Huajun Investments Pty Ltd v City of Canada Bay Council - [2019] NSWLEC 42 - NSWLEC 2019 case summary — Zoe

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Huajun Investments Pty Ltd v City of Canada Bay Council

[2019] NSWLEC 42

Land and Environment Court (NSW)|2019-03-29|Before: Moore J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-03-29

Before

Moore J

Catchwords

[2009] HCA 27 Canterbury City Council v Saad [2013] NSWCA 251 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400
[2007] NSWLEC 114 Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 27 Canterbury City Council v Saad [2013] NSWCA 251 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400[2007] NSWLEC 114 Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101

Judgment (72 paragraphs)

[1]

Introduction

Huajun Investments Pty Ltd (the Applicant) applied to the City of Canada Bay Council (the Council) for approval to develop a residential flat building at 38, 40 and 42 Leicester Avenue, Strathfield (the site). The proposed development includes three basement parking levels containing 74 parking spaces, with 65 residential apartments above. The total area of the site is 1,858.3 square metres (according to the survey plan submitted to the Council), with the combined frontage to Leicester Avenue of the three existing properties being 46.235 metres and a depth of between 40.135 metres and 40.245 metres. As a consequence of the somewhat complex procedural history associated with this proposed development, the development application, in an amended form, now comes before me for determination in these Class 1 merit appeal proceedings.
The site is zoned R4 High Density Residential under the Canada Bay Local Environmental Plan 2013 (the LEP). It is located in an area bounded by Leicester Avenue, Parramatta Road and the railway line. The area is known as the Strathfield Triangle (the Triangle).

[2]

[3]

The procedural history

The Applicant's development application was submitted to the Council on 1 November 2016. The application was subsequently deemed to be refused by the Council. As a consequence, the Applicant commenced a Class 1 appeal seeking that the Court grant consent to its proposed development.
As is now conventionally the position for appeals concerning applications of this type, the matter was set down pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) for a conciliation conference to be presided over by a commissioner. Pursuant to the Court Act, the Chief Judge assigned the matter to Commissioner Smithson. Smithson C conducted the conciliation conference between the Applicant and the Council on 15 and 20 February 2018. The outcome of that conciliation conference was an agreement on the terms upon which development consent might be granted to the Applicant's proposal in the form then before the Commissioner.
Under such circumstances, the only matter requiring to be addressed by the Smithson C, in her determination as to whether or not to give effect to the agreement between the Applicant and the Council, was whether the orders proposed as a result of the conciliation agreement were ones which the Court could lawfully make in the exercise of its functions (s 34(3) of the Court Act). The Commissioner determined that the proposed agreement was one which was permissible to be made and, as a consequence, that agreement was given effect (see Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087).
Al Maha Pty Ltd (the Neighbouring Owner) owns the property immediately to the south of the site. The plans which had been the subject of the consent purportedly granted by Smithson C nominated the Neighbouring Owner's property as a future access point for the Applicant's proposed development, but nominated that the access to be constructed to give effect to the development was to be from Leicester Avenue, a controlled road requiring consent from Roads and Maritime Services (the RMS).
Such consent from the RMS for temporary access was provided, but only on the understanding that future access would be across the Neighbouring Owner's property. It was envisaged that this access would become available as a consequence of the fact that the Neighbouring Owner's property had been zoned RE1 Public Recreation under the LEP and was proposed to be acquired by the Council for this purpose and to enable a new road pattern to be established in the Triangle.
It is to be observed, to provide context at this time, that acquisition by the Council has been the subject of negotiations between the Council and the Neighbouring Owner but, to date, those negotiations have not been successful and the Council has not taken any steps to acquire the property compulsorily.
As a consequence, the Neighbouring Owner remains the only entity which can grant owner's consent for development on its property in satisfaction of cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) made pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act), and not the Council. The Neighbouring Owner has not given any consent to designating its property as being a future access point for the Applicant's proposed development.
Absent consent from the Neighbouring Owner, no approval was within the power of the Court to grant development consent in a fashion which purported to involve future activities on the Neighbouring Owner's property.
With the consent of the Applicant and the Council, Smithson C purported to use the Slip Rule (r 36.17 of the Uniform Civil Procedure Rules 2005) to rectify the position by removing references to the Neighbouring Owner's property from the consent purportedly granted arising from the outcome of the conciliation conference between the Applicant and the Council.
As the Neighbouring Owner was not a party to the proceedings resulting in the purported grant of approval by Smithson C, there was no right of appeal pursuant to s 56A of the Court Act available to the Neighbouring Owner. The Neighbouring Owner, therefore, commenced proceedings in the Supreme Court, in its general supervisory jurisdiction, pursuant to s 69 of the Supreme Court Act 1970, seeking to have the development consent purportedly granted by Smithson C through the conciliation conference process set aside.
That application was heard and determined by the Court of Appeal. The Neighbouring Owner was successful and the purported consent was set aside and the matter remitted to this Court to be determined (see Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 245).
The Neighbouring Owner then applied, pursuant to s 8.15(2) of the EP&A Act, to be joined as a party to the (now remitted) Class 1 appeal proceedings. On 29 November 2018, Robson J determined that it was appropriate that the Neighbouring Owner be joined to the proceedings as the Second Respondent (see Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194). His Honour's orders giving effect to that determination made it clear, in order (4), that: (4) The second respondent's contentions are limited to those identified in paragraph [16] (1), (2) and (3) of the judgment of Justice Robson dated 29 November 2018.
The Chief Judge subsequently assigned the Class 1 merit appeal to me for determination.
The attitude taken by the Applicant and the Council to the terms of order (4) set out above was not merely that the identified matters were the only additional contentions to be addressed as a consequence of the joinder of the Neighbouring Owner as the Second Respondent but that the Neighbouring Owner's experts were only permitted, in the joint conferencing process leading up to the hearing before me, to address those matters arising out of the additional contentions nominated in the order. The Applicant and the Council took the view that those experts were not permitted to engage with the contentions that had been originally pressed by the Council as warranting refusal of the Applicant's proposed development.
The next procedural step to be noted is that, on 10 January 2019, Acting Registrar Walton granted the Applicant leave to rely on a further amended development application, including a suite of amended plans. The Acting Registrar agreed to a submission from the Council that further public notification would be required of these amended plans. As a consequence, in addition to the hearing dates of 24 and 25 January 2019, which had initially been allocated before me, an additional hearing date was allocated on 15 February 2019 to permit any further public submissions concerning the Applicant's now revised development to be addressed.
The final procedural matter requiring noting is that, on 18 January 2019, the legal representatives of the Neighbouring Owner (now the Second Respondent) filed a Notice of Motion seeking, as its functional outcome, the removal of order (4) made by Robson J and set out earlier at [15]. This order was sought as what was considered to be, by the Neighbouring Owner's legal representatives, the appropriate way to permit the Neighbouring Owner's experts to address the full range of contentions in the proceedings (being the contentions pressed by the Council together with those imported as a consequence of Robson J's order (4)).
As the Neighbouring Owner's Notice of Motion had been set down for determination at 9:30 am in Court on 24 January 2019 (being the first day of the merit appeal hearing before me; a merit appeal hearing set down to commence on site at that time), I had my Associate contact the parties and advise them that I proposed to deal with the motion prior to the nominated date as the outcome of the motion had potential impact on how the merit hearing ought be conducted.
On the afternoon of Tuesday 22 January 2019, I dealt with the Notice of Motion on behalf of the Neighbouring Owner seeking the deletion of order (4) of the orders made by Robson J. Written submissions were provided to me, prior to this hearing, on behalf of the Neighbouring Owner and the Applicant.
A reading of these submissions (and the affidavit which had been filed on behalf of the Neighbouring Owner in support of its motion), made it clear that the issue sought to be canvassed did not relate to the scope of the contentions permitted to be advanced by the Neighbouring Owner (these having been defined by Robson J's order (4)) but was confined to the extent to which the planning and traffic experts engaged by the Neighbouring Owner were entitled to participate in joint conferencing with the relevant experts on behalf of the Applicant and the Council and to contribute to the relevant joint expert report arising from such conferencing. As a corollary to this, the extent to which the Neighbouring Owner was to be permitted to make submissions about matters put in contention by the Council (rather than merely those permitted by Robson J's order (4)) was also involved.
Whilst the written submissions and the matters canvassed (briefly, but heatedly) at the commencement of the hearing of the motion undoubtedly gave rise to potentially forensically fascinating jurisdictional and ethical issues, those matters and the substantive outcome sought in the motion were, as I advised the parties early on in the motion hearing, irrelevant to the matters actually in dispute between the parties. It is, fortunately, unnecessary to set out or determine any of those potentially forensically fascinating matters as there was a simple path to determining the underlying dispute.
It turned out that the Neighbouring Owner's town planner had been permitted to participate fully in both that joint expert conclave and to express her views on all relevant matters in the joint expert report arising from it. A similar position, it was put on behalf of the Neighbouring Owner, had not arisen with respect to the Neighbouring Owner's traffic expert.
As the question of how the merit hearing was to be conducted lay in my hands, as the trial judge, and given the discretion embodied in s 38(2) of the Court Act as to the way in which I might inform myself about the issues genuinely in dispute in the proceedings (subject, always, to the principles of procedural fairness and natural justice), I directed that the Neighbouring Owner's traffic expert was to be permitted to engage with the relevant experts of the other parties. The process for permitting this to occur (whether prior to the commencement of the hearing on site or subsequent to that inspection) was to be resolved informally.
I also ruled that the Neighbouring Owner, having been joined, was a party for all purposes and was only subject to the limitation as to the additional contentions permitted to be pressed on its behalf by the scope of order (4) made by Robson J. This meant that, when the matter came to the merit hearing, counsel for, and experts engaged by, the Neighbouring Owner were to be permitted to make submissions about or give evidence concerning (as relevant to their role) all matters put in contention concerning the appropriateness of the Applicant's development application in the form as it finally came before me for determination.
In dealing with the procedural matters genuinely in dispute between the parties (consistent with the objectives set in s 56 of the Civil Procedure Act 2005 (the Civil Procedure Act)), it was neither necessary nor appropriate to read the affidavit of the Neighbouring Owner's solicitor filed in support of the Notice of Motion. Given that those issues had been dealt with in a pre-trial case management fashion, the outcomes sought in the motion were redundant. As a consequence, I dismissed the motion and reserved the question of costs with respect to it.

[5]

The issues

The issues in the proceedings fall into two distinct categories. First, it is contended by both Respondents that there are jurisdictional impediments that prevent development consent being granted to the Applicant's proposed development. These impediments are said to be:

The Applicant has not demonstrated that access from Hilts Road for a development on the site is not practicable and, thus, cl 101(2)(a) of State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP) acts to prohibit giving consent to the proposed development having access from Leicester Avenue;
The Applicant has not demonstrated that the design of the vehicular access to the site will not adversely affect the safety, efficiency and ongoing operation of Leicester Avenue (a classified road) and that, as a consequence, cl 101(2)(b)(1) of the Infrastructure SEPP acts to prohibit giving consent to the proposed development having access from Leicester Avenue; and
The request for dispensation with compliance of the mandated building height limit set by cl 4.3 of the LEP does not satisfy the necessary requirements of cl 4.6 of the LEP and, thus, the dispensation cannot be granted.

If any one of these issues is resolved adversely to the Applicant, development consent to the proposed residential flat building must not be granted.
The second suite of issues that are pressed by both Respondents are ones where it is said that, on the merits of the proposed development, the design of the proposed development is sufficiently unmeritorious that consent should not be granted on the basis of the present design. There are a range of matters pressed on this basis. Both Respondents submit that, taken together, these merit matters warrant refusal of the application. These merit matters fall into three broad areas: 1. Access and vehicle servicing; 2. Solar access; and 3. Whether or not a sufficient number of apartments in the proposed development would have adequate ventilation.

[13]

Clause 4.6 of the LEP

This provision of the LEP provides the basis by which a development proponent can seek dispensation from compliance with an applicable development standard. As later discussed, the clause sets tests which must be satisfied before such a dispensation may be granted. The clause is in the following terms: 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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence.

[16]

The Triangle DCP

The Triangle DCP came into effect on 30 May 2014. Self-evidently from this date, its terms could not have applied to those residential flat buildings which had earlier been constructed within the Triangle. All of the residential flat buildings which had been observed during the course of the site inspection had been constructed under the previously applying development control regime.
This proposed development is the first in the Triangle to be assessed against what is now contained in the Triangle DCP. Of particular relevance are two plans contained in the DCP.
The first is that showing the proposed new street layout that is intended to follow from, amongst other things, the proposed acquisition by the Council of the Neighbouring Owner's land. This plan shows the through-connection from the proposed extended head of Hilts Road, the proposed new south-running lane from that point to the reconfigured southern end of Cooper Street, and the reconfiguration of Cooper Street to alter its intersection location with Leicester Avenue. This proposed intersection is to be signalised and located a little to the north of the present intersection between these two streets. This map (Triangle DCP, page 16, Map 5) is reproduced below:
Leicester Avenue is the right-hand boundary of this plan and the Neighbouring Owner's land is the parcel traversed by the orange marked proposed pedestrian and cycle access joining the proposed new head of Hilts Road to Leicester Avenue.
The second map is one which shows what the Triangle DCP proposes be the number of storeys that will result from the redevelopment of each of the sites within the Triangle when the full redevelopment process has been completed.
In this context, it is to be observed that the site, the Neighbouring Owner's land, and all other sites in the Triangle to the south of this site and to the south of both Hilts Road and Clarence Street, are yet to be redeveloped in any fashion and that the only visual evidence observed during the course of the site inspection was the arrangement of the security fencing toward the southern end of the Triangle where the configuration of the southern end of the laneway proposed to run southwards from the extended head of Hilts Road could be seen.
A copy of the map (Triangle DCP, page 10, Map 2) that shows the number of storeys anticipated to be achieved as a result of the finalised redevelopment of all sites in the Triangle is reproduced below:
As can be seen from this plan, the proposed redevelopment of the various sites with frontages to Leicester Avenue is envisaged to be taller at its northern and southern ends with stepping down and then up in the progression of the redevelopment outcomes. It is also to be observed that that which had actually been redeveloped prior to the coming into effect of the Triangle DCP is accurately depicted as to the number of storeys that have comprised the development yield on those redevelopment sites observed during the course of the site inspection.
The relevant LEP Height of Buildings map sheet element for the Triangle is reproduced below:
The relevant elements from the key to the map are reproduced below: Site Key Height in Metres P1 17.0 T1 25.0 T2 26.0 U1 31.0 U2 32.0 V 35.0 W 41.0 Y 50.0 Z 59.0

[17]

The site inspection

As is customary in merit appeals such as this, the substantive proceedings commenced on site at 9.30 am on the first day. I was accompanied, during the course of the site inspection, by counsel for the three parties to the proceedings and those advising and instructing them. We met in Hilts Road, the road that is, at present, a dead-end street which runs east-west and terminates at the rear of the Neighbouring Owner's property.
As later discussed in more detail (and was the cause of the litigation in the Court of Appeal to which earlier reference has been made), the Council proposes to acquire the Neighbouring Owner's property. This acquisition will permit an extension to the east of Hilts Road and, on the remainder of the Neighbouring Owner's property post-acquisition, the creation of a pedestrian and cycle access way from the end of Hilts Road, eastward to Leicester Avenue. This access way is to run adjacent to the southern boundary of the site, with the remainder of the Neighbouring Owner's property post-acquisition becoming a community park.
The Council also proposes, as part of the overall scheme for the redesign of access patterns within the Triangle, the creation of a laneway running south from the proposed new head of Hilts Road. This proposed revised street pattern is made clear in the plan in the Triangle DCP reproduced earlier.
During the course of the site inspection, we circumnavigated the Triangle, using the existing road system footpaths. The salient elements of the site inspection are described below: 1. At the meeting point at the head of Hilts Road, I was shown the relationship of the present Hilts Road alignment with the boundaries of the Applicant's site and the Neighbouring Owner's property. We also observed the design elements of the eastern façade of the residential flat building with a frontage to Hilts Road and located immediately adjacent to the western boundary of the Applicant's site; 2. Also at the commencement of the site inspection, we observed a large number of waste and recycling wheelie bins that had been emptied and were being returned to the waste storage area for the residential flat building at the north-eastern end of Hilts Road. It was obvious that the waste collection from these premises was carried out on a kerbside basis with a significant number of each type of bin being placed out for the collection vehicle. Very limited on street parking was available in Hilts Road at the time of the site inspection. It is also to be noted that, during the remainder of our circumnavigation, we observed that kerbside waste and recycling collection services had also been effected for other residential flat buildings that had been redeveloped in the Triangle in the comparatively recent past; 3. During the walk along the northern footpath of Hilts Road, the footpath on the eastern side of Cooper Street to the north of Hilts Road and, turning to the west, the walk along Clarence Street, we observed the nature of the access apertures and height clearances to the basement car-parking of a number of existing residential flat buildings. These entrance apertures each had clearance heights that were only modestly above two metres. During this walk (and other relevant elements of the circumnavigation where redevelopment had already occurred), the heights of the various residential flat buildings were pointed out. It is to be noted, as it is a matter requiring further consideration later, that all of this redevelopment was undertaken prior to the coming into effect of the Triangle DCP and, thus, without the controls that are now proposed by the Triangle DCP, applying to them in the terms proposed by this DCP; 4. We walked along the Parramatta Road frontage of the Triangle, observing the nature of the landscaping in, and the extent of the setbacks of, the ground-level elements of the redevelopment within the Triangle along this its northern boundary. The entirety of this element of the Triangle, it is to be observed, has been redeveloped in the comparatively recent past; 5. As we walked along the Parramatta Road footpath between Cooper Street and Leicester Avenue, one of the buildings which we passed, an apparently mixed use one, had an access aperture signed having a 3.4 m clearance; 6. At the intersection of Leicester Avenue and Parramatta Road, we crossed the former to look backwards to the south-west to obtain a (comparatively limited) appreciation of the nature of the Triangle and such existing redevelopment as has been effected; 7. Whilst at this intersection, I observed the extent of queuing of northbound traffic in Leicester Avenue and the fact that, at this time, by now after 10.00 am, the extent of that queuing was not cleared by a single green-phase cycle of the lights at the intersection, when that green-phase cycle favoured northbound traffic in Leicester Avenue; 8. We then entered the large, publicly accessible communal open space of the residential flat building on the south-western corner of the intersection. From this courtyard (an extensive hard-stand area enclosed by the U-shaped redevelopment on this site but open to the south toward the rear of the Applicant's site and the residential flat building at the head of the present configuration of Hilts Avenue, I was able to obtain a limited appreciation, from the ridgelines of the existing development to the south on the site and the first element on the Neighbouring Owner's property, of the nature of the rear of these allotments. I was also able to observe, for the site, its relationship with the eastern façade of the residential flat building at the north‑eastern end of Hilts Road as that road is presently configured; 9. At a point along the Leicester Avenue frontage of the site, Ms Marshall-McClelland, the Applicant's traffic expert, showed me the general location of the driveway proposed to provide vehicle access from Leicester Avenue to the Applicant's proposed development. Although this identification gave rise, at that time, to potential issues concerning the fate of the three street trees (the southernmost being a camphor laurel with the two to the north being Brush Boxes), Ms Irish subsequently advised that the Council accepted that all three street trees would be removed if consent was granted for the Applicant's proposed development; 10. We entered one of the allotments within the site (the site being proposed to be consolidated as part of its redevelopment), walking through the now derelict dwelling on this allotment in order to observe, from within the site, the relationship of the site with the residential flat building at the north-eastern end of the present configuration of Hilts Road. Although, at this point and, earlier from the courtyard in the development on the south-western corner of the intersection of Parramatta Road and Leicester Avenue, the extensive vegetation that exists on the site was able to be observed, it is to be noted that the development for which consent is sought in these proceedings on the site would necessitate the removal of the entirety of the existing vegetation on the site, in addition to the three street trees at its frontage; and 11. We then completed our circumnavigation of the Triangle, observing, during this transit, the present arrangement of Cooper Street and its intersection with Leicester Avenue; the location of the proposed reconfiguration of Cooper Street and the location of its proposed new signalised intersection with Leicester Avenue after the closure of the present southern element of Cooper Street and its incorporation as part of the redevelopment sites to the north and east of that existing element; the fenced-off head area of what is proposed to become the north-south laneway at the point where that laneway will, when constructed, intersect with the proposed east-west realigned element of Cooper Street. We then returned to Hilts Road, from whence we had embarked.

[19]

The further amended application

When the hearing resumed on 15 February 2019, Mr Tomasetti made a further application to modify the development application being assessed in these proceedings. The changes to the plans for which leave was sought were, for the very great part, reflective of the position proposed by Mr Tomasetti on the advice of Ms Marshall-McClelland during the earlier hearings.
This proposal, to lower the basement parking levels of the proposed development to make an increase in the clearance at the entrance ramp and on the first basement level, had, as an option, been the subject of discussion by the planning and urban design experts toward the end of the first phase of this hearing. The plans for which leave to amend was sought formalised that proposed change.
In addition, the plans proposed that the gate at the end of the footpath along the southern boundary within the site at its western end should be converted to be a sliding gate rather than a swinging one. This gate (however, not its method of actuation) requires further consideration later in this decision in the context of assessment of the adequacy of general access arrangements for the proposed development.
For the purposes of assessing this request for leave to rely on an amended development application, there was nothing in the nature of the proposed changes that was a matter of controversy and, as a consequence, the leave to amend was granted.
However, s 8.15(3) of the EP&A Act provides that, when such leave is given, it is necessary to consider whether or not the amendments to the development application before the Court were minor or not. If the amendments were not to be regarded as minor and leave to amend is granted, the legislation mandates that a costs order be made against the development proponent to recompense the consent authority for the additional costs incurred as a consequence of the amendments which have been permitted.
For the purposes of this amendment application, Ms Irish indicated that the Council considered that the amendments were not minor and, as a consequence, a compensatory costs order was required. Unsurprisingly, Mr Tomasetti disputed this proposition and indicated that the Applicant submitted that the amendments were, in fact, to be characterised as minor.
In order to permit the hearing of the evidence of the traffic and parking experts (which evidence effectively took the remainder of this hearing day), submissions on whether or not there was to be a costs' consequence of the leave to amend were deferred and I indicated that I would deal with determination of that matter in this decision. I do so in the following section, for convenience in the flow of my reasoning.

[20]

Costs of the 15 February 2019 amendment

I have earlier set out the nature of the amendments for which leave was given on 15 February 2019. The purpose of the amendments was to alter the plans so that further clearance would be provided at the mouth of the building on the ramp into the first level of the basement. Also to be effected was an increase the clearance of that level of the basement in order to permit the proposed small waste collection vehicles (discussed later in this decision) to enter that upper level of the three basements for the purposes of undertaking waste collection.
The consequence of the increase in clearance would also be the further setting down of each of the two lower levels of the proposed basements but without increasing the presently proposed clearances on those basements. Self-evidently, the result of that is that the additional proposed excavation would simply be necessary for the additional clearance at the uppermost of these three basement levels.
In addition, the revised plans also incorporated two warning signage elements concerning clearance at the entry ramp mouth. The first of these was a height marking bar running in a north-south direction and the second was a sign on the northern wall of the substation forecourt. These are later discussed in a different context. For the present purposes, however, it is sufficient to observe that these additional signage elements are ones of modest proportions in the overall scheme of the proposed development.
Given the substantial nature of the overall development proposed, when coupled with the fact that there were no significant consequential design outcomes necessary to be effected as a consequence of these amendments, I am satisfied that the amendments are appropriate to be regarded as minor. As a result, there is to be no order for costs in favour of the Council for such additional assessment (insignificant as I would expect it to be, in light of the matter being dealt with in the evidence in the fashion as occurred) arising from the permitted amendment.

[21]

The mention on 20 February 2019

At a mention on 20 February 2019, four matters were raised for the Applicant. These were: 1. The preparation of additional expert evidence on behalf of the Applicant to address solar access and cross-ventilation issues arising out of assertions that had been made in the Design Verification Statement dated 11 January 2019. This had been presented to the joint conference of the town planning and urban design witnesses and discussed by them in their joint expert report (Exhibit 7) and accepted by Ms Francis, the relevant expert for the Neighbouring Owner, as incorporating the accurate position with respect to these matters. As a consequence of her subsequent further consideration of this Design Verification Statement compared to the plans for the proposed development, Ms Francis had concluded that that which was set out in the Design Verification Statement of January 2019 did not accurately reflect the position disclosed by the plans concerning solar access and cross-ventilation. The further evidence to be provided by the Applicant for the purposes of the resumed hearing in March 2019, was to address these issues and to provide an updated Design Verification Statement; 2. Mr Tomasetti indicated that Ms Marshall-McClelland had provided an explanation of the discrepancies in the evidence concerning pedestrian counts. He indicated that her explanation was that there had been transpositional errors in entering the raw data which had been harvested into the modelling software which had been used. A copy of this explanatory material was to be provided to the other parties for consideration and the question of its admission into evidence dealt with on the next hearing day. 3. Although the matter had been set down for two hearing days; had already taken up three full hearing days; and had been listed for a fourth hearing day, it was put to me that, in light of the fact that there had not been any significant time spent by the planning/urban design witnesses in the giving of their oral evidence, prudence dictated that a further, fifth hearing day being allocated. This was done.

[25]

An application to reopen is foreshadowed

For the purposes of undertaking closing addresses, the Respondents had agreed that Mr Robertson would make his closing submissions first. As a consequence, Mr Robertson finished making those submissions late on the afternoon of 6 March 2019. During the course of those submissions, he addressed, comprehensively, what he said were fundamental defects in the Applicant's request pursuant to cl 4.6 of the LEP. The request had been prepared by Dr Shiels.
It is unnecessary, for the purposes of this discussion of what occurred when the hearing resumed on 25 and 26 March 2019, to detail those criticisms, Mr Tomasetti's response to them, or my conclusion as to the adequacy of the cl 4.6 request then before me. Those matters are dealt with in the separate discussion of whether that cl 4.6 request has provided a proper basis upon which I could conclude that the Applicant should be permitted the dispensation from compliance with the Building Height Development Standard otherwise mandated by the LEP.
The transcript of the afternoon of 6 March records Mr Tomasetti expressing his concern that the criticism made by Mr Robertson of the cl 4.6 request may have had validity. As these proceedings were to go over to a further day upon which Ms Irish would make her closing submissions, and Mr Tomasetti would reply, Mr Tomasetti foreshadowed that the Applicant might need to contemplate whether or not to seek to rely upon some further revision of the cl 4.6 request. His comments and the subsequent relevant exchange with me on this point warrant being set out. The transcript records (Transcript, 6 March 2019, page 61 line 27 to page 62 line 39): TOMASETTI: Your Honour, I want to raise another matter, in Mr Robertson's submissions which could bear upon this question. I've heard Mr Robertson's carefully constructed legal and factual submissions on this cl 4.6 objection. I have looked at the transcript and I've also looked at the contentions that were raised. Much of what he's put going to the important matter of jurisdiction is not in any of the contentions which were raised either by the Council or his own client. As we listened to it, we hear the word jurisdiction, jurisdiction, jurisdiction, coming up continuously. This is really the first time that my learned friend has revealed the arguments that he wished to raise on these matters. I've heard his submissions in relation to that part of the cl 4.6 objection that relates to the abandonment argument. I have to confess and concede that that part of the objection could probably has missed the mark entirely, by addressing earlier planning instruments, but that was never the subject of the contentions that were permitted to be raised. The contention that was raised against us, by Mr Robertson's client was Robson J contemplated and permitted to be advanced is that found in para 3(i) which reads as follows "my client's revised cl .46 objection does not deal with the issue that part of the proposed development has a height of 12.5 metres where the maximum building height at that point is zero metres". That was the contention his client was going to advance which were subsequently abandoned. ROBERTSON: We're addressing a 4.6 request that wasn't made at that time. TOMASETTI: But it doesn't matter Mr Robertson, the contention ‑ you're bound by your contention and by his Honour Robson J orders. HIS HONOUR: No. I thought I dealt with on, I think, 15 February. What his Honour limited was the additional contentions Mr Robertson's client was permitted to plead. He did not limit the totality of the contention including the Council's contentions that Mr Robertson's client was permitted to seek to maintain. TOMASETTI: Your Honour, with respect, it may have been my fault because I paused, but I was about to add that qualification, and the contention of the Council is relevantly found in para 3 of their statement of contentions. I'm seeking instructions your Honour, but I want to foreshadow, that if it comes down to a question of technical compliance of a written document with the requirements of cl 4.6 I'm going to seek an opportunity to revise that document and put it before your Honour. I can't do these addresses and‑‑ HIS HONOUR: If that were even remotely to be contemplated, I'm not going to deal with that on the run because cl 4.6 that is the tests that are contained in cl 4.6 at least as I understand it, have been in contention for some time. Even if they are not, they contain jurisdictional tests which, unless I'm satisfied about them, I am unable to go further and I am concerned that saying well we might want to try and rely on a further cl 4.6 request, a recast document, without going to whatever might be in it, it seems to me that there is at least some significant potentiality that Aon type issues might arise. I'm not going to try and deal with that on the fly. TOMASETTI: I may have to put on a motion. HIS HONOUR: You may, but at the moment, and I hear that you may, and I'm not making any comment about your right to do so or otherwise or what might be said for or against whatever proposition was contained in that motion. At the moment I am anxious to find an additional two hours to permit the present course of these proceedings to be finalised. If between now and then you are instructed to file some motion seeking to do something else, then I'll deal with that the necessary time.
As can be seen from about the mid-point in the above extract that Mr Tomasetti foreshadowed what he described as "an opportunity to revise that document [the cl 4.6 request]".

[26]

The reopening application

On the afternoon of 21 March 2019, a Notice of Motion was filed for the Applicant seeking leave to reopen the proceedings in order to rely upon a document identified as being a "Further Revised" cl 4.6 request. The Notice of Motion was accompanied by an affidavit from Dr Shiels. This affidavit had been deposed on 21 March 2019. It had exhibited to it a folder of material, including the cl 4.6 request proposed to be relied upon if leave to reopen was granted.
Although Dr Shiels referred to the history of the past evolution of the cl 4.6 request that became Exhibit C, it is not necessary to reproduce those elements of his affidavit. It is, however, appropriate to set out what are the relevant elements of his affidavit dealing with the reasons for, and development of, the "Further Revised" cl 4.6 request for which leave was sought by the Notice of Motion. Those paragraphs are (4) and (34) to (37) of Dr Shiels' affidavit. Those paragraphs appear below: 4 I have now prepared a further amended written request under clause 4.6 of the CBLEP. I have read extracts of a transcript of the submissions of Senior Counsel Mr Robertson of 6 March 2019 to the Court criticising the existing clause 4.6 written request. At no point in the joint report did Ms Francis criticise the clause 4.6 request that I had then written. … Second Respondent's comments in closing submissions 34 The Applicant's solicitors provided me with a copy of the extracts from and the transcript from the hearing in these proceedings on 6 March 2019. I read Mr Robertson SC's closing submissions where I saw that detailed criticisms were made of My Second Further Revised Clause 4.6 request. 35 Reading the extracts of the Second Respondent's closing submissions was the first time that the concern of any party or the Court regarding the content or form of the clause 4.6 request had been brought to my attention. 36 I saw for example for the first time that my request was said to be in error where it asserted that the buildings along Parramatta Road were non-compliant with the mapped heights for those land parcels under the amended LEP. There were also arguments relied upon in the clause 4.6 request that were criticised by the Second Respondent in closing as to whether the objectives of the height standard would be "thwarted" if the standard was applied strictly, whether the standard has been "abandoned or destroyed", and whether objective 3 of the High Density residential zone was affected by the height variation. Mr Robertson also contended that the clause 4.6 request did not ask the "correct question" with reference to various Court authorities. I did not see those issues identified in the Contentions raised by either Respondent, nor were they considered in the joint planning report. 37 After reading those criticisms, I felt some of the criticisms of my clause 4.6 request were valid. My reference to the Bakehouse was not justified. I made an error arguing that the Council had abandoned its height standard in the Canada Bay LEP 2013. To that end, I have now prepared an amendment to the Second Further Revised Clause 4.6 which is called "Further Revised Clause 4.6 Application to Vary a Development Standard: Height of Buildings" dated 21 March 2019 (Third Further Revised Clause 4.6). I sought and received legal advice concerning recent authorities concerning clause 4.6. The Third Further Revised Clause 4.6 responds to the Second Respondent's submissions raised on 6 March 2019 and corrects errors that I have since identified within the document. Refer to Tab 8 of Exhibit GAS‑1.
Dr Shiels was cross-examined at some length on the basis not only of the version of the cl 4.6 request now sought to be relied upon, but also on the basis of a "tracked changes" version of the document that enabled an understanding of the extent to which changes had been made to the version of the cl 4.6 request then in evidence as Exhibit C. The tracked changes version of the (now) proposed cl 4.6 request became Exhibit 22.
Dr Shiels was also cross-examined on the process of preparation and settlement of the terms of his affidavit in the period leading up to his adoption of it.

[27]

Consideration and conclusion on reopening application

It is unnecessary for me to analyse, in great detail, that which was revealed by the cross-examination of Dr Shiels on these matters. It is sufficient to make some brief observations of the factual conclusions to be drawn from this cross-examination and also from the terms of Exhibits 22 and 23.
First, it was clear from Dr Shiels' oral evidence, and from the terms of e-mail exchanges between Dr Shiels and the Applicant's solicitors (e-mails which became Exhibit 23), that the original version of the proposed content of Dr Shiels' affidavit had been prepared by the Applicant's legal advisors entirely without input from him. The e-mail exchanges in Exhibit 23 made it clear that there were a number of iterations of the draft affidavit in which Dr Shiels' proposed that changes be made to the draft to reflect what he considered to be the appropriate content of his evidence.
Whilst many of those changes might be regarded as minor, or merely matters of form, others were of a more substantive nature.
It is not necessary for me to undertake a detailed analysis of those changes proposed by Dr Shiels, it is sufficient to note that at least some of the more substantive elements proposed by Dr Shiels for incorporation in his affidavit did not find their way into the executed version of the document filed in support of the Notice of Motion seeking leave to reopen.
Second, the tracked changes version of the proposed cl 4.6 request involved substantial alterations to the document in Exhibit C. Although I accept Dr Shiels' oral evidence that some elements of the new version simply constituted rearrangement of various existing elements in Exhibit C, my examination of Exhibit 22 leads to the conclusion that significant elements of the rearranged material (if not virtually its entirety) were matters of a factually descriptive nature rather than the analytic elements contained in the document necessary to address matters mandated by cl 4.6(3) of the LEP.
Of the analysis required by the clause as had been set out in Exhibit C, significantly large proportions of it (well more than a majority, in my assessment) had been deleted and replaced with material that was substantively different to that which had been advanced in Exhibit C, as the basis for satisfying the mandated tests for the dispensation from compliance with the otherwise mandated height limit. The document now sought to provide the basis for this dispensation is not, in reality, a mere revision but is, more truthfully, substantially a new document.
Finally, with respect to the content of this proposed substituted analysis, I have no proper understanding of how much (or, perhaps more correctly, how little) of the analysis in fact reflects Dr Shiels' opinion rather than words put in his mouth, like the words from a marionette in a sophisticated puppet show.
Dr Shiels admitted, whilst under cross-examination, that the version of the document exhibited to his affidavit was the product of not merely extensive drafting by the Applicant's lawyers, but had been the subject of two separate "workshops" (to use Dr Shiels' own expression) conducted in the chambers of Mr Doyle, the Applicant's junior counsel, with the active participation of Mr Doyle and Ms Edwards, an instructing solicitor on behalf of the Applicant. During one of these workshops, there was also telephone conference participation by an architect from the firm who have prepared the plans of the proposed development for which consent is sought.
There are three reasons why I concluded that it was not appropriate to permit the Applicant to substitute what was, in any substantive analysis sense, a virtually fresh cl 4.6 request to that which had been relied upon since the commencement of the hearing. Although a range of minor amendments had also been made, they were of an entirely corrective nature to reflect changes in the various plan iterations arising from amendments that had taken place during the course of the hearing process. These reasons were: 1. The material came in response to the closing submissions by Mr Robertson for the Neighbouring Owner at a time when all the evidence had closed and, having heard Mr Robertson's submissions, Mr Tomasetti identified the possibility of a significant deficiency in the material upon which the applicant had relied. The proposed development, with its height exceedence, had first come before Smithson C for the purposes of a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 in February 2018. Although the design had changed significantly as a consequence of the Court of Appeal decision, the necessity for a successful cl 4.6 request was not altered by that decision. Acquiescence to permitting non-compliance with the building height mandated by the LEP had been a live matter for the whole of that time. No good reason was advanced as to why the necessity for a fresh document had not been identified at an appropriate earlier time. This delay, in itself, is sufficient to refuse the application for leave (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98] - [103] and [113] - [114]); 1. Second, for the reasons I have earlier set out, if leave was given to rely on the new document, I could not be confident that that which was contained in it was a true reflection of Dr Shiels' evidence. Despite Dr Shiels indicating, in re-examination, that the opinions expressed in the proposed cl 4.6 request were ones which he could adopt and support, the nature of the workshopping process involving Mr Doyle and Ms Edwards whereby the bulk of the analysis (setting aside the rearrangement of the earlier factual material which could be attributed to Dr Shiels) was such that I was not able to conclude that the document genuinely reflected Dr Shiels' opinions. As Ms Irish said, as a rhetorical flourish during her closing submissions on the Motion, I would be, in some doubt as to who would be the appropriate author to have in the witness box with the town planners for the Council and the Neighbouring Owner if I permitted reliance on the new document (as I had concluded that further joint conferencing and expert planning evidence would be appropriate if I was to permit reliance on this new document). This, in itself, was also, in my view, a sufficient basis to reject giving leave to amend; and 1. Third, the question of the adequacy of the cl 4.6 request had been in play since the first Statement of Facts and Contentions filed by the Council on 24 May 2017. Although the pleadings did not expressly engage with what were said to be the inadequacies of the document in the fashion proposed to be addressed by the revised request, nonetheless, the adequacy of the document had been in contention for the whole of that period. In addition, although the matters pleaded by the Council and, to a very limited extent, by the Neighbouring Owner did not precisely reflect matters pressed by Mr Robertson in his closing submissions, the position is that the adequacy of the cl 4.6 request had been in play throughout the hearings before me. It is to be observed that the various tests set out in cl 4.6(4) are jurisdictional and the failure to satisfy any one of them acts to prevent the request from being agreed. The importance of a satisfactory cl 4.6 request is, therefore, of fundamental importance to the granting of development consent for this development proposal. No satisfactory reason was advanced to explain why the deficiencies necessitating the new document had not been identified earlier. This reason would not, in itself, warrant refusal of leave to amend but does reinforce my first reason of the unacceptable lateness of the application seeking to amend.
The primary objective for litigation of this type is set by s 56 of the Civil Procedure Act 2005. This is the just, quick and cheap resolution of the issues genuinely in dispute between the parties. Had I granted leave to amend, it was my estimate that at least a further two, and possibly three, hearing days would be required. Although a costs order in favour of each of the Respondents would have provided at least partial compensation for that time and expense, I also considered that this would not be an adequate response given the lateness of the application providing the first reason for rejection of the application for leave to amend.

[31]

The practicability of rear access

The first test, set by cl 101(2)(a), requires me to assess whether practicable and safe access from a local road is available to the site. Only if I am satisfied that no access from a local road which satisfies each of these criteria is the first of the prohibitory criteria in cl 101(2)(a) is satisfied, thus permitting me, standing in the shoes of the Council as the consent authority, to engage with the question of whether prohibitory criteria set by cl 101(2) are also satisfied.
The position advanced on behalf of the Neighbouring Owner has, as its foundation, the proposition that there is no basis upon which I could be satisfied that access to a proposed development on the site could not practicably be obtained from Hilts Road. There were a number of strands woven together as to support this proposition.
The first of them, as I understood Mr Robertson's submissions, was that the basis upon which the RMS formed the requisite degree of satisfaction, that the provision did not act as a barrier to it issuing terms of approval for access from Leicester Avenue, was that, within the RMS, there had been a fundamental understanding of the effect of the decision of the Court of Appeal in Al Maha. Exploration of the basis for this submission occupied a deal of the time of Mr Robertson's cross examination of Mr Pegg, the Senior Land Use Planner employed by the RMS, who had had the major role, under supervision of the signatory to the letters, in the preparation of the RMS's letters agreeing to permanent access to the proposed development being from Leicester Avenue.
It is, I am satisfied, unnecessary for me to address that element of the submissions on behalf of the Neighbouring Owner as the RMS was not (and is not) the consent authority for the purposes of cl 101 of the Infrastructure SEPP. This is because the term "consent authority", in this environmental planning instrument, is not relevantly defined to mean the RMS and has, as its ordinary and natural meaning, the position that the Council was the consent authority and thus, in this appeal, that role is to be fulfilled by the Court.
It is in that context that I turn to consider whether or not practicable and safe access to a proposed development on the site cannot be obtained from a local road (Hilts Road).
First, I observe that there is no suggestion that access from Hilts Road would not be safe.
However, the jurisdictional question here engaged is whether such access from Hilts Road could be regarded as not being practicable.
Mr Robertson's submission was that the Applicant had not explored any of the potential ways by which access via Hilts Avenue might have been able to be achieved. He proposed that there were a number of ways that such access might have been achieved.
In the first instance, his argument commenced with the proposition that no approach had been made by the Applicant to the Neighbouring Owner seeking consent from the Neighbouring Owner for such access. The proposition that there had been no such request made of the Neighbouring Owner was not contested by the Applicant.
Mr Robertson also pointed to three available statutory pathways via which the Applicant could have sought to have access across the Neighbouring Owner's land imposed had there been an unsuccessful request to the Neighbouring Owner for consent to the provision of such access. Those available statutory pathways, in the alternative, were said to be: 1. An application pursuant to s 40 of the Court Act seeking to have this Court impose an easement for access in favour of the Applicant across the Neighbouring Owner's land; 2. An application to the Supreme Court pursuant to s 88K(1) of the Conveyancing Act 1919 seeking the imposition of an easement for access over the Neighbouring Owner's land; or 3. An application to the Minister pursuant to s 182(1) of the Roads Act 1993 (the Roads Act) requesting the Minister to exercise the available power to acquire the necessary land to create a public road extension to Hilts Road to provide access to the site directly from what would thus become a local public road (in contrast to the statutory imposition of an entitlement to cross land which would remain in the ownership of the Neighbouring Owner).
Whilst the possibility of access across the Neighbouring Owner's land, whether by consent of that owner or by statutory imposition, might potentially give rise to issues of permissibility, given the RE1 zoning now applicable to the Neighbouring Owner's land, it was the position advanced by Mr Robertson that, for the purposes of practicability as mandated to be tested by cl 101(2)(a), there had been no attempt whatsoever by the Applicant to undertake that task and address these options and any issues associated with them.
In this context, definitions of "practicable" from both the Oxford English Dictionary and the Macquarie Dictionary (the latter being the preferred dictionary in this jurisdiction) were read onto the transcript by Mr Robertson, but were not tendered (Transcript, 6 March 2019, page 47, line 34 to 40). A copy of these extracts was provided to the Court. The accuracy of what was read onto the transcript was not contested.
The relevant portion of the Macquarie Dictionary definition is in the following terms: Capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible.
That, in the Oxford English Dictionary is in similar but not identical terms, reading: Capable of being carried out in action; feasible.
Whilst the Court of Appeal has made clear (see recently Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 per Basten JA at [37]), the caution with which dictionary definitions are to be approached, there can be no doubt that, however the concept of "practicability" might be defined for present purposes, the Applicant had not taken any steps to test any of the options potentially available for the provision of access across the Neighbouring Owner's land from Hilts Road.

[33]

The Applicant's position

Mr Tomasetti submitted that the matters pressed by the Neighbouring Owner concerning the practicability of any of the potential avenues for obtaining access to the site from Hilts Road were to be answered in one of two ways.
First, with respect to the prospect of an easement being able to be negotiated with the Neighbouring Owner over the Neighbouring Owner's land, he submitted that the litigation history of the Neighbouring Owner demonstrated the vehemence of the resistance of the Neighbouring Owner to the Applicant's proposed development. He also drew my attention to the terms of letter from the Neighbouring Owner's solicitors to the Council's legal representatives, dated 10 August 2018 (Exhibit B, Tab 5). This letter made it clear that the Neighbouring Owner proposed to litigate against the Council, should the Council endeavour to acquire compulsorily the Neighbouring Owners' property.
He submitted, from all of this, that it was necessary and appropriate to assume that the Neighbouring Owner would never agree to access to the Applicant's proposed development being effected from Hilts Road via the Neighbouring Owners' property.
He also submitted that that which is engaged in considering the test mandated by cl 101(2)(a) of the Infrastructure SEPP is that, in this context, access from Hilts Road would need to be available, as at the date of my determination of this development proposal. He submitted that the use of the verb "is" in cl 101(2)(a) made that clear.
Although the three statutory options proposed by Mr Robertson might theoretically be available in some indefinite, future context, Mr Tomasetti submitted that the effect of them not being available at the present time meant that the possibility of access over the Neighbouring Owners' land utilising any of those three statutory processes did not satisfy the requirement that the access could be regarded as now being available, that being the basis upon which the provision should be interpreted.

[34]

Consideration

It is appropriate, first, to note the absence of any testing by the Applicant of whether access could be obtained from Hilts Road.
I turn, first, to the question of the voluntary granting of an easement over the Neighbouring Owner's land. Although legal process issues might arise if the Neighbouring Owner was to consent to the creation of an easement for the purposes of development on the Applicant's land as a consequence of the zoning of the Neighbouring Owner's land, it seems to me that they are potentially readily surmountable in a cooperative sense by, for example, the Applicant applying for an easement via the vehicle of s 88K(1) of the Conveyancing Act and then that application being settled by consent orders on negotiated terms.
However, it is unnecessary for me to speculate on that point because no approach has been made by the Applicant to the Neighbouring Owner. I am unable to conclude that there is no prospect that the Neighbouring Owner would refuse to entertain such an easement. Whether this is the true position or whether, like the apocryphal story of George Bernard Shaw and his female dinner companion, it would merely be a question of negotiating a price, this is entirely unknown because the Applicant has never sought to find out by asking the question in the first instance.
That failure to test whether the Neighbouring Owner would grant an easement for access to the Applicant is, in itself, a sufficient basis to conclude that I cannot be satisfied that access from Hilts Road to a development on the site is not practicable.
Second, the question of whether or not an easement pursuant to s 40 of the Court Act or s 88K(1) of the Conveyancing Act could potentially be imposed over the Neighbouring Owner's land does warrant some preliminary analysis in this context.
It has earlier been observed that the Neighbouring Owner's land is now zoned RE1 Public Recreation. In 2013, the Court of Appeal considered, in Canterbury City Council v Saad [2013] NSWCA 251, the validity of a decision by Nicholas J (Samy Saad v City of Canterbury Council [2012] NSWSC 389) (Saad) to grant an easement pursuant to s 88K of the Conveyancing Act over land which was, at that time, zoned 6(a) Public Recreation pursuant to the Canterbury Planning Scheme Ordinance 1970. The Court of Appeal found that there was no error by the primary judge in determining that it was possible and appropriate to grant an easement for access to permit residential development on the parcel for which access was sought. In that instance, the land to have the benefit of access was landlocked and all other avenues for access over neighbouring land were unsuccessful.
Self-evidently, the exercise of discretion by the primary judge in Saad was founded on the facts and circumstances of that case. Those matters are, certainly, not replicated in the present circumstances involving access to the site. In addition, as already noted, the Neighbouring Owner's land is zoned RE1 Public Recreation under the LEP. It is unnecessary to reproduce those objectives for the purposes of this discussion. It is sufficient to note that cl 2.3 of the LEP merely requires that, for the purposes of assessment of development within a zone, the consent authority is to have regard to the objectives of that zone. No test of consistency, or of compatibility, is mandated to be applied by the consent authority.
Similarly, it is appropriate to observe that roads are a permitted use within the zone. The question of how that might play should access be sought by an easement might well give rise to issues of characterisation in the fashion described in, and dealt with, by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114.
The power to make an application to the Minister pursuant to s 182(1) of the Roads Act seeking acquisition of land for the purposes of a public road (which, in this instance, would be the extension of Hilts Road) has the potential to trigger the processes under Pt 12, Div 2 of the Roads Act, including, if an applicant is successful in triggering the process, payment of compensation to the person whose land would be acquired for these purposes.
Whilst contested compensation claims for such acquisitions are rare (as observed by Biscoe J at [8] in Ibos Pty Limited v DHSH (Aust) Travel Pty Limited (2007) 152 LGERA 348; [2007] NSWLEC 120), the existence of this case clearly demonstrates that the use of the s 182(1) of the Roads Act process is not merely a theoretical option but one which has had practical engagement in the past for such purposes.
In these proceedings, there is no evidence that the Applicant has made any approach of this nature to the Minister where such a statutory path could provide the potential for practical access to the Applicant's site from Hilts Road. Although there is no remotely possible basis upon which to speculate on the likelihood of success or otherwise of such an application, it is sufficient, for present purposes, that it is clear that this potentiality exists.

[36]

Safety and the operation of Leicester Avenue

The second barrier said to arise from cl 101(2) of the Infrastructure SEPP is the necessity for the consent authority to be satisfied that: (b) The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) The design of the vehicular access to the land;
In this context, Mr Robertson's submissions addressed the steps proposed on behalf of the Applicant to prevent vehicles requiring a clearance of greater than 2.7 metres, seeking to service the site, from entering the site despite the prophylactic measures proposed by the Applicant. He submitted that I could not be satisfied that there would not be occasions when such vehicles would need to reverse out of the site into Leicester Avenue. Such a manoeuvre would be unsafe (a proposition agreed to by Mr Pegg in his oral evidence (Transcript, 6 March 2019, page 16, lines 34 to 39)). This resulted in a breach of cl 101(2)(b)(i) of the Infrastructure SEPP and was fatal to the application.
The Applicant has proposed, in the first of its proffered conditions (Exhibit M), that there be a warning sign on the northern wall of the electricity substation forecourt. The plan that would be incorporated by this condition was drawn by Ms Marshall-McClelland and depicts a sign which reads: LOW CLEARANCE 2.7m and which, on the plan, is shown as having the following prescribed location and dimension requirements: LOW CLEARANCE SIGN R 6-11 INSTALLED AT TOP OF WALL FACING NORTHBOUND TRAFFIC SIGN 1950 X 600MM TO AS 1742,2
This plan also depicts the location of a hanging warning bar, also to be required by the first condition in Exhibit M, which would hang in the entrance to the driveway, some 3.2 m behind the property boundary and some 1.2 m in advance of the point on the driveway where the structure of the proposed development would be impacted by any over-height vehicle seeking to enter the site. The bar would also be some 6.7 m to the west of the edge of the westernmost traffic lane in Leicester Avenue.
Before turning to consider the adequacy and potential effectiveness of the warning sign, it is appropriate to observe that the proposed bar has dimensions of approximately 1.95 m long by 600 mm high. The bar is to be hung parallel to Leicester Avenue. I am satisfied, because of its dimensions, orientation and location, it would not be able to be observed in any relevant and functional fashion by the driver of an approaching service vehicle until after the driver's vehicle had turned into the mouth of the driveway. Whilst such a warning bar would, I am satisfied, prevent such a service vehicle from advancing to collide with the lower edge of the building aperture, I am not prepared to conclude that it would have any utility in preventing such a vehicle from seeking to enter the driveway in the first instance.
During the course of the oral town planning/urban design evidence on 5 March 2019, I was concerned that the landscaping plans showed, on the southern boundary of the site to the property boundary along Leicester Avenue, planting of vegetation which would have the potential of obstructing the view of the sign for a driver approaching from the south toward the site in a servicing vehicle where the driver was contemplating turning into the site in a vehicle which would have too high a clearance to be able to access the site. I also questioned as to what was the height of the proposed blade wall along the southern side of the access driveway as there was no section depicting the height to which that wall would extend immediately adjacent to the Leicester Avenue property boundary. My concern, with respect to this wall, was that it, too, had significant potential to obstruct the view of a service vehicle driver seeking to access the site.
As a consequence, Mr Tomasetti asked Mr Johansson several questions concerning potential obstruction of part of the sightline of the south-facing sign proposed for the northern wall of the electricity substation forecourt. Mr Johansson's response was that I could impose a condition that would limit the maximum height to which the landscape plantings could grow, to a distance to the west of the Leicester Avenue property boundary, so that that vegetation would not be able to act to obstruct any view of the sign.
He also suggested that, although the blade wall was presently proposed on his understanding, to be to full height, I could also address this concern by imposing a condition that would limit the height of this wall, in a fashion similar to how I might limit the height of the vegetation to its south, so as to ensure that visibility of the sign would not be obstructed. He suggested such a design change could be achieved by condition of consent (Transcript, 5 March 2019, page 50, line 24 to 40), saying: TOMASETTI: Mr Johannsen, I just want to take you back to drawing 2.01, the ground floor plan. You can see the wall bounding the southern side of the entry driveway where it meets the property boundary? WITNESS JOHANSSEN: Yes. TOMASETTI: Is there any architecturally why that wall could not be brought back in a WITNESS JOHANSSEN: None that I could see, that there would be a possibility a setback or to make it perhaps more permeable. TOMASETTI: Would it be appropriate, in your view, if one wanted to set that wall back to simply achieve that by way of a condition of development consent? WITNESS JOHANSSEN: Absolutely.
First, I observe that these matters arise in the context of a proposed development on this site where the present design, although it has evolved in a number of aspects, has been the development proposed by the Applicant since at least 26 October 2016. The necessity to modify the design, with respect to access to it, means it has undergone a number of changes indicative of those advising the Applicant about such matters responding on-the-fly rather than having considered all of the potential issues from the beginning. Mr Johansson's response concerning the blade wall and the proposed landscaping is merely the most recent instance of this approach.
It is to be observed that the plans as presently before me appear to incorporate this blade wall as a structural element supporting the apartments above.
In this context, I accept that Mr Johansson is an architect and therefore qualified to express the opinion that the design of the blade wall could be modified to increase the visibility of the proposed sign. Whether addressing this matter by condition of consent would leave this important matter in a state of uncertainty, contrary to the decision of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, is moot.
Should this have been the only potential barrier to moving to undertake a merit assessment of the proposed development and that merit assessment had been positive, it would have been appropriate to permit the Applicant the opportunity to address this defect. However, as the proposed development fails to satisfy other jurisdictional tests and also lacks merit for approval on unrelated grounds, it is unnecessary to consider doing so.

[39]

The extent of the height exceedence

The height exceedence for which dispensation with compliance has been sought is across a substantial area of the uppermost portion of the uppermost level of the proposed development.
The maximum exceedence is 1.45 metres. The extent of the exceedence of the 25-metre standard was depicted on a plan prepared by the Applicant (Exhibit B, Tab 2). This plan shows the 25-metre height limit as a green plane, with the area of the proposed development where that plane is proposed to be breached shown in white. A copy of that plan is reproduced below:
As the proposed development seeks consent to exceed the maximum development height for portion of its proposed uppermost level, a request has been made to permit this exceedence, in reliance on the facultative and beneficial provisions of cl 4.6 of the LEP (this being the way the provision is to be regarded - adopting, by analogy, the relevant language ascribed to the previously applicable process which would have arisen under State Environmental Planning Policy 1 (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 (at 480)).
The relevant elements of cl 4.6 of the LEP are: 4.6 Exceptions to development standards (1) … (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
As the Chief Judge made clear in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) at [24], that which is to be tested against the requirements in cl 4.6(4)(a) and (b) is solely that element of the Applicant's proposed development which exceeds the development standard derived from cl 4.3 of the LEP.
Other matters, not concerning the height exceedence, which might relate to the desired future character of the Triangle, arising from the Triangle DCP, are to be taken into account as part of a general merit assessment, undertaken pursuant to s 4.15 of the EP&A Act, of the proposed development, but matters such as setbacks, amenity and the like play no part in my consideration of the cl 4.6 request for the development to be permitted to exceed the height limit for the site.

[41]

The approach to cl 4.6 of the LEP

I have earlier noted that cl 4.6 of the LEP is the provision that permits a request to be made to dispense with compliance with a development standard contained in the LEP. As earlier noted, the relevant development standard is that the maximum height permitted for the site is 25 metres.
The process for consideration of a request made pursuant to cl 4.6 of a Modern Local Environmental Plan based on the Standard Instrument Template (as is the case with the LEP) was discussed by Preston CJ in Initial Action between [13] to [15] and [23] to [27] where his Honour said: 13 The permissive power in cl 4.6(2) to grant development consent for a development that contravenes the development standard is, however, subject to conditions. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard. 14 The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii). Each opinion of satisfaction of the consent authority, or the Court on appeal, as to the matters in cl 4.6(4)(a) is a jurisdictional fact of a special kind: see Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 442 at [25]. The formation of the opinions of satisfaction as to the matters in cl 4.6(4)(a) enlivens the power of the consent authority to grant development consent for development that contravenes the development standard: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28]; Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79; [2001] NSWLEC 46 at [19], [29], [44]-[45]; and Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [36]. 15 The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters. … 23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. 24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]. 25 The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]. 26 The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). 27 The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).
His Honour's analysis has been followed in subsequent Class 1 merit appeals where the question of whether or not a cl 4.6 request should be granted has needed to be determined. It has been endorsed by the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130.

[45]

The tests set by cl 4.6 of the LEP.

I have earlier set out the terms of cl 4.6 of the LEP. This provision, relevantly for these purposes, requires that I must be satisfied that four tests are all satisfied prior to the path to a merit assessment of the proposal being available because compliance with the development standard set by cl 4.3 of the LEP should be dispensed with. Each of those tests effectively constitutes a gateway where, if any one of the gates is shut, further progression of the proposed development cannot occur.
Those four gateways arise as a consequence of cl 4.6(4)(a). Those gateway tests for my consideration of the adequacy of Exhibit C in requesting the necessary dispensation are: 1. whether Exhibit C has adequately demonstrated the two matters required by cl 4.6(3)(a) and (b)? 2. whether the proposed development is consistent with the objectives for the development standard set by cl 4.3 of the LEP? and 3. whether the proposed development is consistent with the objectives for development within the R4 zone as set out in the land use table of the LEP?
As earlier set out (but now with relevant emphasis added), Preston CJ observed in Initial Action at [27]: The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).
As I am satisfied that the third of these tests (consistency with the objectives contained in cl 4.3 - Height of Buildings of the LEP) is not demonstrated by that which is set out in Exhibit C on this point, it is unnecessary for me to assess whether or not Exhibit C provides any basis for my satisfaction that the other tests are satisfied (as the failure of a single one of them acts as a barrier to further consideration of the Applicant's proposed development).

[47]

Exhibit C and cl 4.3(1)(a) of the LEP

The cl 4.6 request then addresses the first of the objectives of cl 4.3(1), being cl 4.3(1)(a), in the following terms: The Standard Clause 4.3 - Height of Buildings: Subclause 4.3(1)(a) - to ensure that buildings are compatible with the desired future character in terms of building height and roof forms In our opinion, the proposed development satisfies Objective (a) for the following reasons: • The Strathfield Triangle precinct is in a state of transition and it is likely that a significant portion of the existing dwelling houses will be redeveloped in the coming years, particularly on the western side of Leicester Avenue. The planning controls for the site anticipate and encourage increased heights and FSRs. The proposal will be consistent with those proposed new heights. • The existing dwellings on the site are of little architectural merit in their low scale form is inconsistent when compared to the surrounding cluster of existing and recently constructed residential flat buildings. The proposed residential flat building will provide a more suitable contextual fit in the area, complementary to the adjoining built form. • The exceedence in height is acceptable, as it responds to the emerging character of the locality. The design of the proposal has taken into consideration of the scale of the site and the adjoining developments. The proposal will present a predominantly compliant height when viewed from Leicester Avenue with the minor non-compliant portion at the south-eastern corner not readily discernible. • The proposal will be of a similar bulk and scale to the adjoining part six and part ten storey development at No. 10 Parramatta Road. The top floor will also be a recessive element, which complements the streetscape (see Figure 6 on the following page). When viewed from the side boundaries, the proposal will have a stepped appearance, providing appropriate transition to the four storey development at Nos. 1‑5 Hilts Road. • The proposal is of contemporary design and detailing with articulated façades, which will make a positive contribution to the streetscape (see Figure 7 on the following page). The generous setback to the rear boundary provides opportunity for landscaping, which includes embellished perimeter planting that will soften the appearance of the building, assist in reinforcing the landscape setting and reduce perceived bulk. Furthermore, the building design incorporates a flat roof, which is consistent with recently constructed developments in the locality. The lift shaft is also incorporated into the design of the building in order to minimise visual impacts. Accordingly, in our opinion, the proposal will assist in advancing the revitalisation of this section of Leicester Avenue, in accordance with the desired future character objectives established by Council and satisfies Objective (a).

[50]

The Applicant's closing submissions

Set out below is the relevant portion of the closing submissions made by Mr Tomasetti concerning the objective contained in cl 4.3(a) of the LEP (Transcript, 6 March 2019, page 32 line 28 to page 38 line 7): The LEP, your Honour, contains the control as to height. As your Honour knows, it's on the building map, 25 metres. It's cl 4.3, and the height control, which is again found in behind tab 4, has express objectives, and those objectives are to ensure that buildings are compatible with the desired future character in terms of building height and roof forms, to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, and the height is not to exceed that which is shown on the height of buildings map. The development, your Honour, undoubtedly seeks to achieve the objectives in the zone, that is, of high density residential development. In our respectful submission, a 25 metre height limit would suggest to the designer coming to the blank sheet a building which could have up to eight storeys in height. Having regard to a 3.1 metre floor to floor height guideline, that translates, where you have a 24 metre building height above natural ground, into sufficient space to accommodate an eight storey building. In these circumstances, the subject building is slightly higher than the 24, 25 metre height limit, and that necessarily intersects then with cl 4.6 of the LEP, which requires as a jurisdictional matter the provision of a written statement, giving adequate written, adequate justification for noncompliance with this particular development standard, and I will go to Mr Shiels' cl 4.6 submission directly. But whilst we have the objectives open in the LEP, acknowledging that cl 4.6 requires those objectives inter alia to be addressed, your Honour, we have here a building design which takes its lead from the development which has already taken place to the northern end of the Strathfield Triangle precinct. That's been clearly of a high density residential development character with some mixed use. Along Parramatta Road, we have development between eight and ten storeys. On the corner of Parramatta Road, on land, which I don't think it's in dispute, is land which was developed by Mr Robertson's client, a ten storey building, and then as one will travel down Leicester Avenue, the 25 metre height constraint cuts in. One would expect to see ultimately along the streetscape on the western side of Leicester Avenue a residential apartments development character replacing that which is there now, low density. It will be seeking to achieve the maximum height permitted by the height of buildings map. To the extent that the DCP in the Strathfield Triangle suggests a number of storeys which would mean that buildings can't reach that maximum height, we would submit your Honour would ignore those requirements of the DCP, and then one would see generally speaking, where the 25 metre height limit exists, buildings with eight storeys with a setback from the street probably at between 3 and 4 metres, the precedent having been set on the corner of Parramatta Road and Leicester Avenue, which is necessary to follow not because it's a precedent, but because the physical form of that building creates a streetscape cue, and where solar access is concerned, the need for buildings as they progress in the future development of Leicester Avenue to have as much solar access as possible for interfacing units, necessitating the buildings to match each other as they progress down Leicester Avenue in the future. Building height will be predicated by that building height map, and the roof form will generally be a roof form which is, one would expect to see as relatively flat, if not invisible, when viewed from street level, and from levels of adjacent apartment buildings higher than street level even, but roof forms that are generally flat, and in modern day, hopefully not seeing the expression of lift overruns and the like at roof level, and that can be achieved through careful design, and particularly split level apartments at levels 7 and 8, and this development does. You have to take into account that the objective of the height limit is to minimise the amenity impacts identified in cl 1B, and the expert evidence in this case is that there are no such amenity impacts caused by reason of the height of this development, and that's a universal position, and it's highly persuasive, in our respectful submission, of the ultimate determination to be made under cl 4.6. Indeed, we would submit that the exceedence above the height plan, which I will go to now, is such that it will be virtually impossible to discern it by any person, other than the most well informed member of the public about planning levels at a height limits survey detail, and the like. Mr Shiels' cl 4.6 submission is in exhibit XC, and he gives an explanation of context, both in words, and by photography and bird's eye images, at p 3, and one can see, your Honour, immediately, the emerging character of Leicester Avenue as informed by the development which is taking place at 10 Parramatta Road in photograph number 1. One can see the precinct as it's being redeveloped in the aerial photograph which bears the figure 1 description, high density developments in the locality, and how this site is essentially the next step in the southward march of redevelopment in the Strathfield Triangle. He also useful puts in photographs of development in Cooper Street and Hilts Road, just to say there's high density context in which the pedestrian or person otherwise moving will find himself in future years. He addresses the relevant plans in s 3. He identifies the exceedence of the height plane at pp 6 and 7 in words and graphically, and you can see by reference to the figure 5 on p 7, which is like the other exhibit that I tendered which shows the building from two different elevations was exhibit B at tab 2, the exceedence of the height plane in a pictorial sense making it easy to understand. The first point is that the exceedence does not cover the whole of the site. The building complies at its northern end, along the northern elevation, and it complies for at least half of the eastern elevation. It is only at that point that the roof starts to penetrate the height plane, and you can see that coloured white, and you can see the parapet at the southwest corner, where the exceedence is the greatest. Now, Mr Shiels describes that exceedence at p 6. He describes it as, "a modest noncompliance of 1.252 metres or 5%, unlikely to be readily noticeable from the public domain". He sets out cl 4.6(4). He set out cl 4.6(3), which cl 4.6(4) expressly references, and he then seeks to make written justification in the request for the contravention by demonstrating compliance is unreasonable or unnecessary in the circumstances of the case, and there are sufficient environmental planning grounds to justify contravening the development standard. We understand when informed by the decision of the Chief Judge in initial, of course, that we are really concentrating on the offending part of the building. Your Honour, the starting point of course is that the site has a slight fall, so the building height plane generally has its work to do in the most simplistic of circumstances on a perfectly level site. Where a site has a fall, a steep fall at the other end of the spectra, one might expect to see a building that then steps down with the fall of the land, and therefore meeting compliance, one would hope. Where there is more or less a slight fall, which this site has, the ability to accommodate the building height plane becomes a little more difficult, because you end up having to break the floor plates, you end up having to stagger the building in a way which is imperceptible in terms of it being a response to the building height plane, but in a way which adds to expense for the building program. HIS HONOUR: Or you knock a floor off. TOMASETTI: Yes, exactly, or you knock a floor off, or you lower the building into the ground. Your Honour, at the northern end of the building, we comply. If you look at the survey information, and you look at the floor plate for the building at that northern end, you will see that the building has already been designed by the designer with the floor plate below the level of the adjacent street. So if we push the building further down into the ground, the consequence is that at ground level, you get amenity impacts of an adverse kind for those units at the northern end of the building. If you take an entire floor off the building, then you lose, I think the Court calculated yesterday, and we don't dispute it, six two bedroom units out of a high density zone. HIS HONOUR: No, there were not two. The uppermost level has a mix of one, two and three bedroom units. TOMASETTI: Thank you, your Honour, or six dwellings. HIS HONOUR: It is not automatic that if a floor was to be removed from the development that the appropriate floor would be the uppermost level. TOMASETTI: That's true, too. I accept that, your Honour. One can take up any of the floors, I suppose. But essentially, we would be, if we are concentrating on the offending part. HIS HONOUR: No, I understand that. But let me put this proposition to you now, you may want to deal with it in reply, is that if I was otherwise satisfied that the only barrier to your client getting an approval was the height exceedence, and I was to conclude, consistent with the recent decision of the Court of Appeal about the scope of varying matters, as it were. TOMASETTI: In the Bunning case. HIS HONOUR: In Bunnings, in which I am implicitly criticised for being too conservative in the past, it would seem to me that if I was going to say to your client, well, I will give you a consent with one floor knocked off, and I am not suggesting that I am, it would seem to me that one of the intermediate floors, where there are multiple floors of generally the same configuration, and lacking the nature of the articulation and the like of the uppermost level would be more appropriate to be removed than the uppermost level. TOMASETTI: Your Honour, let's stick with the objection. I hear what your Honour says, and I accept that your Honour has jurisdiction to do that, of course. ROBERTSON: We don't, just to make it clear. We don't accept that. HIS HONOUR: I'm not putting the proposition that I do, or I don't, at this stage. ROBERTSON: No, I appreciate that. HIS HONOUR: All I'm saying to you, if, contrary to what Mr Robertson's going to say I was proposing to be seduced by the siren song of exercising a power, then it would seem to me that the appropriate way to exercise it would not be with respect to the uppermost level, that's all. TOMASETTI: But, your Honour, I would urge your Honour not to focus. ROBERTSON: If your Honour had the power, we wouldn't disagree with that proposition. TOMASETTI: Your Honour, let's return back to the adequacy of the written objection. At pp 14 and 15, Mr Shiels puts the argument basically on two, not necessarily alternative, considerations. The first is the underlying object or purpose of the zone and the height standard would be defeated or thwarted, if compliance was required, and therefore compliance is unreasonable. Your Honour, I took your Honour to the objectives of the R4 zone, and we ask your Honour to view these objectives as being interpreted such that high density is the goal, is encouraged, and it doesn't, the higher the density, the better, provided other things are satisfied, and therefore the objective here should be not to cram as many units onto the site as possible, far be it from that, but to develop within reason, in accordance with accepted development and design standards, as many units as is reasonably able to be developed in the zone, having regard to the envelope controls, and in order to comply, Mr Shiels argues that you would have to either delete a floor, or increase excavation on the site to lower the building. HIS HONOUR: He gave some oral evidence that was slightly equivocal on that point, did he not? TOMASETTI: I'm looking at the adequacy of the written objection, your Honour. Some of the cases that I have been in, unfortunately, have descended into almost like a high school checklist, or test of a thesis that's written, to see if the document itself is an adequately self-speaking document, and that's what I'm addressing at the present time. It's the second paragraph on p 14, he's making two proposition. He's got the objective of high density, he's got the zone which is in response to public in transport and the like, and he's saying the height is dictated here by, or compliance would be dictated by reducing the density of development by a floor or increasing excavation. I have referenced your Honour as quickly as I can the survey information, which my learned junior will give me the actual detail of, outside the site in the northeast corner, what the height of the street is, and what the floor level is of the development, and he's saying because there is no adverse amenity impact on adjoining property as a result of a noncompliance, and because the proposal is achieving the high density objective which is mandated in those two bullet points, strict compliance indeed would be unreasonable and unnecessary, and hindering the orderly and economic use of the land. The noncompliance he describes at the top of p 15, .452 metres, as a result of a 1.5 metre slope in topography along the street frontage, and where the underlying objective is to minimise visual impact is not to disrupt views, is not to cause loss of privacy, nor loss of solar access. In our respectful submission, where those adverse impacts do not arise, which is universally accepted, we are left with a control which is really numerical only, and a design which does not detract from those objectives whatsoever. To use the words of the clause, "it is not necessary to comply with the height standard in order to address those particular adverse impacts", because of the design which the architect has come up with. Your Honour, the floor level of the development, the ground floor of the development, is RL 20, as is shown in the elevation drawing DA 4, and the footpath adjacent to the northeast corner of the development is 20.6 or 20.7, or thereabouts. We already have a circumstance where the footpath, where the public are slightly higher than the courtyard and internal living area. If you were to make it any lower, you would have an amenity whereby the occupants would be feeling as though they were in fact subordinate, if you like, to the public domain in terms of relative heights. It's not appropriate therefore to further reduce the building into the ground, in terms of the additional height, it's appropriate to achieve the higher number of units where there is no adverse amenity. His Honour in the initial investment case, the Chief Judge, indicated that you do not have to demonstrate a neutral or beneficial effect, but of course if you can demonstrate a neutral effect, then that would be a relevant consideration. The second justification which Mr Shiels relies upon is on p 15, and that's where he says there has been some development taking place in the Triangle, to which I have already referred, which has led the way to setting standards in relation to height. The building on the corner is of course ten storeys high, higher than the 25 metres, and in the sense that a building from an urban design point of view might be justified having an expression of corner of an intersection, which we often hear in cases like this. This development steps down from that height and will meet in an appropriate and reasonable way the character, emerging character, of this location. Mr Shiels is saying the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consent, I think. Perhaps that's putting it a little bit high, but what I think he is intending to say, as he does in the written text under the italics, which were taken from I think the Webe case, for example, he then argues that the developments, whilst approved prior to the introduction of the Strathfield Triangle DCP, Council's approval of the development proposal has exceeded relevant height planning controls and sets a precedent for development in the area. When exceeding building height controls, it can be reasonably stated that Council has abandoned the development standard for the locality, and compliance with the standard is unreasonable, for the reasons that the Council's DCP sets storeys controls, and you don't see compliance in many, many instances in the Triangle in respect to those storey controls, although I hasten to add that the issue is not really the DCP, it's the LEP with which we have to remain firmly focussed. … TOMASETTI: In summary what we submit that the circumstances before the Court demonstrate a classic case where it's appropriate to relax the development standard, to a minor extent, to accommodate the site's physicality, the desired future character in the area, and the in the absence of environmental adverse impacts by reason of the accidence, the objection or written request should be found to be adequate. It doesn't have to be perfect, adequate, and the written request should be supported.

[51]

The Neighbouring Owner's closing submissions

Mr Robertson's submissions on this topic were in the following terms (Transcript, 6 March 2019, page 49 line 33 to page 53 line 7): HIS HONOUR: No, I understand that. We have what are set out in 4.3, and we have what are set out in the land use table as the relevant sets of objectives called into play by 4.6(4)(a)(ii), is that not the case? ROBERTSON: Yes. The question whether compliance with the standard is unreasonable or unnecessary may be answered by reference to the objectives of the standard to ascertain whether compliance with the standard carries out the objectives, or if it doesn't fulfil the objectives, whether the noncompliance proposed does. But the correct question is to ask whether the objectives are satisfied by a complying development, because if they are satisfied by a complying development as well as non-complying development, then it cannot be unreasonable or unnecessary to apply the objectives in this case. The test is in the first instance always to look at what a complying development would involve, and to ask the question whether that development undermines the objectives, or doesn't fulfil the objectives, and whether your proposed development does, and that of course is in relation to only, in this case, to height, because we're not dealing with FSR or any of the other standards, having been removed from the instrument, as Ms Francis told us, and the instrument relying solely on height and the DCP to control development in the area. In this case, there is no comparison ever assayed between those two propositions. We are never told in this justification document why it would be unnecessary or unreasonable for the development to comply with the standard, and whether it can comply with the standard. I mean, in other words, no one looked at the proposition of a development on the site with seven storeys or redesigned the roof with eight storeys but limiting the amount of building mass in the roof to avoid breaching the height standard. Those alternatives were never examined, and that's a fundamental problem with the way in which the justification proceeds. The question is whether a complying building would defeat the objectives, and plainly that's not the case here, because if you are examining the objectives of the standard, which we say at this point is really the only objective that needs to be considered, one has to consider the objectives of the zone later for a different reason, but when examining the objectives of the standard, one relates to amenity impacts of the building, and that's objective (b), and the other one relates to whether building is compatible with desired future character in terms of building height, in terms of building height, not in terms of anything else, but just building height. The way in which the author of the document examines it or argues it is to say that the strict numerical compliance, this is the bottom of p 14, would hinder the orderly and economic use of the land. If the standard is set aside, it would enable the construction of a new residential flat building to be facilitated. Your Honour, that's simply a non sequitur. If the standard is complied with, it would also enable the construction of a new RFB to be facilitated, and the second proposition that one gains from this paragraph is that by decreasing or reducing the number of units within the development, and that would, or strict compliance would reduce the number of units, and that would hinder the orderly and economic use of the land, but that's an entitlement type of argument, that there is some entitlement to fill every cubic metre of airspace that a height limit produces plus more, and that cannot be discerned from any of the objectives. The earlier paragraph here is simply a merit argument. There's a reference to the case of Fa$tbucks. I'm not sure how that's relevant. Your Honour, at p 15, it looks then at the slope of the site, and says that the noncompliance is a result of the slope of the site, and therefore the underlying objecting purpose of the desired future character, in terms of building height, is preserved despite the minimal exceedence in the height limit. But the problem with that proposition is that it doesn't describe what the desired future character is, and the evidence was, both in this document and in the evidence itself, that the desired future character can be gained from the DCP, Council's planning instrument, as well as of course, the objectives of the zone. But specifically because we are dealing with the circumstances of the case here, the desired future character will be best expressed in the site specific DCP, and the site specific DCP makes it clear that the desired future character and the application of the maximum building height controls produces what in map 2 of the DCP on p 10 of the instrument is a height of seven storeys in this location. So insofar as that represents the desired future character in relation to building heights, which is all that we're concerned with, then that character is expressed by the map showing a height at Parramatta Road which then drops down to five storeys in the centre of the triangle and then proceeds to a greater height up to 18 storeys at the southern tip closest to the Railway Station, and with tall buildings along Parramatta Road, the effect of which has been produced by earlier approvals. Your Honour, the compliance with the standard will be facilitated, or rather compliance with the objective of the standard will be facilitated by limiting development to seven storeys. The next test adopted was that the standard has been abandoned. Really, this is a proposition that we do need to address. Page 15 refers to a 2010 DA for a building at number 18 Parramatta Road, which is the northwest of the site, and it said it was approved 2.6 metres above the 24 metre height limit. Your Honour, that is a height limit that was imposed by an earlier planning instrument not the current instrument. The current instrument shows that building at heights between 32 and 35 metres, if you look at the building height map. Then there's a reference to a 2007 DA, for 39 Cooper Street, that's on the corner of Cooper and Parramatta Road your Honour, where it says there's a nine storey building; where the height was limited to seven and four storeys. That means, where the height was limited to seven and four storeys in a previous instrument that has been repealed and doesn't apply. If you look at the current instrument you'll see that the height is 32 metres on that corner, which would plainly accommodate a nine storey building. There is a small area within the buildings along Parramatta Road where it drops down to 26 metres, but that's the lowest height in that location. Otherwise, the heights have been increased, and in fact my friend keeps saying these are buildings or a building owned by my client, my client would be no doubt happy that he can put a few more storeys on those buildings now and comply with the height standard. Really, this is an argument that goes nowhere. It is not evidence of the abandonment of the current controls. It might be evidence that the older controls Council fought were out of date and were prepared to grant set 1 variations to meet what they thought the new controls should be; if that was the case they did so and the buildings they approved are below the height limits in the new controls. Not in breach of them. There is not a single shred of evidence to demonstrate that this standard in the 2013 instrument which communicated at the same time I think, or about the same time as the triangle DCP was made. One shook hands with the other that when those two instruments were made instruments were made they set the current planning controls, and this is the first application you have been told, under the triangle DCP in the new planning controls in this area. There is no evidence at all to support that test. There are two tests that are advanced; one test asked the wrong question and addresses the wrong subject matter; the second test has a factual underlay that is simply wrong. There is no basis at all in which that second test could succeed. Your Honour, there is a reference here to, lest it be said against me, that at p 13 under 4.2 it said, "In our opinion...the development standard", that's a second error which is a different matter. But lest it be put against me that you can then go back to everything that precedes this and seek to extract at some point or other a justification demonstrating unreasonableness or that the application of the standard is unnecessary, I need just to take your Honour briefly to p 8. This is where they look at the second question, and that is compliance or rather consistency with the objectives of the standards and the zone, that's the third question that has to be considered. If your Honour turns to p 9, the first question is the matter is put, to ensure that buildings, this is cl 4.3, to ensure that buildings are compatible with the desired future character in terms of building height and roof forms, and it notes that the Strathfield precinct is in transition, planning controls anticipate and encourage increased heights, not sure about FSRs but heights. Proposal will be consistent with those proposed new heights, but the problem is, it won't be. It's not consistent with those proposed new heights, the argument put forward by Mr Tomasetti's witness, the author of this document, is that it was consistent with approvals granted prior to the Strathfield triangle DCP, which showed breaches of a previous standard to significant heights and therefore that justifies this breach. I've already addressed that process of reasoning which we say is flawed. The fact is by reference to the DCP it is inconsistent with the proposed new heights, because it's an eight storey not a seven storey building. The second dot point notes the existing dwellings are of low architectural merit, and this will provide a more suitable contextual fit. I mean, that's irrelevant. That doesn't address building height or roof. The third dot point says, "Exceedence in height is acceptable as it responds to the emerging character of the locality". Your Honour, the emerging character of the locality is not necessarily the same as the desired future character. That was a test that had to be addressed. That can only be ascertained from the LEP and the DCP. It has to be desired, and the person who desires it is Council, and it has to relate to building height. This commentary is irrelevant, and it simply says, look at the adjourning developments and it's predominantly compliant, when viewed from Leicester Avenue. But that's not consistent with the DCP. Next dot point, it will be a similar of bulk and scale. Again, we come back to the building on the corner which we've already said has height limit up to 36 metres which it is less than, and it is said that it's going to be similar to its bulk and scale. But the point of map 2 in the DCP is to demonstrate that the tallest buildings are in that location and the buildings on our site are significantly less than they are, at least by three storeys; which would mean a seven storey building on the site would be compatible and provide a stepped appearance. Then the next dot point, the proposals of contemporary design, so on and so forth, all that's irrelevant. Those are just merit issues and they don't address questions of compatibility, with desired future character in terms of building height, except for the commentary about the flat roof. Then there's the conclusion that the proposal will assist in advancing revitalisation, but so would a compliant proposal. What? The next one is visual impact; there's no issue about impacts. We'll turn on, we can assume it's compatible or consistent with that objective.

[52]

The Council's closing submissions

Further closing submissions were heard on 29 March 2019, this being after I had rejected (for the reasons earlier set out in this decision), the application to rely on a fresh request pursuant to cl 4.6 of the LEP in substitution for what had been contained in Exhibit C. Ms Irish's submissions on the objectives of cl 4.3 of the LEP were in the following terms (Transcript, 29 March 2019, page 28, line 43 to page 31, line 9): The next contention referred to by some of the experts, the planners, is contention 2 but numbered in exhibit 1 as contention B3, is the height of buildings development standard. That is to be found in cl 4.3 of the LEP which requires to be read together with the height of buildings map which is exhibit 11 and the maximum applicable height is 25 metres. A revised cl 4.6 request dated 1 March 2019 was ultimately provided specific to the exhibit D plans including the exhibit E amended plans to which leave was given on 15 February and became the replacement to previous exhibit C but in anticipation of even the first version of exhibit C, which was circulated on 25 January, is MFI A, it was squarely raised in the first respondent's opening on 24 January, that it was now a matter whether the Court would be satisfied with that 4.6 request it being a jurisdictional question and particular A to contention B3 was superseded by the one-page addendum handed up which provided the correct numerics but we refer to the transcript reference on 24 January at p 31 lines 30 to 34 where I advised the Court that what remains of contention 2 is this. There has now been the provision of the necessary 4.6 request but it's a matter for the Court whether it's satisfied having regard to the relevant jurisprudence. On the topic of the relevant jurisprudence the first opinion of satisfaction in cl 4.640(i) is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by 4.63 and those matters are twofold. First that the compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, 3A and secondly, that there is sufficient environmental planning grounds to justify contravening the standard, 4.63(b) and the written request needs to demonstrate both of those matters according to Preston CJ in Initial Action v Woollahra [2018] NSWLEC 118 at 15. Does your Honour have a copy of the Initial Action decision? HIS HONOUR: The answer is I can't remember. I have had to consult it in so many matters recently. IRISH: I'm happy to provide a copy if it's of assistance to the Court. It might have been handed up by Mr Robertson on Tuesday. HIS HONOUR: If you've got one-- IRISH: I do. HIS HONOUR: --I'll have it. IRISH: That reference was to para 15. "The applicant bears the onus to demonstrate those matters." It's repeated in the decision I've just handed to your Honour. It's required to demonstrate both of those matters so that the Court, as the consent authority on appeal, can from the requisite positive opinion of satisfaction and that's at para 25. The second distinct opinion of satisfaction in cl 4.640(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for the development for the zone in which the proposed development is to be carried out. The second opinion of satisfaction differs from the first opinion of satisfaction in that the consent authority or the Court on appeal must be directly satisfied about the matter in 4.640(ii). Not indirectly satisfied that the applicant's written request has adequately addressed that matter and that's to be found in Initial Action at 26 and further at 27 and finally, the Court should still, according to Initial Action at 29, should still consider the matters in 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard by citing at 29, Fast Buck$ v Byron Shire Council [1999] 103 LGERA 94 at 100 and Wehbe at 41. Turning to the facts of this case. The 4.6 request in exhibit C involves a quantum of breach of up to 1.252 metres. It's common ground that the applicant seeks additional residential floor space above the maximum building height. That's evident from figures 4 and 5 in exhibit C and each of the building components above the maximum building height is capable of being contained within the development standard subject to the design of the residential flat building. I can hear my friend complaining that it's not right to have made a submission that the applicant seeks additional residential floor space above the maximum building height but the figures, if I invite your Honour to look at exhibit C. HIS HONOUR: I'm there. IRISH: Figures 4 and 5. HIS HONOUR: I'm there. IRISH: On p 7 it shows that the 25 height limit line drawn on figure 4 and the green three-dimensional diagram comprising figure 5, both show that components that are intersected are components of additional residential floor space. This is additional residential floor space and it is above. I'm not sure that my friend can get home by suggesting that you'd need to have a whole floor of additional residential floor space in order for that submission to be made good. Each of the components above the maximum building height we submit is capable of being contained within the development standard. The joint report in relation to this matter, the first respondent observed that no typed data is given in the joint report for the Parramatta Road building shown in the photographs in annexure E that Dr Shiels relies upon, annexure E to exhibit 7 and they are in any event, irrelevant to the different controls in the Strathfield Triangle and secondly, Dr Shiels at p 11 at para 4 of exhibit 7, says that rate payers expenditure of costs on this matter is a matter for consideration in the determination of 4.6 request. That cannot possibly be a problematic consideration in the determination of a well-timed, well-founded 4.6 request. Then your Honour had the oral evidence that a compliant development would be no less high density residential accommodation in the proposed non-compliant developments so your Honour would reject the submission that this development needs to have access to the breach in order to achieve high density residential accommodation in accordance with the objectives. Secondly, a development which complied with the Strathfield Triangle DCP would be seven storeys, not eight as proposed and more likely to be compliant with the development standard if it complied with the Strathfield Triangle DCP standard of - control of seven storeys. Thirdly, it's not determinative whether there are no or even negligible amenity impacts arising from a height breach. It's not the quantum of variation but whether it's adequately justified in the circumstances that is relevant and if I could hand up to your Honour a copy of the decision in SH7 Best Pty Ltd v Blacktown. I think that's a decision with which my learned friend is familiar. At 55 of that decision you'll see that Commissioner Smithson said what I've just put to the Court and similarly, "It's not a matter of comparing any impact from the proposed development with a complying development," and that can be found at para 64 of SH7 Best citing Initial Action at 87, "Clause 4.6 does…a compliant development." The Court would also not be satisfied that the development standard has abandoned or destroyed and the opinion of experts such as Mr Giaprakas about the cl 4.6 request is not determinative of the Court's state of satisfaction. See for example, Mr Giaprakas in the transcript of 5 March at p 76 line 40 to p 77 line 15 and p 84 line 50 to p 85 line 3. The applicant cannot succeed in relation to this 4.6 matter by praying in aid that there was previous accommodation of a 4.6 request in relation to the matter described to Commissioner Smithson in the s 34 version of these proceedings. That has been set aside and it is a different version of the proposed development with different access and there can be no comfort obtained from any position that the council had in relation to a 4.6 in that matter that can be carried to this matter. The Court would, we say, be unable to from the requisite opinion of satisfaction. That the written request adequately demonstrates the compliance with the height of buildings development standard is unreasonable or unnecessary and we draw a comparison with the SH7 Best matter at paras 4 and 94 and equally the Court would be satisfied, for the reasons put to the Court, by the second respondent in submissions, that the request fails to establish other grounds justifying that the height variation sought should be permitted. It follows as a consequence of that, that the Court would find that it is without power to grant consent to the development application and that legal jurisdictional question means the appeal must fail. On 6 march the applicant at p 61 line 33 said as follows. I have to concede that part of the objection could probably have missed the mark entirely by addressing earlier planning instruments and there were similar comments made in the matter on Monday and Tuesday of this week, 25 and 26 March. The notes taken by my instructing solicitor to the effect that the applicant conceded that it doesn't comply with the requirements for the adequacy of the so called piece of paper comprising the 4.6 request and notes taken by the second respondent are to similar effect, that the applicant submitted on 5 March words to the effect, "The cl 4.6 currently before the Court does not ask the right question. In fact it asks the wrong question", and to the effect that the current 4.6 will fail to meet the jurisdictional requirement. So your Honour, we haven't gone into the detail that the second respondent did for the economy of not repeating unnecessarily but we consider that even on the first of the matters of satisfaction in relation to where the compliance is unreasonable or unsatisfactory, that your Honour would find the 4.6 wanting and we rely in that first opinion of satisfaction and the second opinion of satisfaction on and adopt the second respondent's submissions in order to make the submission that the Court would find it is without power to grant consent to the development application.

[53]

The Applicant's closing submissions in reply

Also on 29 March 2019, Mr Tomasetti made extensive submissions in reply to the matters which had been raised by Mr Robertson and Ms Irish in their closing submissions. The relevant portion of Mr Tomasetti's reply submissions concerning whether or not Exhibit C should cause me to be satisfied that the proposed development was consistent with the objectives of the Height of Buildings development standard were in the following terms (Transcript, 29 March 2019, page 49, line 32 to page 52, line 36): The next problem identified by Mr Robertson on behalf of the intervener is at transcript p 50 line 41, namely, that the cl 4.6 request does not describe what the desired future character is of the area. This is factually wrong. You go to p 9 of exhibit C. At p 9 you will see as your Honour rereads the request, firstly, the precinct is in a state of transition. Existing dwelling houses will be redeveloped in the coming years and development replacing it under the planning controls anticipates and encourages increased heights. Reference is also made to FSRs although this site doesn't have an FSR control. The desired future character is said to be firstly informed by the precinct being in a state of transition; secondly, the planning controls anticipated an increased height; thirdly, existing dwellings - this is the second bullet point - on the subject site being inconsistent with recent residential flat development so therefore not in conformity with desired future character; fourthly, the building design incorporating a flat roof consistent with recently approved development, and your Honour will note that under subclause 4.3(1)(a) we're directed to ensure that buildings are compatible, in the way that that word is used, with the desired future character in terms of building height and roof forms. So it is not the desired future character generally but it's in terms of height of the building and roof form. The building as I say incorporates a flat roof consistent with recently approved development. According to the document the proposal is in accordance with the desired future character as pictorially displayed in figure 6 at the bottom of the page. HIS HONOUR: Let me take you to the paragraph immediately above that and contrast that with what the Chief Judge wrote in the second element of para 24 of Initial Action, namely, that the cl 4.6 request must focus not on the development as a whole but on that aspect of the development that contravenes the standard for which dispensation is being sought. That paragraph there as a summary of the matters put above does not in terms address the contravention element. It addresses the totality of the merits of the overall development. TOMASETTI: The contravention is there at p 10, your Honour. I haven't completed my references obviously but at p 10 in the first bullet point you will see that in the context of the development the modest non-compliance with a small area to a maximum of 0.452 metres or 1.8% at the street frontage is unlikely to be readily visible from Leicester Avenue. HIS HONOUR: That is put in the context of the second of the objectives of the height standard clause of the LEP. That which is put on p 9 is said to be with respect to the first of the objectives of the height standard and comprises the totality of what is said about compliance with the desired future character and it is summed up in the final paragraph on p 9 in the context of the totality of the development proposal, is it not? TOMASETTI: Your Honour, we ask your Honour to read the document as a whole, not to focus on a sentence or a word or a passage. When you go to p 6 you will see that in the descriptive part the nature of the development - it starts on p 4: specify the nature of the standard to be varied and the details of the variation. Reference is made to drawings. On p 6 in the first complete paragraph the height is carefully discussed. Reference is made to figure 3 but the words continue: in the context of the development and the surrounding built form the modest non-compliance of 0.452 metres or 1.8% is unlikely to be readily noticeable from the public domain along Leicester Avenue. There is the author specifically addressing the non-complying part when viewed from the public domain in Leicester Avenue. He goes on under figure 3 to discuss the southern side elevation. He identifies the non-compliance being restricted to the highest point of the building at the rear of the upper level at the south western corner. He measures it at 1.252 metres or 5.008% - takes it to the triple decimal point - addresses its visual impact from the public domain and those words have to be read in the context of the pictures, figure 3 and figure 4. Both of them show in elevational form the non-complying part. The minor non-compliance is actually identified with a red circle and a label: Minor non-compliance and in figure 4 the non-compliant area is coloured yellow and emphasised with a red line and the area of non-compliance is labelled. Then in figure 5 it is presented in the bird's-eye view pictorially. The request is showing the reader exactly what the non-compliance is, where it's found, colouring it for emphasis, presenting it in a bird's-eye view with a green plane showing the roof penetration. In that context you then read p 9 and the requirement is to ensure that buildings are compatible with the desired future character in terms of building height and roof form. Your Honour, in my respectful submission the author in that last bullet point is specifically addressing the requirement for consideration of roof form. It's incorporating a flat roof form which is then said to be consistent with recently constructed developments in the locality. The roof form is part of that which penetrates the height plane. It presents figure 6 to show how the building is altering in height as one goes down to the south and postulates the future development on the other side of number 36 drawing in number 36 contemplating that that will be out of character in the future but showing how the development will be compatible - the building has to be compatible with the desired future character. You can't in my respectful submission identify in figure 6 by a line, say, the non-compliant part and then say building by definition under the Environmental Planning and Assessment Act incorporating the definition in the Local Government Act is a building or part of a building. The only part of the building we are looking at is the non-compliant part and the non-compliant part will be compatible with the desired future character in terms of building height and roof form. That makes a nonsense of the objective. It reads it too literally and it's not read in the way that in our respectful submission the Chief Judge intended in Initial Action. It's not a document of course which is required to be prepared by a lawyer. What it does when you read it fairly is to say, well, here I've got - I now understand the locality. I understand exactly what the breach is. The question I'm now considering is whether the building with its non-compliant component will relevantly be compatible with the desired future character in terms of building height and roof form. The references that I wanted to give your Honour are not complete because the document goes on and you read it in our respectful submission as a whole. Again, you've got a return to visual and view impact, careful identification of the non-compliant part emphasising that not only is the building with the non-compliant part consistent with character but it also - the non-compliant part causes no visual impact, no disruption to views, no loss of privacy, no loss of solar access of an objectionable kind. The written request itself addresses visual and view impact, privacy and overshadowing and makes arguments on p 11 about setbacks from various boundaries and makes arguments about overshadowing being inevitable by way of the increase but that it's minor, it will not result - the non-compliance - see p 11, third last line of third bullet point - the height non-compliance will not result in additional overshadowing, a conclusion with which the experts all came to agree. That's my answer to your Honour's question of me and I'm indebted to it. In my submission when you read the document as a whole you see that there is very clear identification of the non-compliant part and as the consent authority now your Honour is well able from reading the document to understand the contravention, to understand its context in the locality and within the building itself that is proposed, and then to proceed with the further tests. The desired future character of the area is also referenced on p 11 of the exhibit where it is said that the locality is characterised by high density development. Sorry, it's page-- HIS HONOUR: It's not 11. TOMASETTI: No, it's not 11, I got my reference there wrong. At p 13 I think the reference is where under objective 1 and objective 2 of the high density zone the author discusses the high density residential context in which this development is taking place. It says in the second bullet point the site is in a high density zone. The proposed residential flat building is appropriate for the site. It is compatible with the zone. Objective 3 of course is irrelevant so the reference to the bakehouse quarter can come out. HIS HONOUR: I understand that Dr Shiels himself withdrew that. TOMASETTI: In the same way as I abandoned the argument about abandonment of controls I can ask your Honour just to ignore that without necessarily affecting the legal efficacy of the submission. At p 15 in the first paragraph again the author returns to the discussion of the locality, desired future character. He says the proposed development transitions in height towards Hilts Road in accordance with the Strathfield DCP. The underlying object and purpose of the desired future character - it's wrong to describe it as an underlying objective; Mr Robertson was right. In the old days the objectives weren't expressly stated but that doesn't affect the legal efficacy of the document either. We can say the object and purpose of the desired future character in terms of building height and roof forms is preserved despite the minimal exceedence in height limit focusing again on the non-compliance, the matter which was concerning your Honour a moment ago.

[54]

Consideration of the cl 4.6 request

As Mr Tomasetti drew me back, in the extract from his closing submissions reproduced above at pages (73) and (74) above, what I am required to address is the adequacy of the written request for dispensation from compliance with the height of buildings development standard. The relevant element here requiring consideration has been set out, in its entirety, at [173]. Despite Mr Tomasetti's submission to me that I should have regard to the totality of the document in my consideration as to whether the first of the tests in cl 4.6(4)(a)(ii) are satisfied, the structure of Exhibit C clearly breaks up the analysis advanced on behalf of the Applicant into discrete sections dealing with each of the four tests (gateways) with respect to which I am required to reach a necessary position of satisfaction prior to proceeding to a more general merit assessment against matters arising under s 4.15 of the EP&A Act.
Although, as elsewhere noted, it is my understanding that this is the first proposed development in the Strathfield Triangle to be dealt with under the provisions of the 2013 LEP and the Triangle DCP, I expressly note that, in the context of my assessment of this cl 4.6 request, I have not considered questions of precedent (in the sense dealt with by Lloyd J in Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75) in this analysis. Such consideration, to the extent that it might have been appropriate to address it, is classically a matter for merit assessment. It is one not necessary to consider here given my conclusion that the cl 4.6 request for dispensation from compliance with the height of buildings development standard is inadequate and to be refused.
The dissection by Mr Robertson, in his closing submissions, of the elements in Exhibit C addressing the first of the objectives in cl 4.3(1) of the LEP are to be preferred despite the valiant attempt by Mr Tomasetti on 29 March 2019 to persuade me to set aside Mr Robertson's criticisms in this regard.
In this context, it is appropriate to observe that, as Preston CJ noted in [24] of Initial Action, I must be satisfied that the exceedence (and not the totality of the proposed development) is consistent with, relevantly, this objective for the height of buildings development standard.
I am unable so to conclude for the reasons generally advanced by Mr Robertson in this regard. I summarise, with reference to the relevant portions of Exhibit C dealing with cl 4.3(1)(a) of the LEP, why I have reached this conclusion. It is for the reasons set out in the following paragraphs.
The sole element relevantly in contention is whether or not this proposed development is compatible with the desired future character of development in the Strathfield Triangle precinct in terms of its building height.
The relevant height control which the Applicant's proposed development would breach is one which was created by the LEP, a local environmental plan which came into effect from early August 2013. The existing redevelopment elements which have been erected within the Strathfield Triangle to the north and west of the site are ones which were approved under controls applying in an earlier local environmental plan. No development has been erected (or, as I understand it, approved) within the Strathfield Triangle since the height controls in the relevant sheet of the Height of Buildings Map under the presently applicable LEP came into effect.
Future fine-grained planning for further development in the Strathfield Triangle, post the coming into effect of the now applicable LEP, has been provided for in the Triangle DCP. Although other controls also apply to the site, arising from the provisions under the more broadly applicable DCP, they do not require consideration in this present context as none of them are relevantly informative of aspects of the desired future character of development in the Strathfield Triangle as relating to building height. The Triangle DCP was adopted by the Council in April 2013 and commenced on 30 May 2014. This DCP applies to this proposed development.
The Triangle DCP expressly states, in the third paragraph of 1.1 Aim and Purpose of this Plan, that: This plan outlines the desired future character for the Triangle; establishes the preferred outcomes for each street; sets in place design guidelines for the planning and layout of sites and for the architectural resolution of the buildings.
In 3.0 Urban Form in the Triangle DCP, the first control (C.1) is that: Maximum building heights are not to exceed those shown by Map 2 Maximum Building Heights.
Map 2 (reproduced earlier at [50]) does not merely replicate what is shown on the relevant sheet of the LEP Height of Buildings Map (extracted at [52] above) but also expressly annotates the relevant LEP height designations with the expectation of the number of storeys to be achieved by development in each of the nominated height limit areas established by the LEP.
It is in this context that it is appropriate to consider each of the five propositions advanced in Exhibit C as satisfying objective (a) in cl 4.3(1) of the LEP. In doing so, I am referring to the bullet points set out earlier at [179], as extracted from Exhibit C.
The first bullet point contains, in its first two sentences, propositions that are unexceptional. The third sentence (The proposal will be consistent with those proposed new heights) is a bald assertion of opinion and adds nothing in this context.
The second bullet point, dealing with the existing dwellings on the site, relates entirely to the present character, rather than the desired future character. The second sentence in this bullet point (The proposed residential flat building will provide a more suitable contextual fit in the area, complementary to the adjoining built form) does not address the element of the proposed development that breaches the height of buildings development standard. It is to be accepted that any modern residential flat building constructed on the site is likely to provide a suitable contextual fit. This, however, provides no justification for breaching the height of buildings development standard. However, to the extent that this sentence also relies on the built form to the north, that reliance relates to controls under a now replaced local environmental plan and has no relevance concerning the desired future character under the controls for the heights of buildings created by the 2013 LEP and expanded upon by the Triangle DCP.
The third and fourth bullet points, to the extent that each of them relies on development which has taken place in the past under the now replaced LEP, provide no assistance in the present context. To the extent that the third sentence of the third bullet point (The proposal will present a predominantly compliant height when viewed from Leicester Avenue with the minor non‑compliant portion of the south-eastern corner not readily discernible), this contains the implicit concession that, to some extent (even if limited), the breach of the height control will be able to be discerned. More importantly, in the context of the express identification in the DCP at Map 2 that development on this site should be able to be read as a seven-storey building rather than an eight-storey one, that difference in character will, in fact, be starkly discernible from a variety of locations in the public domain. This breach of the desired future character storey presentation aspect, as advanced in the DCP's explanation of the desired future character under the 2013 LEP, has not been dealt with by the author of this cl 4.6 request. Indeed, relevantly Exhibit C is silent on this point.
The final bullet point deals with general merit aspects of the overall proposed design, rather than addressing, in any way, the exceedence of the height of buildings development standard.
As consequence, I am unable to accept that Exhibit C provides any proper or sufficient basis upon which I could conclude that the Applicant's proposed development is compatible with the desired future character of the Strathfield Triangle, as embodied in the 2013 LEP and the Triangle DCP, a DCP coming into effect consequent on the operation of the 2013 LEP from early August 2013.

[59]

The proposed Roads and Maritime Services' conditions of consent

As earlier noted, Leicester Avenue is a "classified road" under the Roads Act. This means that the concurrence of the RMS, the State's roads authority, must be given to the creation of new access points to such a road for the purposes of any proposed new development.
For the purposes of these proceedings, it is sufficient to note that the RMS indicated, by letter dated 12 January 2019 (Exhibit 3, Tab 16), that the RMS' consent was given to the Applicant's proposed development, with that consent being subject to 16 conditions to be imposed as applicable to that development consent.
It is not necessary to set out the entirety of the terms of the letter and of these proposed conditions. However, portion of the letter and six of the conditions are appropriate to be noted as they are relevant to my consideration of the traffic and parking issues earlier set out. The elements of the letter and the relevant proposed conditions were in the following terms: Reference is made to Council's email dated 10 January 2019, regarding the abovementioned Application which was referred to Roads and Maritime Services (Roads and Maritime) for concurrence under Section 138 of the Roads Act, 1993. Roads and Maritime has reviewed the development application and would provide concurrence to the application under Section 138, subject to Council's approval and the following requirements being included any development consent issued by the Council: … 8. "No Stopping" and "Clearway" signage shall be erected outside the site's frontage. This shall be installed at no cost to Roads and Maritime. … 10. The layout of the proposed car parking areas associated with the subject development (including, driveways, grades, turn paths, sight distance requirements in relation to landscaping and/or fencing, aisle widths, aisle lengths, and parking bay dimensions) should be in accordance with AS 2890.1-2004, AS2890.6-2009 and AS 2890.2-2002 for heavy vehicle usage. Parking Restrictions may be required to maintain the required sight distances at the driveway. … 13. All vehicles are to enter and leave the site in a forward direction. 14. All vehicles are to be wholly contained on site before being required to stop. 15. All demolition and construction vehicles are to be contained wholly within the site and vehicles must enter the site before stopping. A construction zone will not be permitted on Leicester Avenue. … 16. … In addition to the above, Roads and Maritime advises that any vehicle access to future development sites along Leicester Avenue should be provided in accordance with Control C.1, Section 3.6 - Vehicular and Pedestrian Access contained in the Strathfield Triangle Development Control Plan (DCP) - December 2012. In future instances, Clause 101(2)(a) of the State Environmental Planning Policy (Infrastructure) 2007 would apply and access will need to be provided by the new laneway. Roads and Maritime is granting concurrence in this instance as the proposed development will have a negligible impact to the classified road network, in terms of safety and efficiency.

[60]

Waste collection from the site

In my description of what was seen during the site inspection, I noted that there was a significant degree of kerbside waste collection undertaken from premises which had already been redeveloped within the Triangle. The only premises apparently capable of having waste collection take place within the premises was, at least potentially, a mixed use development with a frontage to Parramatta Road on its southern side (but within the Triangle, being between Cooper Street and Leicester Avenue) where the clearance for vehicles entering the basement of that site was 3.4 metres. As earlier noted as being observed during the site inspection, all of the other access apertures to basement parking for redeveloped sites in the Triangle had clearances of only just above two metres.
Unsurprisingly, because Leicester Avenue is a high‑traffic‑volume road as well as, in a formal sense, being a classified road, kerbside waste collection from the Applicant's proposed development on the site would not be appropriate. As a consequence, there is a dispute as to the appropriateness of the collection system proposed by the Applicant for removal of household waste when the development would be completed and occupied (if it is to be granted development consent). The question of domestic waste collection is, self-evidently, quite separate from the question of waste collection during the construction phase, an issue considered only as one element of the construction planning issue dealt with later.
It is, first, to be observed that the Applicant proposes a waste disposal system for the removal of the future domestic waste as being one based on retention by the future Owner's Corporation (of the completed development) of a private waste contractor for this purpose. The Applicant proposes that this regime be imposed as an enduring condition of consent. For the proposed private contractor operation, an entry and inside clearance to permit operation of the contractor's vehicles is required to be of a height of 2.7 metres. As is shortly to be explained, the development application which is before me for determination now provides for such a clearance.
Next, it is appropriate to note that, during the course of his oral evidence, Mr Giaprakas acknowledged that he was unaware of any council policy that would require exclusive use of the Council's waste collection contractors for the purposes of collecting domestic waste. This is a matter of importance in this discussion as a consequence of the fact that the Council's waste contractor's collection vehicles would require a significantly higher clearance (of 3.8 metres, a clearance required by the DCP).
The clearance proposed in the plans, as at the commencement of the hearing before me (being the plans for which leave had been given by the Acting Registrar on 10 January 2019), only provided for an entrance clearance of 2.4 metres, a height self-evidently incompatible with the proposed waste collection regime.
As earlier discussed in some detail, during the course of the first phase of the hearing, Mr Tomasetti advised me that Ms Marshall-McClelland considered that it was possible to amend, further, the development proposal in a fashion which would provide a 2.7-metre clearance at the entrance and at relevant locations within the site to permit the anticipated waste disposal arrangement to operate. This would involve increasing the slope of the driveway after it crossed the boundary of the site and lowering each of the proposed basement levels.
Although Ms Marshall-McClelland's advice was conceptual at that time (in that no plans or long sections of the revised driveway arrangement had been formalised), I was nonetheless satisfied that it was appropriate to order Ms Marshall-McClelland and her fellow experts to conduct a further joint conference on this (and on several other issues that had arisen) on the basis that formalised documents would be prepared and leave sought to rely upon them prior to the granting of development consent, if all other matters fell in favour of the Applicant. That joint conferencing took place and resulted in the preparation of a supplementary joint expert report from Ms Marshall-McClelland and her colleagues. This supplementary joint report became Exhibit 13. These experts agreed that the modification to the design, as proposed by Ms Marshall-McClelland, was feasible and acceptable (subject to formalisation of the documentation - as subsequently raised) and that there was, thus, no anticipated technical impediment to a design that would permit the domestic waste collection regime to be as proposed by the Applicant.
The consequence is that the proposed waste collection arrangements do not provide any impediment to the Applicant's proposed development.

[61]

Vehicle egress issues - the potential for pedestrian conflicts

I have earlier set out, as an element of my description of the site inspection undertaken at the commencement of this hearing, what was able to be observed concerning pedestrian movements (from north-to-south toward Strathfield Station) along Leicester Avenue on its western side across the frontage of the site. These observations occurred at approximately 10.00 am, well after the 7.00 am to 8.00 am morning peak-hour traffic period pressed by both Respondents as giving rise to, amongst other matters, unacceptable potential for conflicts between cars seeking to exit the site into the north‑travelling traffic on Leicester Avenue with pedestrians seeking to cross the site walking south towards Strathfield Station.
During the course of the preparation of material in support of the development application, Ms Marshall-McClelland had caused pedestrian counts to be undertaken, not only of such movements across the face of the site but also of each of the four pedestrian crossing opportunities at the intersection of Leicester Avenue and Parramatta Road. These pedestrian counts were incorporated in a report which she prepared for the purposes of these proceedings. That document, entitled "Supplementary Traffic and Parking Assessment Report", was in evidence (Exhibit A, Tab 4). These pedestrian counts were presented in both diagrammatic and tabular form. The diagrammatic presentation aggregated the count totals over the whole one-hour period of the morning peak, whilst the tabular data was broken up into 15-minute rests.
During the course of the oral evidence, I drew attention to the fact that the pedestrian counts in this report were not reflected in the modelling data contained in Exhibit 13, where different pedestrian count numbers appeared to have been used. I indicated my reservation as to the confidence I could therefore have in the modelling results. Mr Tomasetti indicated that he would seek clarification from Ms Marshall-McClelland on this point. At the subsequent mention of the matter on 20 February 2019, Mr Tomasetti advised that Ms Marshall-McClelland had informed him that there had been transpositional errors in the incorporation of the traffic count data in the inputs to the subsequent modelling. As earlier noted, he provided a document prepared by Ms Marshall-McClelland explaining what had occurred.
There was no objection from either Respondent to this correcting material.
When vehicles would seek to leave the basement car-park and turn into the stream of northbound traffic in Leicester Avenue, it was uncontroversial, in the traffic evidence, that, during the morning peak hour, it would be necessary for there to be courtesy extended to the departing vehicle by a driver in the existing traffic stream creating a break that would permit entry to the traffic stream the departing vehicle. This necessity would arise as a consequence of the fact that a queued cohort of northbound traffic would not get cleared, to travel north through the Parramatta Road/Leicester Avenue intersection, in a single northbound green cycle for that intersection.
In this context, the question of where the vehicle seeking to exit the site would wait to be provided with such an entry opportunity required consideration. Would the vehicle wait with its nose close to the kerb and thus across the footpath in a potential conflict with pedestrians or would the vehicle wait inside the property boundary, at a distance 3.5 metres from the kerb, leaving the pedestrian footpath unobstructed?
The latter position was advanced by Ms Marshall-McClelland on behalf of the Applicant. It was her view that vehicles seeking to exit would wait in the driveway, behind the property line. The position advanced by Mr Morse was that, in his experience, a driver seeking to exit from the driveway would wait with the nose of the vehicle close to the kerb and across the pedestrian footpath.
I am satisfied that there are several reasons why Mr Morse's evidence is to be preferred and that advanced, on this point, by Ms Marshall-McClelland is to be rejected.
First, as earlier noted, the ability for a vehicle to exit the site during the morning peak hour is contingent on a driver in the through-stream of northbound traffic behaving courteously and creating a gap for an exiting vehicle. The distance between the property boundary line and the kerb of Leicester Avenue is, as earlier noted, some 3.5 m. For a courteous northbound driver to create a gap to facilitate a vehicle exiting the site entering the traffic stream, the northbound driver would first need to notice that there was a vehicle seeking to exit.
On the southern side of the exit ramp proposed for the site, there is proposed to be, as shown on the ground floor plan (Exhibit D, Plan DA 2.01) for which development consent is sought, extensive landscaping to the property southern boundary and extending to the Leicester Avenue boundary. There is also to be a piquet fence to a height of 1.2 m on the southern boundary with this fence extending to the eastern property boundary (Exhibit D, Plan DA 4.02).
On the southern edge of the driveway itself, there is to be a solid wall to the eastern property boundary. The precise height is unclear but, as best as can be ascertained from a combination of Exhibit D, Plans DA 2.01 and DA 4.02, this wall is to have a height of 1.2 m above the pavement of the driveway at its exit point. These features would combine to limit the visibility of a car here being able to be observed by a north-travelling driver. However, as was earlier discussed in the context of cl 101(2)(b)(i) of the Infrastructure SEPP, this could be resolved by conditions of consent or further minor amendments to the plan. Nonetheless, if a vehicle was to wait at the location postulated by Ms Marshall-McClelland, that vehicle, if a car, would have its forward portion obscured as there would remain screening to one or 1.2 metres by lowered vegetation and a reduced height blade wall.
Second, even if the northbound, potentially courteous driver did observe the vehicle lurking at the mouth of the driveway, not only would that northbound driver need to stop to make sufficient space in the traffic stream for the exiting vehicle to enter the northbound traffic stream, but also allow additional time to cross the footpath to the kerb. These factors, taken together, would, I am satisfied, act as influences to reduce the likelihood that an exiting vehicle would stand at the location proposed by Ms Marshall-McClelland and wait for an opportunity to present itself to enter the traffic stream.
In addition, not advancing the nose of the exiting vehicle as close as possible to the kerb line near the traffic stream to which entry was being sought (and thus maximising the potential to take whatever chance might arise) seems to me to be inherently contrary to ordinary human nature.
For these reasons, Mr Morse's evidence is to be preferred.
The consequence of this is that it is likely that any potential pedestrian conflict that might arise with an exiting vehicle would, in fact, so arise.
Whilst it was the position advanced for the Applicant that, if such a conflict arose, any pedestrian whose passage was obstructed by a vehicle seeking to exit the site during this morning peak period could simply walk around the back of the vehicle and use the mouth of the driveway in order to continue their passage towards Strathfield Station; that likely practical response, however, does not lessen the undesirability of permitting a development where the potentiality for such conflicts is necessarily built into the outcomes that would arise if such a development was permitted.
However, the corrected pedestrian analysis provided by Ms Marshall-McClelland makes it clear this is likely to be of infrequent occurrence.
It is to be observed, however, that although this position which would arise if the proposed development was approved is undesirable, this certainly does not warrant, in itself, refusal of the proposed development. In addition, although an adverse impact, it would be so light that it could not contribute to the warranting of such refusal.

[62]

Vehicle access for construction

I have earlier set out the terms of the relevant conditions required by the RMS to be imposed on any development consent which might be granted for development on the site if consent was to be given.
As is required in Class 1 merit proceedings such as these, the Council has provided its "without prejudice" conditions of development consent. These are the conditions which the Council says should be imposed on the proposed development, if it was to be permitted. The conditions advanced by the Council dated 5 March 2019 (addressing the revised state of the proposed development) were contained in Exhibit 17. The relevant condition, Condition 35, addressing the necessity for construction management planning, was in the following terms: 35 Prior to the issue of a Construction Certificate, submit to the Accredited Certifier a Construction Management Plan that clearly sets out the following: (a) What actions and works that are proposed to ensure safe access to and from the site, and what protection will be provided to the road and footpath area from building activities, crossing by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like. (b) The proposed method of loading and unloading excavation machines, building materials, formwork, and the erection of any part of the structure within the site. (c) The proposed areas within the site to be used for a builder's site office and amenities, the storage of excavated material, constructions materials and waste containers during the construction period. (d) How it is proposed to ensure that soil/excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways. (e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve - the proposed method of support is to be designed by a Chartered Civil Engineer. (f) A Soil and Water Management Plan detailing all sedimentation controls. (Reason: Safety, amenity and protection of public infrastructure and the environment)
For the purposes of these proceedings, the issue was pressed on behalf of the Neighbouring Owner that, at the development assessment stage before me, I needed to be satisfied that demolition of the existing structures on the various allotments comprising the site; excavation of the three levels of the proposed basement car-parking; and construction of the proposed residential flat building could be undertaken in a fashion compliant with the RMS' conditions and without occasioning the use of any element of Leicester Avenue for vehicle staging whilst any of these activities were being undertaken.
In addition, the Neighbouring Owner proposed I needed to be satisfied that the requirement for all vehicles to enter and exit the site in a forward direction, in all of these phases, could be achieved.
As has been earlier noted, one of the conditions proposed by the RMS in its 12 January 2018 letter was the requirement, in RMS Condition 15, that all vehicles required to service the site during the construction phase be able to be accommodated within the site. In addition, the RMS also proposed a general condition applicable at all times (and not merely confined to the construction phase - but certainly applicable to it) that all vehicles were required to enter and exit the site travelling in a forward direction.
During the course of opening submissions, Mr Robertson suggested that the Neighbouring Owner proposed to contend that preparation of a Construction Management Plan (CMP), in order to demonstrate that the ability to comply with these two conditions during the construction phase, should not be left to preparation of a CMP to be submitted to the Council after the granting of development consent if I was proposing to do so. It was foreshadowed that the submission would be made that this requirement was sufficiently central to satisfaction that Leicester Avenue would neither be disrupted significantly, nor have unsafe manoeuvring taking place on it during the construction phase that I should require a CMP to be prepared and submitted to me so that I could be satisfied that there would be no impacts on Leicester Avenue during the construction phase.
During the course of his oral evidence, Mr Pegg was asked whether the RMS was satisfied that these conditions were capable of satisfaction. His response was (Transcript, 6 March 2019, page 20, lines 21 to 30): Q. Has RMS considered whether or not that condition is capable of being complied with? A. We believe it can be complied with, your Honour. Q. On what basis? A. Similar sites across the network have actually done different things in terms of constructability to ensure that construction zone wouldn't need to occur on Leicester Avenue; for example, indenting onto a site, or building a platform, what have you, we've seen it and we're satisfied that a construction zone would not be required.
As the issue of whether or not these two elements of the RMS's conditions can be satisfied is quite independent of any matters relating to whether or not the proposed permanent access from Leicester Avenue satisfies the test set by cl 101(2)(b)(1) of the Infrastructure SEPP and, in circumstances where the is no evidence to contradict that given by Mr Pegg (even accepting the qualification that Mr Pegg, as he himself acknowledged, as a planner and not a traffic engineer), there is no basis upon which I could conclude that construction activities raised any impediment to the granting of development consent for the Applicant's proposal. A construction management plan would not be necessary prior to any granting of development consent.

[63]

Service vehicle access to the site

I have, earlier, dealt with the question of the adequacy of access for vehicles providing domestic waste removal. For the reasons earlier explained, I am satisfied that the 2.7-metre ramp clearance and vehicle operational area clearance in the first basement level when coupled with an ongoing condition requiring domestic waste services to be provided by a private contractor engaged by the future Owner's Corporation provides an adequate response to issues raised in this regard.
During the course of his evidence Mr Pegg was asked about the terms of Condition 10 of the RMS' conditions in Exhibit 3 Tab 16 (Transcript, 6 March 2019, page 12, lines 16 to 33). He said: Q. For the purposes of the concurrence letter of 12 January, I assume that it is Mr Tancevski who has the authority to formally modify the terms of the consent, rather than you, is that the correct position? A. No, I do as well, I have the delegation level to do that. Q. To the extent that there needs to be on the basis of your response to Mr Tomasetti, several questions ago, modification to proposed condition 10, to delete the words, "For heavy vehicle usage", at the top of the third page and to alter the Australian standard AS2890.2 to reference 2018 rather than 2002, you here, on record, cause that amendment to be made, is that correct? A. I can make that amendment, yes I can. Q. I'm not asking you whether you can, I'm asking you whether you do, it's a slightly different thing. Do you? A. Yes, I can. I will, I will do it. Q. I think perhaps if you tell me for clarity that you do, do it, is that correct? A. I do, do it, yes.
As a consequence, Condition 10 required by the RMS (now shown as modified by Mr Pegg in the witness box but showing the change he made as a strikethrough) became a condition in the following terms: The layout of the proposed car parking areas associated with the subject development (including, driveways, grades, turn paths, sight distance requirements in relation to landscaping and/or fencing, aisle widths, aisle lengths, and parking bay dimensions) should be in accordance with AS 2890.1-2004, AS2890.6-2009 and AS 2890.2-2018 for heavy vehicle usage. Parking Restrictions may be required to maintain the required sight distances at the driveway.
In this context, although the words "for heavy vehicle usage" were deleted from the RMS' condition, this does not remove the necessity from the condition for access compliance with the third of the Australian Standards listed in it. This Standard (Exhibit G) sets out, in Section 2 Design Vehicles, relevant matters that require consideration in this context. First, in 2.1 General, the standard lists seven classes of "design vehicles" that fall within the scope of the standard. In 2.2 Description and Dimensions, the Standard sets out the "basic limiting dimensions" for each of these seven classes of vehicle. Those dimensions are set out in Table 2.1.
The matter which arises for consideration concerns the ability of service and delivery vehicles to access the site. This raises the practical question as to how deliveries and removals would be able to be effected to service residents in the proposed apartments.
For the purposes of this consideration of servicing access to the proposed development, I confine myself to consideration of delivery and servicing operations being conducted by, at most, an SRV and pay no heed to the other six categories of vehicle set out in the Standard (as they are clearly inappropriate to be considered in this context).
Mr Morse suggested that, to enable a proper understanding of what was intended by the amended RMS' condition, recourse should be had to the relevant Australian Standard of those listed in the now modified condition. A copy of the current Standard was tendered, becoming Exhibit G, Australian Standard 2890.2-2018.
Exhibit G contains both descriptive definitions of the various types of truck, together with tabular and diagrammatic representations of the dimensions adopted for each of those definitions. Potentially relevant for the purposes of my assessment, it was agreed that the definition which potentially required consideration was that of a small rigid vehicle. That definition, contained in 2890.2-2018 of the Standard, is in the following terms: Small rigid vehicle (SRV) - The SRV represents light trucks to a maximum load capacity of 4.0 t and typically having a single rear axle and either single or dual tyres. The SRV is the design vehicle which should be adopted where the service area is to be used by small commercial vehicles only. This class excludes van type commercial vehicles more similar to B99 vehicles as defined in AS/NZS 2890.1.
The relevant dimensional depictions of a vehicle satisfying this development are set out at page 6 of Exhibit G. The sole dimension engaged for consideration in this aspect of these proceedings is the height of such a vehicle and whether or not, for the purposes of what is to be read as being required by the relevant RMS' condition to which I have earlier referred, is a clearance height for the driveway ramp and operational areas of the first basement level that would permit access and manoeuvring by vehicles of that defined height.
The height mandated by the definitional material in Exhibit G for a small rigid vehicle is 3.5 metres.
It is clear that, with a maximum clearance height, as a result of the Exhibit M changes, for the ramp and service manoeuvring areas on the first basement level of 2.7 metres, vehicles which fall within the definition of a small rigid vehicle but which require a clearance of less than 3.5 metres but greater than 2.7 metres (the amended clearance height in the present plans) will not be able to access the site. At issue, therefore, is whether the relevant RMS' condition, if imposed in the terms earlier set out, mandates provision of a ramp clearance and operational manoeuvring area on the first basement level that would accommodate 3.4‑metre clearance small rigid vehicles. If so, should some alternative access opportunity be regarded as a satisfactory substitute?
Ms Marshall-McClelland and Mr Morse had each made enquiries of various companies that they considered might operate vehicles representative of the type which would make deliveries to a development such as this. It was Mr Morse's evidence that, for example, home supermarket deliveries by either Woolworths or Coles would be undertaken using a vehicle requiring a 3.4‑metre clearance. It was his evidence that a clearance of that nature was generally necessary across not only those vehicles but also the range of other businesses of whom he made enquiries. It was Ms Marshall-McClelland's evidence that her enquiries revealed that vehicles requiring a slightly lesser clearance might commonly be expected to seek to deliver to a development such as this.
It is unnecessary to resolve this difference between them (however, if I had to do so, I would prefer the evidence of Mr Morse, as I consider that the range of enquiries which he had made was more broadly representative of potential delivery types for this development). Given that the maximum clearance which will be available to service this proposed development will only be 2.7 metres on the basis of the revised ramp and first basement level amendments, the precise extent to which the proposed clearance would be inadequate strikes me as a matter of irrelevance.
It is clear, however the position might be regarded, that this proposed development, if approved, will not be able to be serviced, on site, by the range of conventional small rigid vehicles which might otherwise be expected to be utilised for deliveries to residents of the proposed apartments.
It is necessary, therefore, to consider how servicing of residents of the proposed development could otherwise be effected. The position advanced for the Applicant was that these needs could be met in one of two ways. First, residents needing some form of servicing could arrange for that to be undertaken by a vehicle for which the 2.7-metre clearance to be provided would be sufficient. This, it was suggested, could be by a utility vehicle or a vehicle with a trailer. However, if servicing was to be undertaken by a vehicle that was unable to access the basement for clearance reasons, that servicing could be undertaken from Hilts Road, with delivery of any goods, including bulky goods such as furniture and whitegoods, taking place through the sliding gate at the western end of the pathway along the southern boundary of the site.
Although I have earlier explained, in considering the jurisdictional tests, why I could not accept that no delivery or servicing vehicles of over clearance height would seek to enter the site, I set that aside for the purposes of considering how such servicing might be achieved, as a practical matter, absent access for such vehicles to the site. The assumption must be that such vehicles would turn left into Parramatta Road; left into Cooper Street; and left into Hilts Road. It is then to be assumed that the vehicle would stop in Hilts Road in order to effect delivery of goods to the proposed development or access for servicing tradespeople.
In this context, I have earlier set out at (57) what was observed during the course of the site inspection as to the availability of parking spaces in Hilts Road. It is to be assumed that there would be a distinct likelihood that such a vehicle seeking to utilise the rear access to the site would need to park illegally whilst doing so. For goods delivery, this might only be for a short period of time, whilst, for servicing of some nature, a longer period might reasonably be anticipated.
During the course of the hearing, it was confirmed that the access gate would have a cleared aperture of 1.2 metres. Although Mr Giaprakas, referencing the survey plan (Exhibit J), said that the full width of the gate might not be able to be utilised because the wall of the electricity substation, on the land of the development at the north-eastern end of Hilts Road, extended slightly beyond the boundary of that property (Transcript, 5 March 2019, page 95, lines 45 to 49). Whilst an examination of Exhibit J discloses a minor pinch-point being created as a consequence of the minor extension of this substation wall to the south of the property boundary, I am satisfied that there is sufficient manoeuvring room to permit access to the site via the sliding gate for such deliveries.
Similarly, I accept that the pathway along the southern boundary of the site will be designed so that there will be an entrance at grade at this gate.
During the course of the town planning/urban design evidence, the question was asked as to what would be the path of travel for delivery from a vehicle parked in Hilts Road and effecting goods delivery to the site. The response given by Mr Johansson was (Transcript, 5 March 2019, page 95, line 40): WITNESS JOHANSSEN: Yes, it is. It is adequate, yes.
Ms Irish asked Mr Giaprakas a further question on this issue and both question and answer is replicated below (Transcript, 5 March 2019, page 96, line 45 to page 97, line 1): IRISH: Do you have anything to say to the Court in relation to the means by which something got through that gate would be got to a destination? WITNESS GIAPRAKAS: Well, as I see it, you would need to go in and along the western boundary path and up around the ramp into the courtyard and back through back through lobby areas and up lifts depending on which end of the building you're going so quite a path.
Whilst this path of travel within the site, or the alternative path of travel along the full length of the pathway along the southern boundary; exiting the site and turning left along the footpath of Leicester Avenue; crossing the driveway of the site; and entering through the main entrance doors would be functionally viable, nonetheless, they are certainly not reflective of good design.
Whilst, as set out in the notes of the site inspection, only the mixed use development on Parramatta Road had an entranceway with sufficient clearance to accommodate light rigid vehicles, all the residential flat buildings we observed would require utilisation of on-street parking for delivery or service access for any vehicle requiring a clearance higher than a little more than two metres (the clearances varying).
Although the clearance now proposed for the development on the site would be greater than these other residential flat buildings (as a consequence of the clearance height amendment now incorporated as a result of Ms Marshall-McClelland's ramp and basement 1 redesign), this, for the reasons outlined, does not resolve the issue.
However, from what was able to be observed during the site inspection, on‑street parking for deliveries or servicing would permit access to each of these other residential flat buildings via the primary entrance to the building from the street frontage or, if necessary, directly down the driveway and into the basement area. These direct access paths are in distinct contrast to that which would be necessary if the Applicant's proposed development was to be approved.
Whilst the awkwardness of either of the access paths (particularly for bulky goods delivery) is reflective of poor design, this design deficiency does not, in itself, warrant refusal of the proposed development. However, it does contribute to the conclusion, having regard to the accumulation of all of the design defects of the proposed development, that approval is not warranted.
I am unable to accept that, whatever might be the endeavours of the Owners Corporation, if the development was approved, that an effective regime could be imposed that would entirely prevent any delivery or servicing of the development being sought to be undertaken utilising a light rigid vehicle that would not be capable of entering the site because the driveway clearance and first basement level would not permit access by the tallest vehicle meeting the maximum height in the definition in the relevant Australian Standard (or any other light rigid vehicle requiring a clearance of 2.7 metres).

[64]

The adequacy of ventilation

The Apartment Design Guide proposes that 60% of apartments in a residential flat building of this number of residential storeys should have cross-ventilation. As earlier noted, the Applicant had commissioned Dr Al‑Khalidy to undertake an analysis of solar access and ventilation issues raised by Ms Francis on behalf of the Neighbouring Owner.
Dr Al-Khalidy had participated in an expert conclave with Ms Francis and Mr Giaprakas. As a consequence of that process, they produced a joint expert report dealing with these two topics. That joint report became Exhibit 15. The three of them gave concurrent oral evidence on both solar access and ventilation issues during the course of the hearing on 5 March 2019.
It was their agreed position that only 24 apartments in the proposed development would have cross-ventilation in the fashion envisaged by the Apartment Design Guide.
However, it was Dr Al-Khalidy's position that a sufficient further portion of the proposed apartments would have what he described as natural ventilation so as to have the equivalent of cross-ventilation to a sufficient level of air circulation. His opinion concerning this was set out at 3.42 in Exhibit 15 in the following terms: The 3D model showed that 16 single aspect apartments within the development are able to generate natural cross ventilation enabled through the building's façade articulations (balcony, building recesses, etc). Based on this quantitative study of non-dual aspect units plus the ADG-compliant dual aspect units, 64.5% (40 units) of all apartments will meet the ADG requirement. Refer attached Natural Cross Ventilation Update Report dated 26/2/2019.
As can be seen from the above extract, Dr Al-Khalidy relied on a report setting out the results of computer modelling based on Computational Fluid Dynamic Analysis. Although he had not, personally, undertaken this modelling, the modelling had been undertaken by an employee of his consultancy and that this modelling had been undertaken under Dr Al-Khalidy's supervision. That modelling, in a document entitled "38-42 Leicester Avenue, Strathfield Natural Ventilation Assessment" and dated 18 July 2017 became Exhibit O.
In Exhibit O, the modelling was described in the following terms: A computer model of the development was created and Level one, two, five and six apartments were included for detailed numerical assessment. The Computational Fluid Dynamics (CFD) specialised software FLUENT was used to model the following wind directions. • North east • South east • South • West In each case a wind speed of 1.66 m/s was used.at 10 m high. Based on actual wind data across 11 years, the average wind speed measured in Sydney Olympic Park is higher than 2 m/s, 69% of the time. Windows and sliding doors shown in the site plans were assumed to be fully open for the model. Simple blocks were used for nearby surrounding buildings to include the impact of the surroundings on the natural ventilation for the proposed building. All velocities in the following images are in metres per second and the simulation results are presented at a typical chest height of 1.5 metres above the floor level. 5.2 Results To be considered natural ventilated, wind speeds in the apartments should be at least 0.1-0.2 m/s and provide ventilation through at least two rooms. If an apartment meets the requirements for three of the four wind directions it will be considered to be cross ventilated. 6 CONCLUSION SLR has been engaged by Huajun Investments Pty Ltd to quantitatively assess the natural ventilation in the proposed development at 38-42 Leicester Avenue in Strathfield using CFD analysis. The assessment forms part of the Development Application to Canada Bay Council. The State Environmental Planning Policy (SEPP) 65 supported by the Australian Design Guide is relevant to to the assessment of the natural ventilation through residential components of proposed development. Section 4B-3 of the Australian Design Guide states that: At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building. Apartments at ten storeys or greater are deemed to be cross ventilated only if any enclosure of the balconies at these levels allows adequate natural ventilation and cannot be fully enclosed. By adding the CFD modelling to the previous qualitative analysis SLR estimates that 68.6% of the apartments will be naturally cross ventilated.
The structure of the modelling was to test the extent of internal ventilation that would be achieved in various proposed apartments under the four relevant prevailing wind directions. The wind data which was applied in this modelling used relevant wind directions and speeds from meteorological data captured at Sydney Olympic Park (Exhibit O, page 6).
Dr Al-Khalidy explained that, for any of the proposed apartments to be regarded as having adequate natural ventilation, in his opinion the test there noted above as being 5.2 had to be satisfied. This test had been applied in analysing the output from the modelling.
Although Dr Al-Khalidy was closely questioned by Mr Robertson about the appropriateness of the underlying assumptions that had been adopted for the modelling, Dr Al-Khalidy was not to be shaken on the proposition that the various windows and doors that had been assumed to be completely open for the purposes of the modelling had had that assumption adopted in a proper fashion.
Although Mr Robertson tested Dr Al-Khalidy on the question of how awning-hung windows were regarded as being fully open, given the nature of their operation and a lack of identification on the architectural plans as to what window types were to be implemented in each of the apartments, Dr Al‑Khalidy explained that, in addition to the architectural plans, a computer‑aided design (CAD) data file had been provided by the architects. The CAD file included detailed three-dimensional information enabling an understanding of the various styles of fenestration proposed for the design, Dr Al-Khalidy testified.
For the purposes of the discussion Dr Al-Khalidy had with Ms Francis and Mr Giaprakas, Dr Al-Khalidy had also provided a document (which was referenced in the extracted 3.42 of the joint cross-ventilation and solar access report (Exhibit 15)). A copy of this document had, inadvertently, not been provided with Exhibit 15 when it had been provided to the legal representatives of each of the Respondents and it had not been included with the exhibit when it was tendered. This deficiency was subsequently rectified and the document was appended to Exhibit 15, becoming part of it.
In Appendix A to this document, Dr Al-Khalidy set out his analysis as to what apartments in the proposed development would have either cross-ventilation or what he considered to be adequate natural ventilation derived from the modelling which had been undertaken under his supervision. That table disclosed that, on this basis, the objective sought to be achieved by the Apartment Design Guide's guideline for cross-ventilation would, in fact, be achieved by a combination of direct cross-ventilation and adequate natural ventilation in the fashion described by him.
Both Ms Francis and Mr Giaprakas indicated that they lacked technical competence to address the way the modelling had been undertaken. In this regard, Mr Giaprakas said, at 3.44 of Exhibit 15: Mr Peter Giaprakas does not offer any evidence on whether the computational fluid dynamic analysis of Dr Al-Khalidy in relation to airflow would address the cross ventilation criteria.
Ms Francis indicated, during the course of the concurrent evidence on this topic, that she also was unable to comment on the modelling methodology.
However, it is to be observed that Mr Giaprakas had expressed, in the joint report, his view that, on the assumption that the modelling is to be accepted, he had no concerns about the adequacy of ventilation for sufficient of the apartments in the proposed development that this was no longer an issue for him. In 3.43 of Exhibit 15, he said: Mr Peter Giaprakas accepts that the Applicant's submitted Ventilation Study diagrams and Dr Al-Khalidy's additional analysis adequately demonstrates that the proposal satisfies the ADG requirements with regard natural ventilation.
During the course of her oral evidence, I understood Ms Francis to agree with the proposition that, on the assumption that the modelling was accurate, she, too, no longer regarded ventilation as an issue.
As a consequence, ventilation is to be regarded as acceptable.

[66]

Solar access for the proposed apartments

I have, earlier, noted the fact that Ms Francis had questioned, during the earlier phases of these proceedings, the extent to which the proposed development complied with the guideline in the Apartment Design Guide for solar access across the apartments in the proposed development. As a consequence of this, the Applicant was granted leave to commission additional expert evidence on this point, with that expert to confer, jointly, with Ms Francis and Mr Giaprakas on that topic. This led to the engagement by the Applicant of Dr Al-Khalidy as described in the earlier section dealing with ventilation issues.
Dr Al-Khalidy produced a short expert report on solar access matters. This report was accompanied by a bundle of View From The Sun Diagrams showing the extent of direct sunlight falling on windows of the proposed apartments. This became Exhibit H. These diagrams depicted the direct solar access at 15-minute intervals from 9.00 am until 3.00 pm as at the winter solstice (21 June). No question was raised concerning the accuracy of the diagrammatic material, although there was a contest as to what conclusions might be drawn from it.
The context within which this issue requires consideration is the guideline in the Apartment Design Guide proposing that 70% of apartments in any proposed residential flat building development should have two hours of direct solar access to living areas of the proposed apartments. In this context, it is to be observed that this proposed compliance level is not a development standard and, therefore, is not to be regarded as immutable.
On the basis of the view from the sun diagrams in Exhibit H, Dr Al-Khalidy expressed the view that 74% of the proposed apartments would satisfy the guideline in the Apartment Design Guide. He said (Transcript, 5 March 2019 page 17, lines 29 to 50): WITNESS AL KHALIDY: Can I just clarify one thing? In my report we've got two sections, two tables; one looking at the 923 (presumed to be "9 to 3") just and to get a new medical (presumed to be "numerical") compliance with the ADG. Then I put another table in the report, table 2, which is no modifications to the buildings and just like because the solar access before 9 o'clock. Then I looked at the eight to nine east facing units, will have a good quality sun from 8 o'clock. Then those design recommendations, if we implement. We may improve the solar access by 15 minutes only just to achieve any medical compliance but the amenity of the development will have a good solar from 8 o'clock. And in table 2, the solar access is significantly improved when two apartments at when assessed it between 8 and 4pm and this is page table 2, page 6 of that report. And we will get 46 units with at least two hour solar access. Many units will get a three hour solar access. Then 74% will achieve more than two hour solar access and only five units will have no direct sunlight. Then the amenity, I looked at it from eight to four because this is where the building is going to be there, the sun is going to be there. The next part I did a numerical compliance. Based on my assessment, I found like 53 will achieve two hour solar access between 9 and 3. Then I did a few modification, it is definitely there is not only solar access aspect to the design, there are many other design aspects. Then I did those modifications to achieving new medical (presumed to be "numerical") compliance between 9 and 3.
It is a little difficult to discern, precisely, what Dr Al-Khalidy was proposing in the above extract from his oral evidence. This is, in part, as a consequence of the difficulty that those transcribing his evidence had in doing so and, also at least in part, as a consequence of what appeared to be Dr Al-Khalidy's jumbled thought processes. It is, however, necessary to explain what I have drawn from the above passage. There are three propositions inherent in it, on my understanding of what the witness said. These are:

First, permitting the solar access assessment for this proposed development to be undertaken from a commencing time of 8 am rather than the conventional 9 am would result in greater compliance. I have, below, explained why I rejected this proposition.
The second and third propositions arise with respect to that which Dr Al‑Khalidy proposed would be the combined benefits of an 8 am assessment start coupled with a number of design changes which he advanced as having solar access benefits. Given that the Applicant declined to embrace these proposed design revisions, it is unnecessary to consider them further.

It was also his opinion that, even if I was not prepared to accept the basis upon which he reached that conclusion, nonetheless, having regard to the extent of the solar access provided to apartments proposed for the Leicester Avenue orientation of the building, that solar access would be more than adequate, if the relevant time period for assessment was taken from 8.00 am on the winter solstice rather than the 9.00 am starting time specified in the Apartment Design Guide.
The position adopted by Ms Francis, as I understood it, was that it was not appropriate to depart from the assessment period identified in the Apartment Design Guide and that, on the basis of the guideline contained in it, the proposed building design was significantly non-compliant, in both a quantitative and qualitative respect, and that a better building design could have provided greater solar access for the proposed eastern-oriented apartments.
It is appropriate, to understand that which follows, to observe that the view from the sun diagram, as at 10.45 am is reproduced below.
As can be seen, the blue-shaded areas on this diagram depict the elements of the glazing of the Leicester Avenue-facing apartments that receive direct sunlight at 10.45 am on the winter solstice. It was Ms Francis's opinion that the extent of sunlight penetration through this glazing would be so minimal as to warrant being disregarded in any solar access assessment of the proposed development. Indeed, Dr Al-Khalidy's Table of Solar Compliance (Exhibit H, page 6, table 1) observed, with respect to living rooms and private open spaces of apartments facing Leicester Avenue, that the solar access assessment for these apartments was subject to the qualification that: In the proposed scheme, some internal living areas do not achieve the guideline of 2 hours solar access as the glazing is set back from the façade.
It is to be observed that, in qualitative assessment of solar access, the Apartment Design Guide (Exhibit B, tab 3, page 48) separately, provides that: Access to sunlight for habitable rooms and private open spaces is measured at mid-winter (21 June) as this is when the sun is lowest in the sky, representing the 'worst case' scenario for solar access.
Dr Al-Khalidy had produced view from the sun diagrams in Exhibit H showing the degree of compliance of the east-facing proposed apartments with this guideline. I did not understand this assessment to be questioned by Ms Francis. It is to be observed that, as earlier noted, the Apartment Design Guide guidelines do not have the status of development standards and strict compliance is not, in any fashion, mandated.
However, despite the extent of compliance with the guideline set out immediately above, it remains appropriate to assess the question of whether or not there is solar access to the proposed apartments, on a qualitative consideration, to conclude that the amenity of those apartments was acceptable in this regard.
I am satisfied that the cautionary words from Dr Al-Khalidy's description, applied to solar access for the Leicester Avenue-oriented apartments, is entirely appropriate. The extent of the solar access to these apartments is more restricted than Dr Al-Khalidy has proposed in his analysis which is founded on assuming that the solar access in the diagram reproduced above should be counted toward compliance levels.

[67]

A more permissive solar assessment period?

I have earlier noted that Dr Al-Khalidy had proposed that the period for assessment of adequate solar access assessment should be extended so as to be commenced from 8.00 am rather than 9.00 am as specified in the Apartment Design Guide. If such an approach was to be taken, it was his evidence that there would be significantly greater solar access achieved for the apartments facing Leicester Avenue. It was Ms Francis's opinion that, if such a more permissive position was to be taken (a position which I did not understand her to support), the percentage of apartments achieving the desired two hours' solar access should also be increased above the 70% otherwise set by the Apartment Design Guide as the desirable percentage for solar compliance. In his closing submissions, Mr Robertson proposed that I should adopt the approach embodied in Ms Francis's suggestion and reject any extended period for solar access availability assessment.
On the other hand, Mr Tomasetti submitted that, adopting such an approach and retaining the Apartment Design Guide percentage as the benchmark against which compliance should be assessed, a relaxation of the time from which solar access assessment might be commenced to 8.00 am rather than 9.00 am was not unreasonable. In advancing this proposition, he relied on a decision by Brown ASC in Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3) [2015] NSWLEC 1282 where, at [46], the Acting Senior Commissioner accepted that the facts and circumstances of that proposed development did warrant an assessment based on an 8.00 am commencement time for assessment of the solar access adequacy for that proposal.
There are two observations to be made concerning the circumstances being dealt with by the Acting Senior Commissioner that differentiate the development proposal with which he was dealing and that which I am here considering. First, the site that was the subject of the proposed development being considered by the Acting Senior Commissioner was one with an east‑west long axis (decision at [46]), an orientation which makes provision of solar access more limited as a consequence of the fact that any south‑facing apartments will be unable to achieve solar access. This site has a north-south-oriented long axis and the development aspects of the apartments are either to the east, to Leicester Avenue, or to the west, toward the existing residential flat building at the eastern end of Hilts Road.
Second, the percentage of apartments that would be solar-compliant, if the more permissive solar access assessment regime was adopted, was 64% for the proposed development being considered by Brown ASC.
In these proceedings, the base from which 9.00 am assessment commencement full compliance is achieved is quite significantly lower (being 53% - Exhibit H, page 6, table 1). The evidence from Dr Al-Khalidy was that the percentage of apartments in this proposed development would just exceed the 70% compliance level proposed by the Apartment Design Guide if such a more permissive assessment approach was to be taken (at Exhibit H, page 6, table 2, compliance between 8am and 4pm of 74%).

[68]

Failure to explore more compliant design options

Mr Robertson cross-examined Dr Shiels as to whether or not he had requested the architect to consider design alternatives that would have improved the solar access for the apartments and whether he was aware if the architect had independently contemplated potential design changes. The relevant portion of Dr Shiels' evidence on this was in the following terms (Transcript, 5 March 2019, page 64 lines 1 to 21): ROBERTSON: I suppose you've never asked the question of the architect, have you, Dr Shiels, whether it was possible to improve solar access but in doing so lose some floor space in the process? WITNESS SHIELS: I assure you, I've asked the architects many times about solar access. ROBERTSON: This architect about this building? WITNESS SHIELS: Yes. ROBERTSON: You've asked this architect about this building about how he could improve solar access? WITNESS SHIELS: I've asked the architect about solar access for this building. ROBERTSON: No. Have you asked the architect how solar access to this building could be improved? WITNESS SHIELS: I haven't asked that specific question.
In addition, it is to be observed that the front setback of the proposed development is set in the design at a little less than three metres (being 2.985 metres at the northern end adjacent to the development on the corner of Leicester Avenue and Parramatta Road). This is one metre less than that which is envisaged in the relevant setback control contained in the Triangle DCP at Map 3 - Minimum Street Setbacks.
In the context of the assessment of the adequacy of solar access, it is pertinent to note the comment made by Ms Francis as to why she accepted that a setback to Leicester Avenue consistent with that of the development to the north, on the corner of Parramatta Road, was appropriate. She said (Transcript, 5 March 2019, page 26, lines 14 to 23): In terms of the setbacks, yes, but that's not the only control that applies. What is different is that there is no floor space ratio control on this site and the floor space and the density controls that apply to this road are predicated in the DCP. The floor space ratio controls were moved from LEP which apply to the building to the north and they're removed from the LEP as far as they relate to this land and land in the triangle and the DCP controls establish the building of ..(not transcribable).. density, the control. So whilst I absolutely accept the setback controls which I've just shown you, that it's the ‑ all the controls now take the density … the density that can be built and that is less than that was previously anticipated.

[69]

Conclusion on solar access

In circumstances where there has been a relaxation of that which would otherwise be required for a development design on this site (the front setback):

which relaxation has the effect of improving the ability to provide solar access to apartments; and
where there is significant non-compliance with that which is suggested by the Apartment Design Guide as the appropriate degree of solar access based on a 9.00 am assessment commencement period and where there is no suggestion that adoption of an 8.00 am commencement time for such assessment would bring radically greater improvement toward compliance (let alone achieving compliance) with a two-hour, good quality solar access period across the proposed development; and
no suggestion was made to the architect that design alternatives which were, on Dr Shiels' evidence, potentially available (albeit with the possibility of lost floor space or reduction in apartment numbers) had been suggested to the architect or independently explored by the architect in order to improve solar access; and
where Dr Al-Khalidy's own assessment with respect to 18 apartments facing Leicester Avenue were in receipt of "marginal" solar access toward the end of a 9.00 am commencing assessment period (and it being my factual assessment that the solar access to these apartments from 10.45 am (if not from somewhat earlier) is of such limited penetration as not to warrant being regarded as solar access of any functionality whatsoever); and
the long axis orientation of the site is north-south that all combine, in my view, to lead to two separate conclusions.

First, even though that which is proposed as the appropriate assessment period by the Apartment Design Guide does not have the status of a development standard and is merely for the purposes of guidance as to the desirable approach to be taken, the combination of the above circumstances applying to this site do not warrant adoption of an 8.00 am commencement time for the assessment period to determine whether or not adequate solar access would be provided to apartments in the proposed development.
Second, although Mr Robertson did not submit that the inadequacy of the solar access to apartments during the appropriate assessment period warranted refusal of the development on this basis alone, that is not a submission that I am obliged to accept. What I am undertaking is my own assessment based on the extent of the inadequacy of solar access to the proposed apartments when assessed against the guidance given by the Apartment Design Guide. In light of the various factors set out above (particularly the relaxation of the Leicester Avenue setback and the failure to explore alternative design options which would improve solar access), the impact on the amenity of residents of the proposed development by the quite stark non-compliance with the solar access in the Apartment Design Guide is such that too many apartments would have poor internal amenity and that the extent of that paucity warrants, in and of itself, refusal of this proposed development.

Huajun Investments Pty Ltd v City of Canada Bay Council

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