49 He held concerns in relation to the:
· 12m maximum building depth;
· 10m2 per unit storage space;
· 90% of dwellings to receive a minimum of 3 hours of direct sunlight;
· deep soil planting of 20%;
· privacy between windows; and
· side setbacks which he said should be 6m under s 6.4 CCDCP.
50 The applicant subsequently addressed some of these concerns. In particular the June 2005 amendment, provided north-facing windows for each unit thereby largely addressing the issue of solar access. When the Court considered the matter, the council's concern for solar access was limited to the alleged waste of solar access by placing two bedrooms on the north façade on the typical floors.
51 The applicant was content to provide deep soil planting over 20% of the site and 6m side setbacks remote from the street were proposed giving the required building separation while maintaining adequate privacy.
52 The maximum depth of the front continuous façade section of the proposal would be 14m including balconies and would comply with the depth specified.
Design Review Panel consideration of the amended plans
53 When the Design Review Panel, (DRP), whose members included, Messrs D Logan, (Chairman), D Epstein, R Meyer, and Ms M Stucci, considered the June 2005 amended plans it commented under the design principle of 'context', [Note: Exhibit 1 pp 8-9].
The site is in a transitional area between the commercial centre of Parramatta and adjacent residential precincts.
The panel considers the context of this application requires the building to be set back from the street to allow for substantial trees to be planted to complement the landscaping on the southern side and adjacent sites to the west. This would significantly improve the visual and physical quality of this important gateway area.
[T]he side boundary setbacks should be 6m on both the east and west for the entire depth of the site. This would improve the amenity for the residents within the building and for those in adjacent buildings.
The panel acknowledges that this would be contrary to the requirements in the REP that the applicant has been responding to. However, a streetscape with zero setbacks along the northern side of Parkes Street will not achieve an acceptable outcome with regard to the principles of SEPP 65.
54 Under the Design Principle of scale and form, [Note: Exhibit 1 p 9].
The panel does not have any objections to the height of the development. The form of the development should be amended to provide a smaller footprint with setbacks from the front and side boundaries as discussed above. The panel has considered the proposal by Michael Harrison as well with regards to the form of the development. The panel considers the setback issues, in particular the front setback, is paramount to the success of any scheme on this site and therefore does not support the proposal by Michael Harrison either.
55 The DRP concluded in respect of the June 2005 amended plans:
The panel does not support the application in its present form. As a minimum requirement the panel considers the setback from Parkes Street to be the most critical issue. Any setback area could be counted as communal open space although its main function would be to create a landscaped boulevard along this important street leading to the commercial centre of Parramatta. The greening of the street would act as an extension to the Parklands to the east of the site and as a transition to the block further to the west.
56 The DRP also considered the June 2005 amended plans under the other principles of SEPP65. However, the DRP's observations that the applicant should redesign the proposal so as to provide a 6m setback from Parkes Street and the side boundaries would appear to be outside the terms of the SREP28, which would require under cl 25 'urban design' that "…buildings are to be built predominantly to the street alignment, and side boundaries, and are to provide continuous street frontage for enhanced pedestrian amenity," [Note: Exhibit 12, p19].
57 The DRP's observations would also appear to be contrary to the CCDCP that requires the proposal to be built "…predominantly to the street alignment" and "…to the side boundaries in proximity to the street," [Note: Exhibit 13, after p 17].
58 The DRP acknowledged that its proposal would be in a transitional area and that its observations "…would be contrary to the requirements in the REP that the applicant has been responding to."
The hearing
59 The appeal was filed on 29 October 2004 and is within one day of the twelve months given to appeal the council's decision.
60 At the hearing the court heard evidence on behalf of the respondent council from Mr A Bas, Assessing Town Planner.
61 On behalf of the applicant evidence was given by, Mr P A Le Bas, town planner.
62 Mr M Harrison, a Court-appointed architect assisted in formulating a design concept in accordance with the SREP28 controls and CCDCP requirements.
63 The Statement of Basic Facts was prepared by Mr A Bas, Assessing Town Planner and Team Leader Development Parramatta City Council, [Note: Exhibit 1].
The issues
64 On 13 September 2005 the council filed a statement of issues in relation to the amended proposal:
1 Design review panel: The issues raised in the recommendations of the Design Review Panel at its meeting on 19 July 2005. [Refer to paras 53-8 above]
2 Acoustic privacy/ solar access: Bedroom 2 of units 3, 6, 7, 10, 11, 14, 15, 18, 19, 22, 23 and 26 do not achieve adequate internal acoustic privacy and adequate solar/ light access due to the small window opening for those bedrooms and the close proximity of the bedrooms to the covered balconies of the adjoining residential units. For example, bedroom 2 of unit 3 is located in close proximity to the balcony of unit 4. Whilst there is a blade wall to the bedroom and a screening device placed on the balcony, which will reduce visual privacy impacts between the units, they will do little to enhance internal acoustic privacy between the units. (SEPP 65 principle 7; CCDCP cll 8.2 and 8.4)
3 Size of laundries: The laundry facilities provided for the rear, 2 bedroom units on each of the ground floor and floors 1 to 6 are not large enough to service those units adequately.
4 Location of bathrooms: The amenity of the occupiers of the front units may be adversely affected by noise due to the location of the bathrooms of the rear units.
5 Common lobby area: Mr Harrison's recommended floor layout would achieve natural ventilation and light in the common lobby areas. The Applicant's design of the common lobby areas relies on artificial lighting throughout the day and does not provide for natural ventilation. The design shows a lack of due regard for principles of ecologically sustainable development. Natural ventilation and light should be provided to the common lobby areas. (SEPP 65 principle 5; CCDCP cl 10)
6 Rear setback: The proposed 6.25m rear setback will unduly reduce the northwestern aspect from the proposed development. Mr Harrison suggests a 9m-rear setback to achieve an effective landscape zone and separation in relation to an east-west axis development on the adjoining lot to the north. The proposed rear setback will also result in a less elegant and slender tower form than would be achieved using Mr Harrison's recommended floor layout. (SEPP 65 principles 2, 3 and 7; SREP cll 19(1)(a), and 25(d) and (e))
7 One unit to the rear, three to the front: With Mr Harrison's recommended floor layout there would be one unit to the rear and three units to the front. The proposed development has 2 units to the rear and 2 units to the front. A single unit to the rear on each floor: would allow that unit more exposure to the north than if there were 2 units; could be a 3-bedroom unit; and would assist in achieving a more elegant and slender building. The middle unit of the 3 units fronting the street (under Mr Harrison's recommended floor layout) could be a studio unit or 1 bedroom unit or a maisonette/loft style unit. (SEPP 65 principles 1, 2, 3 and 7; SREP cll 19(1)(a), and 25(d) and (e))
8 Access to rear open space: Access to the rear setback common open space area is restricted to the occupiers of the ground floor units only. Access should be available for occupiers of all units. (SEPP 65 principle 7; CCDCP cl 8.1)
9 Facades: The design of the facades is unsatisfactory. As suggested by Mr Harrison, the design of the approved development at 39 - 43 Hassall Street, Parramatta is an appropriate precedent for a better design for the proposed development. (SEPP 65 principles 1 and 10; SREP cl 25(a) and (i); CCDCP cl 6.5)
10 Objectors - The issues raised by the objectors (if any).
11 Conditions - The Respondent submits that only issue 4 is, in the circumstances of the case, capable of being dealt with by way of conditions of consent.
65 The salient issues are the weight to be attributed to the advice of the DRP and the alleged inconsistency between the SEPP65 and SREP28.
Further amended plans
66 By letter dated 18 October 2005, and as directed by the Court at the hearing, the applicant forwarded further amended plans to the Court. These plans showed more detail in the area of the lift and an enlarged vertical service and mechanical ventilation duct for the proposal. This set of drawings including an A3 set became Exhibit H.
67 On 25 October 2005 the respondent council commented on these further amended plans:
(a) the width of the proposed lift is now 1.1m reduced from 1.6m…and might be inadequate to cater for tenants transporting shopping bags to units;
(b) exhaust ducts from the bathrooms and laundries would penetrate the external skin of the building and might be unsightly.
The evidence and findings
The weight to be attributed to the advice of the DRP and the alleged inconsistency between the SEPP65 and SREP28
The council's case
68 The council's primary case is that the application should be refused consent, on the design advice of the Design Review Panel (DRP). This submission relies on the design advice of the DRP being taken into consideration, and if taken into consideration, being elevated to that of a mandatory consideration taking precedence over the council's 'planning and design policies'.
69 The DRP advised that the proposal should be setback 6m from the street and in the vicinity of the street, 6m from the side boundaries of the land. The applicant proposes a design that would address the street frontage with nil setback from the street alignment and would be constructed to the side boundaries near the street in accordance with the provisions of SREP28 and CCDCP. The applicant and the council are in direct conflict on the form of the proposal.
70 Mr Marincovitz, for the council, in support of the council's contention that the DRP design advice should be paramount, submitted that the Court need have regard for the principles outlined by his Honour McClellan CJ in Stocklands Development Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004) at 86-7 when he considered the position of development control plans in the statutory framework.
71 Those principles are:
· A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
· A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
· A development control plan, which has been consistently applied by a council, will be given significantly greater weight than one, which has only been selectively applied.
· A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
· Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases, which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.
72 Contrary to the submission of Mr Marincovitz, I consider that the principles of Stocklands support the applicant's contention that the SREP28 and CCDCP should be the focal point of consideration of the merit of this matter. This would accord also with the decision in Zhang v Canterbury City Council (2001) 115 LGERA 373 at 385 per Spigelman CJ. In that case it was held that the Court is required to give "proper, genuine and a realistic consideration" to the requirements of a DCP in place at the time of the decision.
73 Mr Marincovitz stressed that State Environmental Planning Policy No 65, (SEPP65) being a later document should take precedence over the SREP28. He submitted that under the Environmental Planning and Assessment Act 1979, s 36(2) where there is an inconsistency between planning instruments, a State environmental planning policy prevails over a regional environmental plan or a local environmental plan made before or after the policy, to the extent of any inconsistency, if the policy expressly provides for this. However, I am satisfied that there is no inconsistency between these instruments. SEPP65 has no specific controls that would conflict with SREP28. There appears to be an inconsistency only between the views of the DRP set up under SEPP65 and the council's planning instruments for the Parramatta City Centre.
74 Mr Marincovitz submitted that when the objectives cl 19(1)(a) of SREP28, are read with cl 19(1)(d) a certain form of development might result. He submitted that also under s 6.3 of the CCDCP the building depth might be limited. He submitted that compliance with these provisions would bring about an inappropriate planning solution for the land and one that would conflict with SEPP65 and in particular with the advice of the DRP. The better view as to the relationship of the instruments applying to the land is that of Mr McEwen, SC.
The applicant's case
75 Mr McEwen, SC, for the applicant, submitted that SEPP65, gazetted 26 July 2002, sets the statutory planning context for this development application, which was lodged with the council on 4 April 2002, prior to SEPP65.
76 He submitted that Clause 31(3) of SEPP65 indicates the provisions of cl 30(2) of SEPP65 extend to this development application but the provisions of cl 30(1) do not. Clause 30(2) of SEPP65 requires the consent authority to take certain matters into consideration, including: (a) the advice if any obtained under subcl 1 from the DRP; (b) the design quality of the residential flat development when evaluated in accordance with the design quality principles and (c) the publication Residential Flat Design Code. Clause 30(1) of SEPP65 requires the council to obtain the advice of the DRP concerning the design quality. Clause 31(3) of SEPP65 indicates that obligation does not extend to this development application because it "…was made but not finally determined, before the date of commencement of this Policy." Clause 31(4) of SEPP65 says nothing in cl 31(3) prevents a consent authority from obtaining the advice of the DRP. So he submitted, if the consent authority, presently the Court, were to elect not to take into consideration the views of the DRP it would not err in law.
77 He submitted that if the Court thought it appropriate to give weight to the material of the DRP, it could do so. However, he submitted, the Court is not obliged to follow it's prescription. He stressed that the advice of the DRP is "…not mandated by SEPP65." He submitted that as the advice of the DRP would lead to a result contrary to that obtained by following SREP28 and CCDCP it should be rejected in favour of the statutory scheme.
78 Considering the hierarchy of planning instruments, Mr McEwen, SC, submitted that cl 36 of the Environmental Planning and Assessment Act 1979 is not relevant in this matter because it is premised on the basis "…that unless otherwise stated there is a hierarchy in the event of an inconsistency and another environmental planning instrument made before or after this policy prevails."
79 He submitted that under cl 5(5) of the SREP28 "…[i]f there is an inconsistency between this Plan and any other environmental planning instrument made before the appointed day, this plan prevails." The appointed day is 20 August 1999 and SEPP65 was made after that day. Thus, he submitted, SEPP65 would prevail over the SREP28 and CCDCP but only to the extent of inconsistency. He submitted, that as there is no inconsistency between SEPP65 and SREP28, SREP28 carries full force and effect. The requirements of the CCDCP are also to be taken into account under s 79C of the Environmental Planning and Assessment Act 1979. The CCDCP complements and reinforces SREP28 he submitted. I accept that submission.
80 Mr McEwen, SC, submitted the intent of SEPP65 is clear that where a precinct is undergoing transition the 'planning and design policies' are to be considered. Principle 2 is to the same effect. SREP28 is entirely consistent in respect of the context and scale of development in precincts undergoing change with SREP65. This I accept this submission.
81 He submitted that it is plain that the DRP advice has not been the subject of public comment unlike SREP28 and CCDCP. He submitted that Mr Marincovitz' reference to para 87 of Stocklands is of little relevance in this case. Consistency of decision-making should be paramount and should observe the fundamental requirements of the SREP28 and CCDCP. I accept that submission.
82 He submitted that there is no evidence before the Court that the council proposes to amend the SREP28. It is true that a landowner that seeks to develop land must have regard to all relevant planning instruments and plainly the most pertinent are the SREP28 and the CCDCP, he submitted. Had the applicant obtained a s 149-certificate, to ascertain the details of the land use zoning, the relevant planning instruments applying to the development of land under consideration would be included. These planning instruments and other documents including SEPP65 are relevant. Nothing in SEPP65 would lead to the conclusion of an applicant not to build to the front and side boundaries.
83 The DRP's suggestions if applied would have a dramatic planning effect. For instance if the proposal were setback from the side boundaries new buildings on either side would also be required to be setback. This would produce a vastly different planning outcome in the City Centre than presently planned. He submitted that it would be most inappropriate to make a planning decision based on the advice of the DRP when that advice is plainly inconsistent with the advertised instruments.
84 Reasons given by the DRP for seeking the setback is that the site is in a transitional area and the residential flat buildings on either side might be expected to remain undeveloped for some time. I have assumed that the DRP's reasoning is that during a transitional period it might be more neighbourly to maintain side and front setbacks. However, under SREP28 one must question that premise as the whole instrument is designed to physically strengthen the city edge.
85 Clause 19 of SREP28 sets out the objectives of the City Edge Zone. The physical transition sought by the DRP is already built into the controls of SREP28 to provide a "…transition between the City Core and Retail Core zones to nearby lower density residential areas, and park and river foreshores."
86 Mr McEwen, SC, submitted that Mr Le Bas in his reports had dealt with each of the issues in the amended statement of issues of 13 December 2005. He submitted that the views of Mr Le Bas could be taken as genuine as he was not in favour of the earlier proposal. Now with the amendments presently before the Court he is in support of the development application. The amended design bears a striking resemblance to Fig 2 in Mr Harrison's report. The DRP adopted a position contrary to that of Harrison's and under the heading of scale and built form maintained that the front setback is paramount. However, both Messrs Harrison and Le Bas support nil setbacks to the street and side boundaries near the street.
Role of the Design Review Panel, (DRP)
87 There seems to be some confusion in the mind of the respondent council, over the role and function of the DRP as the respondent council comes to the Court supporting the views of the DRP apparently against its own planning controls. Clause 27 of SEPP65 (Functions of Panels) clearly outlines the various roles of the DRP.
88 The role of the DRP in assessing a development application are set out in cll 27(1)(a) and 27(1)(b) of SEPP65, "to give specific independent design advice …in accordance with the design quality principles," prior to and after lodgement of the development application. These clauses are distinguished from the other allotted functions of the DRP.
89 Clauses 27(1)(c) and 27(1)(d) of SEPP65 allow for the DRP to give advice on plan making in relation to design quality principles and other mechanisms and initiatives.
90 Clause 27(2) of SEPP65 authorises a DRP "…to carry out a review of provisions relating to the design quality of residential flat development in any local environmental plans and development control plans." The DRP may under cl 27(2)(b) "…advise the relevant council or councils whether or not it endorses those provisions". The review might then inform a council during the plan-making process. This is separate from its role in advising on residential flat buildings.
91 Although the DRP has some authority to review, and advise councils on plan drafting, its function is limited. It should be remembered that the consent authority remains the council or the Court on appeal. This is clearly implied in cl 21 (Members of Panels) where cl 21(5) states "A person is not qualified for appointment as a member of a design review panel if the person is an officer or employer of a consent authority that is advised by the panel". The separation of the DRP from the consent body is important to the ongoing efficacy and functioning of the DRP as an advisory and independent body.
92 The council, in this case appears to have privileged the DRP's design advice above its own planning controls. There are a number of public policy and procedural questions raised by the council's stance. Also, SEPP65 clearly outlines the function of the DRP and emphasises that the DRP acts as a design advisor to the council, and the Court on appeal, within the development assessment regime of the Environmental Planning and Assessment Act 1979. Also, as submitted by Mr McEwen, SC, above, the design advice of the DRP is not triggered in this case unless the consent authority wishes to have regard for it.
SEPP65 and development applications in transitional areas
93 The DRP recognised, under the heading of 'context', [Note: Exhibit 1, p8]"…[t]he site is in a transitional area between the commercial centre of Parramatta and adjacent residential precincts." In such a precinct, "undergoing a transition", the desired future character of proposed development is as stated in the council's "planning and design policies," [Note; Exhibit 10, cl 9].
94 The term "desired future character" is also found in cll 10 (Scale), 12 (Density), 14 (Landscape) and 18 (Aesthetics). Clause 17 (Social dimensions) has a similar but amended phrase, "desired future community". As the phrase is first defined in Principle 1 (cl 9), of SEPP65, "as stated in planning and design policies" can be implied through these other clauses.
95 The future character and direction of the Parramatta City Centre is of regional significance and has been laid out in SREP28 for the Parramatta City Centre. Any discussion of the major issues pertaining to scale and context, therefore, cannot be read except in regard to this environmental planning instrument. It was highlighted in the DRP's report that "…[t]he panel acknowledges that this would be contrary to the requirements in the REP that the applicant has been responding to." This admission at the beginning of the report was perhaps to alert the council to this important conflict.
96 In relation to the clarity of the statutes on the role of the DRP, the attempt to raise its findings to the level of a planning instrument, by Mr Marincovitz, solicitor of the respondent council, is almost incomprehensible. The fact that even the DRP recognised the conflict indicates that it had no pretension or misunderstanding that it was elevated in such a way.
97 I have concluded that the design advice by the Design Review Panel in respect of setbacks from the front and side if considered at all, should be given little weight in this case. I have considered the merits of this application in the light of the design quality principles set out in SEPP65, and the planning controls in SREP28 and CCDCP.
Public Policy
98 Mr McEwen, SC, submitted that in the public interest the Court must make a principled decision. Section 79C of the Environmental Planning and Assessment Act 1979 requires the council and the Court on appeal, to take into consideration environmental planning instruments.
99 He submitted that the Court has the benefit of three reports of the CAE Mr Le Bas and the architectural design suggestion of Mr Harrison. Under the CCDCP there is a compulsory build-to line with limited flexibility for any deviation. Following Zhang v Canterbury the relevant CCDCP provisions must be a focal point for consideration of the consent authority.
100 He submitted that both the CCDCP and the SREP28 have been consistently applied in the Parramatta City Centre and in the vicinity of the land development is following this prescription. He referred to the decision in April/May 2005 of Bly C and an approval of a development at Nos 39 43 Hassel Street. He submitted that in that case the council did not take the position that the applicant should setback any building from the street.
101 He submitted that a local or regional environmental plan is gazetted only after a comprehensive public participation process involving notification, and public input. SEPP65 is to provide "…consistency of policy and mechanisms across the State and a framework for local and regional planning to achieve identified outcomes for specific places" and the views of the DRP should not to take precedence over such a process of plan-making, [Note: Exhibit 10 p 2 cl 2(4)(a) and (b)].
102 Prospective owners and/ or applicants must have consistent and certain planning frameworks within which to operate. To have to comply to the suggestions of the DRP on planning issues outside the terms of the relevant plan, would be likely to cause great confusion and could lead to other than orderly and economic development of land, which is the aim of the Environmental Planning and Assessment Act 1979.
103 Where the development application, as in this case, conforms wholly to SREP28 and the CCDCP by building to the street alignment and side boundaries he submitted that to blindly accede to the suggestion of a DRP to do otherwise would be irresponsible. I accept that submission.
Other matters
Rear communal open space
104 In reply, Mr Marincovitz submitted that the application also should be refused for reason that there would be limited common access to the proposed rear open space. He referred to the planning controls, which require some communal open space within residential flat buildings. He referred to the Residential Flat Design Code (RFDC) pp 48-9 rule of thumb that "…an area of communal open space should generally be at least between 25 and 30 percent of the site area. Larger sites and brownfield sites may have the potential for more than 30 percent." He accepted that "where developments are unable to achieve the recommended communal open space, such as those in dense urban area, they must demonstrate that residential amenity is provided in the form of increased private open space and/or in a contribution to public open space." He also referred to s 8.1 p 43 of the CCDCP, wherein it is stated:
(d) to ensure that landscaped areas encourage spatial and recreational activities for the residents.
(e) To enhance the social and cultural attributes of the development and where appropriate, the Parramatta City Centre (eg provision of safe common spaces for residents, child care facilities etc).