Holt Avenue Cremorne Pty Ltd v North Sydney Council

The site and its locality

1. The site is legally described as Lot 1 DP 929395, Lot 1 DP 980449 and Lot 1 DP 9219074, and is known as 115-119 Holt Avenue, Cremorne. The site is vacant, has an area of 1672m2 and a frontage of 45.72m.
2. The three houses to the west of the site contain single dwelling houses. Immediately to the north of the site is a 5-storey residential flat building, and to the north-east is a nine-storey residential flat building, both of which are located in the R4 High Density Residential zone. Adjacent to the site's boundary to the east is the parking area and a communal open space area associated with the 9-storey residential flat building.
3. Except for the three houses to the west, the majority of the housing in the immediate locality is medium density or high density housing with diversity in the built form, ranging from two and three storey walk-up residential flat buildings, two storey town houses and apartment buildings up to 9-storeys. On the southern side of Holt Avenue, the housing within the visual catchment is of one or two storeys, with a small number of 3-storey residential buildings. The eastern side of Spofforth Street is within the Mosman Council area, and is a heritage conservation area with a low-density residential character.

The site history

1. Whilst the site history has little relevance to the assessment of the development application before the Court, it provides some background to the residents' submissions and the planning proposal concerning the site. At the time that the development application was lodged with the Council, on 9 August 2021, the site contained three detached Federation bungalows. In early 2022, the Council commissioned a report on the heritage significance of the dwellings, and on 7 March 2022, an interim heritage order was issued by the Council in accordance with s 25 of the Heritage Act 1977, with respect to 115, 117, 119, 131 and 133 Holt Avenue. The interim heritage order was the subject of an appeal to the Court, which was dismissed on 17 August 2022: see Holt Avenue Cremorne Pty Ltd v North Sydney Council [2022] NSWLEC 1428.
2. On 2 March 2023, prior to the expiry of the interim heritage order dated 7 March 2022, the Minister for Environment and Heritage gazetted a further Interim Heritage Order, which applied to 115, 117 and 119 Holt Avenue.
3. On 9 March 2023 the Independent Planning Commission of NSW advised the Department of Planning and Environment that the planning proposal to list 115, 117 and 119 Holt Avenue as heritage items should not proceed to a Gateway determination.
4. On 21 August 2023, the Minister for Heritage revoked the Interim Heritage Order dated 2 March 2023.
5. A complying development certificate for the demolition of the dwellings at 115, 117 and 119 Holt Avenue was issued on 6 September 2023, and demolition subsequently commenced on 15 September 2023.
6. On 14 August 2023, prior to the revocation of the Interim Heritage Order, the Council resolved to support the progression of the Planning Proposal to identify 115-125 Holt Avenue, Cremorne, as local heritage items (PP5/23). On 5 September 2023, the Department of Planning and Environment issued a Gateway Determination allowing the Planning Proposal to be placed on public exhibition, and it was subsequently exhibited from 19 September to 17 October 2023. Insofar as the planning proposal concerns the listing of dwellings that no longer exist, it is otiose.

The planning framework

1. As described earlier, the site is part of a small area on Holt Avenue that is zoned R3 Medium Density Residential pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP). The objectives of the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To provide for a suitable visual transition between high density residential areas and lower density residential areas. • To ensure that a high level of residential amenity is achieved and maintained.
2. At the time that the development application was lodged, residential flat buildings were a permissible use in the zone. The North Sydney Local Environmental Plan 2013 (Amendment No 35) commenced on 19 May 2023, and removed residential flat buildings from the list of nominated permissible uses in the R3 zone. It has a savings provision, which was inserted in the NSLEP, as follows: (2) If a development application has been made, but not finally determined, before the commencement of North Sydney Local Environmental Plan 2013 (Amendment No 35), the application must be determined as if that plan had not commenced.
3. The prohibition of residential flat buildings through the North Sydney Local Environmental Plan 2013 (Amendment No 35) remains a relevant matter for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act.
4. Clause 6.10 of the NSLEP concerns earthworks and provides as follows: 6.10 Earthworks (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless - (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on - (i) drainage patterns and soil stability in the locality of the development, and (ii) natural features of, and vegetation on, the site and adjoining land, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
5. Pursuant to cl 4.3 of the NSLEP, the applicable height of building development standard is 8.5m. The proposed development breaches this development standard, with the consequence that cl 4.6 of the NSLEP precludes the grant of development consent unless certain matters are satisfied: … (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. …
6. The planning proposal to identify 115-125 Holt Avenue, Cremorne, as local heritage items (PP5/23), is a proposed instrument that has been the subject of public consultation and is therefore required to be taken into account pursuant to s 4.15(1)(a)(ii) of the EPA Act.
7. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) also applies, and provides at cl 28(2) that: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
8. Clause 30 of SEPP 65 provides: (1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria."
9. The Apartment Design Guide (ADG) is therefore relevant to the application. In addition, cl 6A of SEPP 65 provides that certain development control plan provisions have no effect with respect to residential flat buildings. Specifically, it states: 6A Development control plans cannot be inconsistent with Apartment Design Guide (1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following - (a) visual privacy, (b) solar and daylight access, (c) common circulation and spaces, (d) apartment size and layout, (e) ceiling heights, (f) private open space and balconies, (g) natural ventilation, (h) storage. (2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect. (3) This clause applies regardless of when the development control plan was made.
10. Objective 3F-1 in Part 3F 'Visual Privacy' of the ADG provides the following design criteria: "1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Building Height Habitable rooms and balconies Non-habitable rooms Up to 12m (4 storeys) 6m 3m Up to 25m (5-8 storeys) 9m 4.5m Over 25m (9+ storeys) 12m 6m

…"

1. The proposed development complies with these separation requirements, and is not required to comply with the development control plan provisions concerning the setbacks required for visual privacy, pursuant to cl 6A of SEPP 65.
2. The North Sydney Development Control Plan 2013 (NSDCP) applies to the site. In Part C Section 5, there is a character statement for the North Cremorne Planning Area, within which the site is located. It provides the following: "North Cremorne is a primarily residential neighbourhood providing a diverse range of housing forms for a mixed population. It is bound on its southern side by the Neutral Bay and Cremorne Town Centres, which are bustling places where people live, shop, eat, work and socialise providing a high level of amenity for all users. Development within the Planning Area should result in: • residential growth being provided in accordance with Council's Residential Development Strategy, with the growth concentrated within the Mixed Use zones of the Town Centres located on or in the vicinity of Military Road, and the remainder comprising of multi dwelling housing and residential flat buildings in the surrounding residential areas • residential densities not being increased in foreshore areas and areas of steep terrain • development within the R2 - Low Density Residential zone being of a similar scale to existing characteristic development • a wide range of residential types and sizes being distributed throughout the area according to zone • a range of retail and commercial premises, services and facilities being available to the local community within the Town Centres"
3. The character statement goes on to describe aspects of the intended character, including that "the few non-residential uses operate without an adverse effect to the amenity of the residential neighbourhood" and includes the following concerning built form: "• high quality residential accommodation in the Town Centre incorporates internal amenity for residents and energy efficient design • open meeting places in the form of courtyards act as focal points, and are located in areas that provide relief from traffic noise • residential development respects and maintains existing characteristic built form with buildings setback from all boundaries and landscaped front gardens, softening the built form"
4. Section 5.5 applies to the Murdoch Neighbourhood, in which the site is located. Section 5.5.2 requires front setbacks of 5m, with which the proposed development complies. The section is silent on the number of storeys that is characteristic of the desired future character, and instead provides that the desired future character of this neighbourhood is "primarily high density residential accommodation, generally comprising residential flat buildings" with limited opportunities for lower density forms of development, with "the density of development generally reduces the further away a property is located from Military Road".
5. Part B Section 1 of the NSDCP contains the built form controls for residential development. At Section 1.3.1 there are a number of controls concerning following the topography of the land. Two of those controls are as follows: "P3 Development should not result in the ground level (finished) being altered greater than 500mm above or below ground level (existing). P4 Habitable rooms (excluding bathrooms, laundries and storerooms) should not be located more than 1m below ground level (existing) for more than 50% of the room's floor area."
6. The objectives associated with these controls are as follows: "O1 To ensure that the natural topography and landform are maintained. O2 To retain existing vegetation and allow for new substantial vegetation and trees. O3 To minimise the adverse effects of excavation on the amenity of neighbouring properties. O4 To minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground water table and flow patterns. O5 To ensure the structural integrity of adjoining properties. O6 To minimise adverse effects of adjoining transport infrastructure."
7. Section 1.3.10 concerns visual privacy and provides specific controls concerning the provision of communal open space on rooftops, as follows: "P7 Private or communal open spaces such as terraces, patio, gardens and the like are not permitted on rooftops or garage roofs. P8 Despite P7 above, private or communal open spaces on roofs may be considered, but only if: (a) the space is designed such that there is no potential for existing or future overlooking of the space and subsequent noise and privacy issues; (b) the space is setback at least 1m from the extent of the external enclosing walls to the floor level below; and (c) the space does not exceed 50% of the floor area of the storey immediately below or 18m2, whichever is the lesser; and (d) there is no other appropriate ground level space for outdoor recreation off a primary living room."
8. The proposed communal open space on the roof of the residential flat building complies with each of P8, save for (c), where it complies with the requirement for the space not to exceed 50% of the floor area below but this is greater than 18m2.
9. Section 1.4.7 concerns form, massing and scale. It includes the following controls: "P2 Where applicable, the number of storeys within a building should be consistent with that identified in the relevant area character statement (refer to Part C of the DCP). P3 The finished floor height of the ground floor level should not exceed 1m above ground level (existing), measured vertically at any point. … P7 Residential flat buildings should use a pitched roof form to reflect the prevailing roof typology or that identified in the relevant area character statement (refer to Part C of the DCP). P8 Despite P7 above, Council may consider approval of a residential flat buildings with a flat roof, but only where: (a) the development complies with the height requirements under P1 above; and (b) where the top-most storey has been setback to comply with a 36 degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4)."
10. Section 1.4.8 concerns built form character, and includes the following control: "P8 Building facades should be modulated in plan and elevation and articulated to reduce the appearance of the building's bulk and to express the elements of the building's architecture."
11. Section 1.5.5 of the NSDCP contains a control requiring a maximum site coverage of 45% for residential flat buildings, with which the proposed development complies. Section 1.5.6 contains a control setting minimum landscaping area, with which the proposed development similarly complies. The proposed development also meets the controls in section 1.5.9 for private open space, and in section 1.6.4 for natural ventilation.

The expert evidence

1. Expert evidence on the town planning issues was given by Mr Jeff Mead, a town planner engaged by the applicant, and Mr Jim Davies, the executive planner from the Council. Their evidence was given in a joint report filed on 18 October 2023.
2. Mr Mead and Mr Davies gave agreed evidence that:

• The three dwellings the subject of the earlier interim heritage orders have now been demolished, therefore no issue arises from the development application concerning damage to environmental heritage.
• The proposed development does not comply with the height development standard and the revised cl 4.6 request, dated 12 October 2023, satisfactorily addresses the matters required to be addressed by cl 4.6 of the NSLEP.
• The building design is consistent with the ADG and the NSDCP.
• The proposed development is consistent with the objectives of the R3 zone and with the design principles in SEPP 65.
• The savings provision in cl 1.8A of the NSLEP means that residential flat buildings remain permissible for this development application, and the proposed development is sympathetic to the local character and surrounding built forms.
• The geotechnical issues have been adequately addressed through the geotechnical investigation prepared by EI Australia dated 31 January 2023 and the remaining matters can be dealt with by conditions of consent.

1. Their evidence is considered in more detail below.

The resident submissions

1. The development application was initially notified for the period 20 August 2021 to 3 September 2021, and amended development applications were notified from 4 to 18 February 2021 and from 2 May 2023 for 14 days. Submissions were received in response to each notification. In addition, local residents addressed the Court at the commencement of the site inspection. The issues raised in the written and oral submissions can be summarised as follows:

• Failure of the proposed development to comply with the ADG.
• Inconsistency with the objectives of the height development standard and the zone.
• Excessive bulk and scale.
• Increased traffic.
• Privacy impacts from the communal roof top area.
• Privacy impacts to the dwellings within the property at the rear, which have their living areas and private open space facing the proposed development.
• Risk of structural complications for adjoining buildings from the deep excavation.
• Inadequate landscaping and deep soil landscaping.
• Loss of heritage by the demolition of the dwelling houses.

1. In carrying out the functions of the Council in determining the development application, I am required to assess the development proposed by the development application, which is the development of what is now a vacant site. The fact that the dwelling houses have already been demolished has no relevance to the assessment of the development application, and there can be no loss of heritage through the development application as now proposed.
2. For the reasons that follow, none of the submissions raise issues that warrant refusal of the development application.

Each of the contentions raised by the Council has been resolved

1. In its Amended Statement of Facts and Contentions filed on 5 June 2023, the Council raised a number of grounds on which it contended the development application should be refused. As a result of the amended development application and cl 4.6 request, the Council now agrees that each of the contentions has been resolved. This is supported by the evidence of Mr Mead and Mr Davies.

Interim Heritage Order and Public Interest (Contention 1)

1. The Council raised a contention that the development application should be refused because it proposed the demolition of dwelling houses that were the subject of an interim heritage order.
2. However, there is no longer an interim heritage order in place concerning the site, and the dwelling houses have been demolished and their demolition no longer forms part of the development application. In those circumstances, the Council agrees, and I accept, that this contention is no longer relevant and was resolved through the demolition of the dwelling houses.

The breach of the height development standard (Contention 2)

1. The Council raised a contention that the written request made pursuant to cl 4.6 of the NSLEP concerning the contravention of the height development standard is inadequate.
2. Clause 4.3 of the NSLEP provides: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area, (g) to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
3. The applicable maximum height that applies to the site is 8.5m. The proposed development exceeds the maximum height in five areas, associated with either the communal open space or with the leading edge of the roof at the front of the site. The non-compliances are as follows:

• The lift overrun, which has a maximum height of 10.95m, which therefore exceeds the height development standard by 2.45m or 28.8%.
• The stair core and accessible bathroom, which has a height of 9.55m, which exceeds the height development standard by 1.05m or 12.3%.
• The acoustic screening around the air condenser units, which has a height of 9.32m, exceeding the standard by 0.82m or 10%.
• The awning structure for the communal open space, which has a height of 10.2m, exceeding the standard by 1.7m or 20%.
• The planter box around the communal open space, which has a height of 8.97m, exceeding the standard by 0.47m or 5.5%.
• The parapet edge addressing Holt Avenue, which has a height of 8.97m, exceeding the standard by 0.47m or 5.5%.

1. Clause 4.6 of the NSLEP allows development consent to be granted to a development that contravenes a development standard, as long as certain matters are satisfied. Whilst the terms of cl 4.6 were recently amended by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 operates such that the amendments made by the amending order do not apply to a development application that was made prior to its commencement on 1 November 2023. As such, the applicable wording of cl 4.6 with respect to this development application is as follows, insofar as it is relevant: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. …
2. The breach of the development standard is supported by the cl 4.6 request dated 12 October 2023. Mr Davies, the expert town planner for the Council, is satisfied that the request is adequate and that the proposal meets the objectives of the development standard and strict compliance is unreasonable and unnecessary. Mr Davies and Mr Mead both agree that the objectives of the zone are met and that there are sufficient environmental planning grounds to support the variation.

• It provides for a total of 16 residential apartments, with eight 2-bedroom apartments and eight 3-bedroom apartments, which provides for the housing needs of the community and also provides a variety of housing types that differs from what already exists in the R3 zone, consistent with the first two objectives of the R3 zone.
• It is not antipathetic to the third objective, which concerns enabling other uses that provide facilities or services to meet the day to day needs of residents, and will provide residential accommodation in close proximity to surrounding facilities.
• Consistent with the fourth objective, it does not compromise the amenity of the surrounding area or its natural or cultural heritage, as it does not result in any unacceptable privacy, solar or view loss impacts, and the site is currently vacant so there is no loss of natural or cultural heritage.
• Consistent with the fifth objective to "provide for a suitable transition between high density residential areas and lower density residential areas", the proposed development is designed as a stepped three storey form immediately adjacent to the R4 zone and is smaller in scale than developments in the R4 zone. It will therefore provide an appropriate transition from the R4 zone to the development of lower density within the R3 zone.
• Consistent with the sixth objective to "ensure that a high level of residential amenity is achieved and maintained", the proposed development provides well designed two and three bedroom apartments that are consistent with the ADG, with a roof top communal area that has a high level of amenity.

1. For those reasons, I consider that the written request from the applicant demonstrates the matters in cl 4.6(3) of the NSLEP and I am satisfied of the matters about which I am required to be satisfied by cl 4.6(4)(a). In addition, s 39(6) of the Land and Environment Court Act 1979 gives the Court the power to grant development consent without obtaining the concurrence of the Secretary as required by cl 4.6(4)(b). There is, therefore, power to grant development consent notwithstanding the contravention of the height development standard. Further, I am satisfied that there is no unacceptable impact resulting from the elements that breach the height development standard, and that, therefore, the breach of the height development standard does not warrant refusal of the development application.

Building design (Contention 4)

1. The Council raised a contention in its Amended Statement of Facts and Contentions that the design of the proposed development is inconsistent with the provisions of SEPP 65 concerning solar access, natural ventilation and visitor safety.
2. In particular, the Council was concerned about compliance with particular requirements of the ADG in Objectives 4A and 4B, which were for a "maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm at mid winter" (4A-1) and that "at least 60% of apartments are naturally cross ventilated" (4B-3). However, Mr Davies and Mr Mead both agree that these requirements are demonstrated and both Objective 4A and 4B are satisfied.
3. In addition, as a result of the amendments made to the development application at the hearing, Mr Davies and Mr Mead gave agreed evidence that the entrance lobby now has a more linear arrangement with skylights to allow for natural lighting, such that the principles for circulation space set out in the ADG in Objective 4F-2 relating to safety, are now met.
4. I accept the evidence of Mr Davies and Mr Mead, and find that this contention has been addressed and the proposed development has adequate solar access, natural ventilation and safety for visitors in the lobby.

Consistency with the aims of the NSLEP, the zone objectives and the design principles in the ADG (Contention 6)

1. The Council also contended that the development application was not consistent with the aims of the NSLEP and the objectives of the R3 zone. In particular, the Amended Statement of Facts and Contentions raised the objective in the NSLEP concerning protecting built heritage (cl 1.2(2)(f)) and a failure to satisfy the design principles in the ADG.
2. The evidence of Mr Davies and Mr Mead is instead that the objectives of the R3 zone have been met, consistent with my findings above at [58].
3. Mr Davies and Mr Mead also gave evidence that there is nothing that arises that makes the proposed development inconsistent with the aims of the NSLEP. They agree that, in circumstances where an interim heritage order no longer applies to the site and the dwellings have now been demolished, the aim of the NSLEP in cl 1.2(2)(f) is satisfied.
4. In addition, Mr Davies and Mr Mead both opine that the proposed development satisfies the design principles in the ADG. Their position is supported by the design verification statement of Paul Buljevic of PBD Architects, which addresses each of the design principles and the manner in which the proposed development, as amended, responds to those principles. As noted during the course of the hearing, this statement, dated March 2023, clearly relates to the amended development application that is now before the Court, notwithstanding that the pictures and illustrations remain those of the earlier design.
5. As required by cl 30(2) of SEPP 65, I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the ADG for the relevant design criteria. Based on the compliance table attached to the design verification statement, I have considered the ADG and the design quality of the development when evaluated in accordance with the design quality principles, as required by cl 28(2) of the SEPP 65.
6. I accept the evidence of Mr Davies and Mr Mead that the proposed development is now consistent with the aims of the NSLEP, the objectives of the zone, and the design principles in the ADG.
7. For these reasons, I accept the parties' position that this contention has been adequately addressed and no longer remains an issue that warrants refusal of the development application.

Residential flat buildings in the R3 zone (Contention 8)

1. The Council also raised a contention that the development application should be refused having regard to the current prohibition of residential flat buildings in the R3 zone.
2. However, the savings provision in cl 1.8A(2) of the NSLEP applies, such that the application must be determined as if the instrument that introduced the prohibition, North Sydney Local Environmental Plan 2013 (Amendment No 35), "had not commenced". It is agreed, therefore, that the residential flat building proposed remains permissible by virtue of this savings provision.
3. In considering a savings provision in cl 1.8A with respect to another instrument, Pepper J found in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 that (at [29]): "cl 1.8A is a deeming provision that does no more than fictitiously set the 2012 LEP back to a point in time immediately before its commencement. At that moment the 2012 LEP is a "proposed instrument" and must be considered pursuant to s 79C(1)(a)(ii) of the EPAA. In other words, the LEP becomes a mandatory relevant consideration under that Act, assuming, of course, that the proposed instrument has been the subject of public consultation and proper notification to the consent authority, and failure to take it into account will give rise to jurisdictional error."
4. Mr Davies and Mr Mead agree that the proposed development, although of a typology that would now be prohibited in the zone, is sympathetic to the local character and surrounding built forms, and is permissible and consistent with the zone objectives. They conclude that its approval would therefore be in the public interest.
5. I accept their evidence. The site is located adjacent to both a 5-storey and a 9-storey residential flat building in the R4 High Density Residential zone. The design of the proposed development allows a transition from that built form to a lower density built form typical of the R3 Medium Density Residential zone. It is permissible in the zone by reason of the savings provision, and is consistent with the R3 zone objectives, as set out in [58]. The introduction of the prohibition of residential flat buildings in the R3 zone, therefore, does not warrant refusal of the development application.

Other contentions that were initially raised on appeal

1. In its earlier Statement of Facts and Contentions, the Council raised contentions that it subsequently agreed were resolved in amendments to the design that were made in April 2023, and then removed those resolved contentions in the Amended Statement of Facts and Contentions. In particular, I note that the Council agrees that the Waste Management Plan is adequate and there is a sufficient Geotechnical Investigation to support the proposed excavation. The Council's position is that the design is now compliant with the ADG concerning visual privacy, setbacks and solar access, and achieves sufficient compliance with the provisions in the NSDCP concerning communal open space.

Issues raised by the residents

1. For the reasons that follow, none of the issues raised by the residents warrant refusal of the development application.

Three-storey scale

1. A number of the residents raised concerns with respect to the three-storey scale of the proposed development. One of the residents emphasised that the fact that one of the objectives of the height development standard, "to maintain a built form of mainly 1 or 2 storeys in… Zone R3 Medium Density Residential" was introduced to the NSLEP at the same time that residential flat buildings were made permissible in the R3 zone.
2. I do not accept that the three-storey form of the proposed development is unacceptable in its context. As set out above, the site has a 5-storey residential flat building to the rear and a 9-storey residential flat building to the north-east. The town planning experts, Mr Davies and Mr Mead, agree that the proposed development, at three-storeys, provides an appropriate transition from those residential flat buildings, which are located in the R4 zone, to the lower density built form in the R3 zone.
3. In addition, consistent with the design verification statement, the design of the third storey reduces its prominence so that the bottom two levels are emphasised. This is achieved through a change of material finishes for the upper level, and by an additional front setback at the sides of the upper level. The emphasis on the two lower levels ensures that it is compatible with a two-storey built from typical of the R3 Medium Density Residential zone.
4. Further, the objective of the height development standard for the buildings to be "mainly 1 or 2 storeys" does not require all buildings to be 1 or 2 storeys.
5. For those reasons, the three-storey form of the proposed development does not warrant its refusal.

Compliance with the Apartment Design Guide

1. A number of residents raised concerns with respect to compliance with the ADG and the setback controls in the NSDCP.
2. In accordance with my consideration above, adequate regard has been given to the design quality principles and to the objectives in the ADG. Based on the compliance table in the design verification statement, I am satisfied that the proposed development adequately complies with the ADG.
3. Further, in relation to setback controls, as set out above at [24] and [25], the proposed development complies with the separation requirements in the ADG, and is therefore not required to comply with the setbacks required in the NSDCP for visual privacy, pursuant to cl 6A of SEPP 65.
4. As such, I do not accept the concerns raised by the residents concerning compliance with the ADG and with the setback controls in the NSDCP.

Communal open space

1. The residents also raised concern about the location of the communal open space on the roof. Their focus is on control P7 in Part B Section 1.3.10 of the NSDCP, which provides that communal open spaces "are not permitted on rooftops".
2. However, P8 provides an exception if "there is no potential for existing or future overlooking of the space and subsequent noise and privacy issues" and a number of other criteria are met. The communal open space does not cause any privacy issues due to its location on the eastern side of the roof and with adequate setbacks that prevent visual overlooking of adjacent development, and complies with the requirement to be setback at least 1m from the external enclosing walls of the floor level below. Due to the fall of the site, there is no other appropriate ground level space for this area, and therefore it can be appropriately located on the roof. The only criteria of P8 that is not met is the requirement for the space to not exceed the lesser of "50% of the floor area of the storey immediately below or 18m2", as it is greater than 18m2 but is not larger than 50% of the floor area of the storey below.
3. In considering the controls in a development control plan, s 4.15(3A)(b) requires a flexible approach such that if a standard is not complied with, the consent authority must "allow reasonable alternative solutions that achieves the objects of those standards". The object of the standard for communal open space is "to ensure that existing and future residents are provided with a reasonable level of visual privacy". As set out above, this objective is met despite the fact that the communal open space is greater than 18m2. It nonetheless is not larger than 50% of the storey below, and its orientation and design ensures that visual privacy is protected both for users of the space and for adjacent development.
4. For those reasons, the fact that there is communal open space on the roof is not a reason for refusal of the development application.

Privacy

1. A number of the residents, particularly those who live at the residential apartment building at the rear, known as 130 Spencer Road, are concerned about an adverse impact by the proposed development on the privacy of their primary living areas and their private balconies. To assist in understanding this impact, the site inspection included an inspection of units 6 and 11 of that building.
2. Mr Mead and Mr Davies gave agreed evidence that the relationship between 130 Spencer Road and the proposed development is acceptable in the context and does not result in unacceptable loss of privacy. The evidence of Mr Mead, with which Mr Davies concurred, is that he observed a large setback at the rear of 130 Spencer Road with landscaping. He opines that this large setback, together with a setback on the site which exceeds the ADG separation requirements and the proposed landscaping, will protect visual privacy and that any impact will not be unreasonable.
3. I accept the evidence of Mr Mead, with which Mr Davies concurred, and consider that there is no unacceptable privacy impacts as a result of the proposed development. Whilst there may be some impacts on visual privacy, those impacts are not unacceptable and are consistent with what would generally be expected in a medium to high density residential area. Similarly, in relation to acoustic privacy concerns, any noise caused by use of the private balconies or of a communal open space are acoustic impacts typical of normal residential use of external areas within a residential property, and I therefore would not consider them to be unacceptable.

Landscaping

1. The residents also raised an issue concerning the adequacy of landscaping. I do not accept that such an issue arises. The proposed development includes a landscape plan, which includes a range of new plantings as well as the transplanting and relocation of existing mature palms. The new plantings include trees within the front setback to achieve consistency with the landscaped streetscape of Holt Avenue.

Earthworks

1. The residents of the adjacent residential flat building to the north east have a particular concern with respect to the impact of earthworks on their building.
2. I note that despite what was said by the residents, the basement is setback at least 4.5m from the side boundaries and at least 6m from the front and rear boundaries. The only area that extends into that setback is the driveway ramp.
3. The development application is supported by a geotechnical investigation dated 14 March 2023, which sets out what is required in the final design for the excavation works in order to protect adjacent properties. Those requirements have been incorporated in the agreed conditions of development consent. Accordingly, the requirement to comply with the conditions of consent will ensure that the excavation works are designed and carried out in a manner that does not interfere with the adjacent residential flat building and its car parking.
4. As such, the extent of earthworks is not a basis upon which the development application should be refused.

Traffic impacts

1. The residents have also raised issues concerning the impact of the proposed development on the movement of traffic along Holt Avenue, and related traffic concerns.
2. The development application is supported by a Traffic Impact Assessment dated December 2021 which reaches the following conclusions, inter alia:

• The anticipated net traffic volumes equate to an additional vehicle every 10 minutes during the morning and evening peak periods, which is considered minor and will have negligible impacts on the performance of the surrounding road network.
• The basement car park complies with the relevant standards and provides a traffic signal system and associated internal waiting bays to facilitate vehicle movements and passing within the development.

1. As such, there is no evidence in support of the proposed development causing unacceptable impacts on traffic.

Draft planning proposal for heritage listing of adjacent dwelling houses

1. The residents remain concerned about the preservation of local heritage, despite that there is no demolition proposed in the development application before the Court. An issue concerning the loss of built heritage therefore does not arise on the development application.
2. Nevertheless, as set out above, the planning proposal to list 115-125 Holt Avenue, Cremorne, as local heritage items (PP5/23), is required to be taken into account pursuant to s 4.15(1)(a)(ii) of the EPA Act. In relation to the listing of the dwellings on the site, it is otiose, as the dwelling houses are no longer on the site.
3. In relation to the listing of 121, 123 and 125 Holt Avenue, it remains relevant that the proposed development is adjacent to properties that are the subject of a planning proposal for their heritage listing. However, neither the Council nor the town planning experts have raised issues with respect to the compatibility of the proposed development with the adjacent dwelling houses. Instead, Mr Mead and Mr Davies both agree that the proposed development is sympathetic to the local character and surrounding built forms. I accept their evidence in this respect. The proposed development steps down with the topography of the site, and maintains a setback to the front wall which is consistent with the adjacent properties. Even if the dwellings at 121, 123 and 125 Holt Avenue proceed to being listed as heritage items, there is nothing that has been raised about the design of the proposed development that would adversely affect the significance of those dwellings.

Other issues raised by residents

1. The residents raised a number of other issues in addition to those considered above. I have had regard to those issues, none of which raise anything of substance that would warrant further consideration.

Development consent should be granted

1. As set out above, I am satisfied, pursuant to cl 4.6 of the NSLEP, that there is power to grant development consent notwithstanding the breach of the height development standard. In considering the merits of the development application, I am satisfied that each of the contentions raised by the Council has been adequately addressed and resolved through the amended design that is now incorporated in the development application.
2. Further, none of the issues raised by the residents warrant refusal of the development application. The development is an appropriate response to the site's location and urban context, and provides an appropriate scale to transition from the adjacent R4 High Density Residential zone to the R3 Medium Density Residential zone in which the site is located. The third storey is recessive as a result of the additional front setback on each side of the building and the changes in material finishes, resulting in emphasis on the lower two levels to ensure that it is compatible with the neighbouring context to the west and on the opposite side of the road, which is characterised by predominantly two-storey dwellings. The design of the proposed development follows the topography of the street, by stepping down as the site falls from west to east.
3. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction have been satisfied:

• Consistent with the requirements of Sch 1 of the EPA Regulation 2000, the development application was accompanied by the BASIX certificate dated 22 December 2021.
• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

1. In accordance with cl 30 of SEPP 65, I am also satisfied that adequate regard has been given to the ADG and the design quality principles. Given that the other planning controls of the NSDCP are met, and the proposed development does not create any unacceptable adverse impacts, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.
2. The Court orders that: 1. The appeal is upheld. 2. Development application DA243/21 for the construction of a three-storey residential flat building comprising 16 dwellings and 2 levels of basement parking at 115-119 Holt Avenue Cremorne, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits 2-5 and D-K are returned, and the remaining exhibits are retained.

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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: 05 December 2023