks servicing the development during construction, "apart from one off large deliveries for which special permissions will be sought." In par 15 of Council's submissions on conditions (dated 3 July 2020) Council accepted the wording of Condition 6 vii), except for the words "and not unreasonably withheld" that were added by the Applicant. The Council submitted that these words be deleted because "conditions are to control the development not Council". Despite having the opportunity to do so the Applicant failed to respond to this argument, other than to note that its wording "…is pressed by the applicant". Based on the submissions, and bearing in mind there are remedies available to the Applicant in the event Council acts unreasonably, I find in favour of the Council on this point, and the pressed wording is removed from the condition.
Treatment of the "blank wall" northern façade - public art, at Condition 4. The second paragraph of Condition 4A. requires, prior to the issue of a construction certificate, the approval by Council of a "detailed façade and public domain plan for the northern façade of the development" and the matters to be addressed in that plan. The matters to be addressed include "…details of any strategy, competition and funding arrangements which are proposed for the design and may incorporate public art, a textured treatment of both". The Council submits that the Applicant's wording of the second paragraph of condition 4A. "… is problematic in that the condition and the outcome of the condition is uncertain." Council suggests that part of that uncertainty arises from the wording of the condition as anticipating "a textured treatment or part textured treatment". Council also claims the condition "leaves to a later stage a fundamental element of the proposed development." Council does not offer alternative wording.
Mr To submits Council's concern for the uncertainty of outcome is unfounded, that Mr Carlon's evidence is that public art can be "highly successful", and such an outcome would satisfy the DCP control. Mr To also submits the condition provides for Council to be satisfied as to the outcome, and such a condition is expressly authorised by s 4.17(2) of the EP&A Act, which provides: 4.17 Imposition of conditions … (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
Mr To reminds the Court of the decision of Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 where it was found at [28] "a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development". Mr To goes on to argue (at par 25 of his submission dated 13 July 2020) "it cannot remotely be said that differing forms of public art (that) may receive Council's approval could result in a significantly different development".
In this case the public art to be applied to the northern façade of the proposed development is an ancillary aspect of the development, can be conditioned under s 4.17(2) of the EP&A Act, and would not result in a significantly different development.
The application before the Court expressly refers to the use of "public artwork" on the northern elevation of the building façade (refer to Drawing No. 1501 in Ex C). Mr Robinson in oral evidence advised the Applicant originally proposed textured pre-cast concrete panelling "to provide light and shade" but that "Council officers weren't happy with that", and hence the Amended DA provides for public artwork. Mr Robinson supported the concept of public artwork but said there were a number of ways the wall could be treated, such as "coloured panelling, glass blocks and pre-cast panels" and expressed his preference was "...for a different architectural product".
Whilst I am persuaded, based on the evidence of the planners, that public artwork is capable of making "a positive contribution to the appearance of the (Caringbah) centre", as provided for in cl 4.2 of Chapter 18 of the DCP, I am not persuaded, that the second paragraph of Condition 4A should be broadened to include any number of potential alternatives for "textured treatment" notwithstanding Mr Robinson's stated preference. Accordingly the second paragraph of Condition 4A. is amended by substitution of the word "any" in the second sentence with the word "the" and deletion of the third sentence.

Conclusions

For the reasons set out in this judgment I am satisfied that the development as amended and subject to the conditions of consent set out in Annexure A of this judgment: 1. is not inconsistent with the aims of SSLEP 2015, satisfies the relevant R2 Zone objectives, is a use permissible with consent in the R2 Zone and complies with relevant development standards in that instrument; 2. is acceptable in terms of satisfying or not precluding the achievement of Council's vision for the Caringbah town centre as set out in Chapter 18 of the DCP, notwithstanding the lack of amalgamation with the adjoining Caringbah Hotel site, and therefore constitutes orderly and economic development of the land; 3. is acceptable in the manner it addresses the design principles of SEPP 65 and relevant provisions of the ADG, and in terms of satisfying the provisions of the other relevant statutory planning instruments; and 4. is acceptable in terms of the environmental and amenity impacts on the locality, and that the construction impacts can be adequately managed.

Orders

Accordingly, the Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA18/0871 (as amended) for the demolition of existing structures and construction of a six storey mixed use development comprising two ground floor retail spaces, 17 residential units and 23 car spaces over two basement levels at 347 - 357 Port Hacking Road, Caringbah subject to the conditions set out in Annexure A. 3. The exhibits are returned except for Exhibits A, B, C and G.

Acting Commissioner of the Court Annexure A (344887, pdf)

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: 10 September 2020

(2004) 139 LGERA 245

(2006) 143 LGERA 277

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Judgment (19 paragraphs)

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Cases Cited (5)