Homeplan Architects v Parramatta City Council

Stocklands Development Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004); CASES CITED: Zhang v Canterbury Council (2001) 115 LGERA 373; Carstens v Pittwater Council (1999) 111 LGERA 1

DATES OF HEARING: 13/10/2005; new plans 18/10/2005, further submissions 25/10/2005

APPLICANT: Mr C McEwen, SC, instructed by Mr N Velcic solicitor SOLICITORS: Nikola Velcic & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr P Marincovitz, solicitor SOLICITORS: Phillips Fox Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11334 of 2004 - Homeplan Architects v Parramatta City Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to demolish a existing single-storey building, construct a nine-storey, thirty-unit mixed-use building consisting of two retail/commercial tenancies at ground floor, 4 x 1 bedroom, 20 x 2 bedrooms and 6 x 3 bedrooms residential apartments over two levels of basement car parking for 40 vehicles, and to strata subdivide at Lot 1, DP 599236 and Lot 3, DP 599799 being Nos 26 - 28 Parkes Street, Harris Park. 2 I visited the land in company with the parties on the morning of the first day of the proceedings. 3 I have concluded that the application when considered on merit under s 79C of the Environmental Planning and Assessment Act 1979, should succeed and conditional approval is ordered. The land 4 The land is situated on the northern side of Parkes Street between Harris and Wigram Streets, Parramatta. It has an area of 900.4m2. There is a vacant building on the land. 5 Abutting the land on the east and west are three-storey brick residential apartments and there is a two-storey residential/commercial building to the rear. To the east of the land is No 30 Parkes Street which is strata titled and in the one ownership. To the west at No 24 Parkes Street there are fifteen units, all individually owned. To the north is No 114 Harris Street comprising five separately owned strata titled units. 6 The land is situated within the City Edge zone in the southeast periphery of the Parramatta City Centre, within close walking distance to Parramatta Railway Station. Relevant planning controls Sydney Regional Environmental Plan No 28, (SREP28) 7 Under the provisions of the SREP28 the land is zoned City Edge, within the City Centre Precinct, and the proposal as a mixed-use building containing residential units is permissible with consent. 8 Under cl 19(1) of SREP28, the objectives for the City Edge zone include, [Note: Exhibit 12 p 16]: (a) to encourage a mixed-use, medium-density area that will provide a physical transition between the City Core and Retail Core zones and nearby lower-density residential areas, and park and river foreshore areas; (b) to encourage an increase in the permanent residential population through new residential development or the conversion of existing buildings and to ensure the maintenance of a range of housing choice; (c) to encourage the provision of neighbourhood support services and facilities for the residential and working population; and (d) to protect and encourage accessible city blocks by providing active frontages to streets and a network of pedestrian-friendly streets, lanes and arcades. 9 The land has an interface with Robin Thomas Reserve and low scale residential development to the east. 10 Clause 25 of SREP28 seeks to achieve the urban design objectives and the Division 3, building design controls of cl 25(a), (c), (d) and (e) are relevant, [Note: Exhibit 12 p19]. 25 Urban design: Development is to seek to achieve the following urban design objectives, and consent must not be granted for the carrying out of development unless the consent authority has given consideration to these objectives: (a) the major façades and entries of buildings are to address major public places, such as streets, squares, parks and the river, (b) … (c) buildings are to be built predominantly to the street alignment, and side boundaries, and are to provide continuous street frontage for enhanced pedestrian amenity, (d) buildings are to have regard to adjoining buildings and works with transitions of height, massing and scale, where appropriate, (e) the design of buildings is to have regard to the existing heritage character of a place, where applicable. 11 The land is also located in Special Area - City Edge East that is designed to create a clear distinction between the City Centre built form and the open space character of Robin Thomas and James Ruse Reserves. Under SREP28, this would be achieved by building, "…predominantly to the street alignment and street boundaries so as to provide a continuous street frontage." Parramatta City Centre Development Control Plan, (CCDCP) 12 The CCDCP provides numerical controls for various types of developments and performance criteria designed to maximise solar penetration into residential apartments; opportunities for natural cross ventilation; to optimise access to natural light and implement ecologically sustainable development. 13 The respondent council identified as of particular importance issues of urban design, street wall design, residential amenity & facilities, public domain interface, archaeology, deep soil landscaping and sustainability as stated in ss 6.3, 6.5, 7.7, 8.1, 8.2, 8.3, 9.4, 11.3, 12.0 & 13.0 of the CCDCP. At the hearing s 6.4 of the CCDCP assumed great importance. 14 Section 6.4(1) - Build-to lines and setbacks, of the CCDCP and in particular front build-to lines are to be maintained to: · Reinforce the spatial definition of streets; · Strengthen the visual character of streets and adjoining parks. 15 Under s 6.4(2) of the CCDCP front setbacks provide: · a threshold from the public street to the private home; · definition of streets and parks; · visual character; · environmental amenity such as access to sun, light and air; · a privacy buffer to street activity; · a landscaped setting that contributes visually to the public domain; · a noise attenuation zone; · safety when they are well lit, overlooked and properly designed to avoid ambiguous, publicly accessible niches /spaces. 16 Under s 6.4(3) of the CCDCP side setbacks provide: · an articulated urban form and city skyline; · mid-block pedestrian connections; · environmental amenity to buildings such as access to sunlight and fresh air.

17 Under s 6.4(4) of the CCDCP rear setbacks provide: · environmental amenity to dwellings such as access to sunlight, daylight and ventilation; · establish unbuilt zones for maintenance and emergency access and the creation of future laneways.

18 Under s 6.4(5) of the CCDCP upper level setbacks: · modify building form to allow solar access to streets; · minimise bulk, overshadowing and overlooking; · allow visual connections, from upper levels to the river or parkland through development on shallow city blocks.

19 Under s 6.4(6) of the CCDCP consistent ground level 'build-to' lines can increase pedestrian amenity, and promote a consistent and particular spatial definition of the street. 20 The objectives of the build-to lines and setbacks in the City Centre under the CCDCP are: · to reinforce the built definition of streets; · to control the relationship of buildings to other buildings; and to positively influence building form and street character. 21 The controls under s 6.4 for build-to lines and setbacks are setout, [Note Exhibit 13 p 19];

1. comply with the setback control drawing opposite, which establishes 'build-to' lines and building setback lines along street frontages or rear boundaries. Refer also to SREP28 building design controls;
2. generally buildings are to be built to the predominant street alignment;
3. buildings are to comply with side and rear boundary setbacks illustrated in the diagrams (Fig 1-3 on the right); · generally the lower levels of buildings are to be built up to side and rear boundaries or be setback 6m; · setbacks required above 36m are average setbacks and may vary more or less by 2 metres maximum.
4. refer to the Building Code of Australia and comply with side and rear boundary setback requirements, relating to class of building, type of construction, fire separation and openings; and for residential development;
5. refer to Section 7 building types for variations to these setbacks; and
6. refer to Section 8 social and residential amenity. 22 Under the CCDCP the built form for development is shown on the key to the map showing control drawing build-to lines and setbacks which notes, [Note: Exhibit 12, after p 17]: · Build predominantly to the street, lane, waterfront, or park alignment up to the height permitted in SREP28. · Continuous built edge along the public domain alignment - this is a compulsory build-to line. Build-to the side boundaries in proximity to the street.

23 Under s 8.1 of the CCDCP the relevant objectives relating to social and residential amenity: a. to support development with front gardens which retain existing landscape character and the stock of vegetation, particularly trees, which contribute to the quality of the public domain; b. to contribute to the character and environmental quality of the landscape of Parramatta; c. to enhance the micro-climate created by development, in development and the city centre as a whole; d. to ensure that landscaped areas encourage spatial and recreational activities for the residents; and 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). 24 Under s 8.1 of the CCDCP and the controls relating to social and residential amenity:

1. provide front gardens to developments in City Edge zones where buildings are setback from the street; refer to Section 6.4;
2. design front gardens to provide a positive setting for the building;
3. … 25 The proposal is about 20m from Harris Street, which is the western boundary of the Rosehill Area of National Significance. The land is to the west of Robin Thomas Reserve and nearby to the south is the Harris Park West Conservation Area and Experiment Farm Conservation area, however there no issue was raised that the proposal would significantly impact on these items. 26 I have interpreted the CCDPC as permitting on the subject land, in this City Edge location, a mixed commercial/residential development, built to the street alignment, and side boundaries in proximity with the street. The street wall is to be that of Section B with a maximum height of 28m, [Note: Exhibits 9 and 13]. The maximum floor space ratio is to be 3.5:1, [Note: Exhibits 9 and 13]. In accordance with s 8.1 of the CCDCP, front gardens are required where a building is setback from the street under s 6.4, however, where no setback is required, a different approach is required and no front garden is indicated here. Although active street frontages are required under s 11 of the CCDCP, no awning or colonnade is required in the control drawing of s 11 after p 76 of the CCDCP. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) 27 The relevant principles of SEPP65 are 1, 2, 3, 7 and 10. Future development is anticipated and is to be controlled by the planning and design policies of the council. Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies . New buildings will thereby contribute to the quality and identity of the area. [Court's emphasis added]. Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. Principle 10: Aesthetics Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area. 28 I have interpreted the 'desired future character' as being derived from the planning controls as stated in the 'planning and design policies' applying to the land. In this case those planning and design policies of some relevance are SREP28 and the CCDCP. The desired future character, so derived from the planning and design policies, would also apply to the other principles where reference is made to the "…precincts undergoing a transition." I have interpreted 'planning and design policies' of the council to be those instruments referred to in s 79C of the Environmental Planning and Assessment Act 1979 and including (i) any environmental planning instrument, and (ii) any draft environmental planning instrument. Other relevant policies and codes of the council might also be taken into account, [Note: Carstens v Pittwater Council (1999) 111 LGERA 1]. 29 Of interest also, are Principle 4 - Density; Principle 5 - Resource, energy and water efficiency; Principle 6 - Landscape; Principal 8 - Safety and security; Principal 9 - Social dimensions. 30 Design review panels are dealt with under Part 3 of SEPP65. Under cl 21 the members of panels are explained and it is clear that these members are independent of the council as the consent authority. (1) A design review panel is to consist of not more than 5 persons appointed by the Minister. (2) A person is qualified for appointment as a member of a design review panel if the person has expertise in any one or more of the following disciplines, namely, architecture, urban design, environmental planning or landscape architecture. (3) At least one member of each design review panel must have an appreciation of the design issues of the region or area for which the panel is constituted. (4) In appointing the members of a design review panel, the Minister is to ensure, as far as practicable, that the members have expertise in a mix of the disciplines referred to in subclause (2). (5) A person is not qualified for appointment as a member of a design review panel if the person is an officer or employee of a consent authority that is advised by the panel. Note. An officer of a consent authority includes a councillor of a council. 31 Under Division 2, cl 27(1) of SEPP65 it is clear the functions of the design review panel are advisory and: (a) to give specific independent design advice to the consent authority on a development application for residential flat development and, in particular, to give such advice on the design quality of the residential flat development when evaluated in accordance with the design quality principles, (b) to provide independent advice to consent authorities and applicants, and their consultants and advisers, before the lodging of relevant development applications as well as afterwards, on the design quality of residential flat development proposals having regard to the design quality principles, (c) to give independent advice to councils on the design content of draft local environmental plans, development control plans, master plans, similar plans and draft planning policy documents having regard to the design quality principles, (d) to give independent advice to councils on other mechanisms and initiatives to improve achievement of the design quality principles, (e) to contribute to the understanding of design quality, and to improve the achievement of the design quality principles, by making public its advice under paragraphs (a) and (c), (f) to contribute to the co-ordination of design quality across boundaries of local government areas. 32 Also under cl 27(2) of SEPP65 design review panel may: (a) carry out a review of provisions relating to the design quality of residential flat development in any local environmental plans and development control plans in the area or region for which it is constituted, and (b) advise the relevant council or councils whether or not it endorses those provisions.

33 Under cl 30 of SEPP65 the determination of development applications is made: (1) After receipt of a development application for consent to carry out residential flat development and before it determines the application, the consent authority is to obtain the advice of the relevant design review panel (if any) concerning the design quality of the residential flat development. (2) In determining a development application for consent to carry out residential flat development, 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 in accordance with subclause (1), and (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 (a publication of the Department of Planning, September 2002). (3) However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the residential flat development within 31 days after the request for its advice is made by the consent authority, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground. (4) The 31-day period referred to in subclause (3) does not increase or otherwise affect the period within which a development application is required to be determined by a consent authority. 34 Clause 31 of SEPP65 addresses the transitional provisions that are important in this case as the application was lodged with the council prior to the coming into operation of the Policy. Relevantly: (1) … (2) … (3) The provisions of clause 30(2) extend (but the provisions of clause 30(1) do not extend) to the determination of a development application for consent to carry out residential flat development that has been made, but not finally determined, before the date of commencement of this Policy. (4) Nothing in subclause (3) prevents a consent authority from obtaining the advice of the relevant design review panel (if any) concerning the design quality of residential flat development after receipt of a development application for consent to carry out the development and before it determines the application. 35 Under cl 32 of SEPP65 the effect of Amendment No 1 is explained, The amendments made to this Policy by State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (Amendment No 1) do not apply to a development application made but not finally determined before the commencement of those amendments. The proposal and its history 36 Development application No 02/788 was lodged with the respondent council on 4 April 2002 to erect a mixed-use building on the land. 37 The proposal is to · Demolish a existing single-storey building; · Construct a thirty-unit-nine-storey mixed use building consisting of two retail/commercial tenancies at ground floor, 4 x 1 bedroom, 20 x 2 bedrooms and 6 x 3 bedrooms residential apartments over two levels of basement car parking for 40 vehicles; and · Strata subdivide the building. Notification of the original application 38 The original development application was notified to thirteen (13) nearby owners and occupants from 1 May to 22 May 2002 and the council received no submissions. 39 The Central Parramatta Planning Committee considered the original proposal on 9 October 2002, and advised that it did not support the application. It recommended that the applicant should address the outstanding issues raised in the planning report with particular attention to: (a) Provision of adequate sunlight penetration. (b) Provision of a minimum 3.6 metre floor-to-floor height to the ground and first floor levels. (c) Provision of a minimum 2.7 metre floor to ceiling height to the residential apartments. (d) Provision of a 12-metre separation between windows to living rooms. (e) The proposed external finishes are not high quality. (f) Consideration should be given to providing two (2) lifts in the building. (g) Consideration of issues raised in respect to SEPP 65, Urban Design; Street Section B of SREP No 28, Residential Amenity and Sustainability. (h) On-going discussions take place with Council's Planning Staff with a view to resolving the issues mentioned in the report. 40 The applicant provided amended plans that it maintained addressed all the outstanding issues of the Central Parramatta Planning Committee except perhaps adequate solar access, building separation, provision of two lifts and façade treatment that responded to the local context. 41 A report recommending refusal of the application was considered at the council's Approvals and Regulatory Committee Meeting held on the 7 July 2003 and on 20 August 2003, the plans were further amended. The same committee considered the development application again on 20 October 2003 and resolved, amongst other things, that consideration of the application be deferred to the next meeting of the Central Parramatta Planning Committee for comments on the issues raised in the planning report. 42 The Central Parramatta Planning Committee was of the opinion that: a) Inadequate urban design response to the provisions of SREP No 28 including compliance with Special Area Controls; b) Inadequate response to issues of residential amenity including privacy, solar access into living areas and deep soil zones; c) Lack of design resolution; d) Reliance on a very inadequate sized light well for solar access and ventilation. The aural privacy is also compromised by the size and depth of the light well and this issue will further be exacerbated if another building is built up to the side boundaries; e) Proposal should incorporate 2 lifts and consequently this may have resulted in separate built form which may have been a better solution; and f) Pedestrian amenity and active street frontage needs improvement. 43 The application was considered at the Approvals and Regulatory Committee Meeting held on the 20 October 2003 when it was resolved to refuse the application. The council's decision in respect of the original application 44 By notice dated 30 October 2003, the council refused the original application for the following reasons, [Note: Exhibit 9 p 143]:

1. The proposal does not comply with objective (1)(a) of the City Edge Zone.
2. The proposal does not comply with the objectives of the controls for Urban Design as set out in clause 25 in SREP No. 28.
3. The proposal does not comply with the objectives of the controls for Special Areas as set out in clause 28(h) in SREP No. 28.
4. Adequate solar penetration is not provided to the residential apartments.
5. The proposal does not comply with social and residential amenity requirements of City Centre Development Control Plan.
6. The proposal does not satisfactorily address the public domain.
7. The proposal does not establish an acceptable precedent for the redevelopment of neighboring lots, establishing a pattern relating building depths and landscaped separation as required by Section 7.7 of Council's City Centre Development Control Plan.
8. Adequate landscaping and provision of mature tree planting has not been provided in accordance with Section 8.1 of Council's City Centre Development Control Plan.
9. The proposal does not comply with State Environmental Planning Policy No. 65, specifically in respect to site context, scale, built form, amenity, and aesthetics.
10. The proposed bulk and scale is not in keeping with the established built form in the locality.
11. The proposal is not in the public interest. June 2005 amended plans 45 The applicant requested the council review the application under s 82A of the Environmental Planning and Assessment Act 1979, on the basis of the June 2005 amended plans, [Note: Exhibit C]. Approval for the strata title subdivision of the proposal was also sought, [Note: Exhibits F, and H Strata title plan(s)]. Mr Bas, the council's assessing town planner considered this amendment to be "…a great improvement but partly achieves the recommended design solution" proposed by Mr Harrison the Court-appointed architect assisting Mr Le Bas the Court-appointed town planner, [Note: Exhibit 9 p 159]. Notification of the June 2005 amended plans 46 When the June 2005 plans were notified to nearby owners and occupiers, the council received three submissions including one letter in support. Concerns were that the proposal, [Note: Exhibit 9 pp167-9] · is in contradiction of the CCDCP; · is in contradiction of the LEP; · would create an unwarranted precedent for the height of buildings facing Parkes Street; · would dramatically increase and complicate traffic flow; · would cause unacceptable shadowing of neighbouring properties; · exceeds the FSR for the area; · in particular its basement car parking has implications in relation to flooding of surrounding properties; and · puts a great deal of additional pressure on the environment around Parkes Street locality. 47 Generally: · demolition creates waste and any heritage structures are to be preserved; · tree removal should be avoided; and · any increase in housing density must not overburden utilities.

48 Mr Bas, the council's assessing officer, prepared a compliance schedule for the June 2005 amended proposal and found compliance with, [Note: Exhibit 9, pp 165-6]: · floor space ratio of 3.5:1; · height of 28m; · street Section 'B'; · car parking; · floor to ceiling height; · private open space (in part); · balcony depth; · NatHERs; · dwelling mix; · rear setback; and · front setback.

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).

105 Given the limited possibilities for common access to the rear open space and the availability of private open space with access off each unit, I consider in this City Edge location that no communal open space is necessary. I would not refuse the application for this reason. Architectural treatment 106 He also submitted that the façade to the street on the southern side of the proposal with centre windows would be unsatisfactory. He asked the Court to compare the present proposal with Nos 39-41 Hassell Street and to find that further articulation of the façade would be necessary. 107 I am satisfied that the façade would be satisfactory and this would not be a reason to refuse the application. Disabled access 108 He submitted that common lobby areas should be accessible for those with a disability. The applicant proposes access from the street to the lift. Solar access 109 I am not persuaded by the council's submissions that the application should be refused for reason of inadequate solar access. On the contrary the applicant's design makes good use of the northern aspect. The fact that two bedrooms on each typical floor also have good solar access and perhaps deprive in part the living rooms of those units a greater northerly aspect is not a reason to refuse the present application. The applicant explained on the site inspection, that the typical floor plan at the rear would not be sufficiently wide to allow for the two bedrooms on the typical floor to be placed inboard. I accept the applicant's evidence in that regard. Design 110 I am satisfied that the proposed design meets the objectives of the CCDCP and SREP28 for the reasons outlined above. The 1.1m width of the lift and the vents on the outside of the building would not be sufficient reason to refuse the application. 111 For the above reasons, the appeal is upheld. Conditions 112 The conditions are those in Exhibit 3 as amended during the hearing. In order to protect public safety and to maximise visibility in the basement carpark, the council has required by Condition 13 that the ceiling of the basement should be painted white. The applicant has objected to this condition and is content for the Court to make a finding in this regard. Given that there would be little natural light entering the basement I have concluded that the condition should remain. I have taken into account that to overcome drainage problems the rear northern courtyard would be filled. This fill would remove the natural ventilation on the northern side of the basement carpark and the possibility of natural light entering from this side. The white painted ceiling would assist in providing for some natural light. Costs 113 As there were no submissions made in respect of costs. In this case, I reserve my decision in respect of costs. Strata subdivision 114 Eleven strata subdivision plans were filed with the Court in Exhibit H. These were dated October 2005. Approval is granted to the strata subdivision of the proposal. Orders 115 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 02/788 lodged with the respondent council on 4 April 2002 to demolish a existing single-storey building, construct a nine-storey mixed-use building consisting of two retail/commercial tenancies at ground floor, 4 x 1 bedroom, 20 x 2 bedrooms and 6 x 3 bedrooms residential apartments over two levels of basement car parking for 40 vehicles, and to strata subdivide at Lot 1, DP 599236 and Lot 3, DP 599799, being Nos 26 - 28 Parkes Street, Harris Park, is approved subject to Conditions 1 to 85 in Annexure A.

4. The exhibits with the exception of Exhibits A, C, E, F, G, H and 3 are returned.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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