Hyside 34 Leicester Pty Ltd v City of Canada Bay Council

Land and Environment Court (NSW)|2024-04-17

Background

At the outset, let me be clear about the complications inherent in seeking approval for "alterations and additions" to an approved application as opposed to submitting a modification application. Such complications as were highlighted by the Court in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 (Baron) at [4] and [5]. Albeit I accept that this course was open to the applicant: Waverley Council v Harris Architects (2002) 123 LGERA 100; [2002] NSWLEC 180; Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780.
Preliminary to any proper assessment of the proposal there needs to be a clear and detailed understanding of the development that has been approved in order to assess the provisions in s 4.15 of the EPA Act generally, and cl 4.6 of the LEP particularly (Baron at [87]). While the two development consents - the 2022 consent and any consent that might be granted for the alterations to the approved residential flat building, would need to be read together to understand the altered residential flat building that has been approved to be erected and to be used (Baron at [4]), it is only the subject alterations and additions DA that constitutes the "development" for assessment pursuant to cl 4.6 (Baron at [9]) (Council's written submissions dated 21 June 2024 (CWS) at par 4).
The applicant, with this in mind, submits that the plan in Ex K, which shows the current proposed ground floor compared with the previous DA-approved ground floor plans, and Mr Thorne's evidence (Tcpt, 17 April 2024, pp 35-45) clearly explains the interrelationship of the two developments. Acknowledging that there can be no argument about the fact that the basement, the external configuration of the building and the details of the internal layouts are different; or that practical difficulties arising from such changes must and will be addressed (by the applicant) if approval is granted (Applicant's written submissions in reply dated 8 July 2024 (AWSR) at pars 3-5).

The Strathfield Triangle Development Control Plan (STDCP)

As noted earlier, the development site is located within an area defined as "the Strathfield Triangle" which is subject to the STDCP.
The STDCP, which commenced on 30 May 2014, makes provision for an amalgamation of sites.
There are 8 amalgamation blocks and the properties at 30-34 Leicester Avenue are identified as a block to be amalgamated under the amalgamation pattern in the STDCP as Block 4. The approved development (2022 consent) is a consolidated site which comprises the properties at 30 and 30A Leicester Avenue, Strathfield, being Lots 1 and 2 DP 1030696, and 32 Leicester Avenue, Strathfield, being Lot 1 DP 926812, and 34 Leicester Avenue, Strathfield, being Lot 1 DP 294827.

The property at 36 Leicester Avenue

The property at 36 Leicester Avenue is located to the north of 34 Leicester Avenue and is the extension to the east from Hilts Road. This property is shown as land required for acquisition under the City of Canada Bay Local Infrastructure Contributions Plan (Ex 1 Tab 10, p 433).
It is to be noted that the 2022 consent approved a future access road over part of this property for access to the approved development (2022 consent).

The 2020 Planning Proposal

In November 2020 the Council prepared a Planning Proposal (2020 PP) to increase the maximum height of building development standard in the Strathfield Triangle from 17m to 25m.
The 2020 PP also proposed an increase to the FSR incentives to encourage the construction of infrastructure in the Strathfield Triangle. The delivery of infrastructure would have resulted in an increase in the FSR of 1:1 taking the gross floor area (GFA) from 1:4.
On 3 March 2022 the Department of Planning, by letter, requested the Council withdraw the 2020 PP. The letter stated that the proposed height and density controls in the 2020 PP varied considerably to the recommendations in the Parramatta Road Corridor Urban Transformation Strategy (PRCUTS).
The 2020 PP was withdrawn by the Council by letter dated 19 May 2022. As at the date of the grant of the 2022 consent and the lodgement of the subject DA the 2020 PP had been withdrawn.

The Local Infrastructure Contributions Plan and the Laneway

The Local Infrastructure Contributions Plan adopted by the Council on 15 February 2022 took effect on 7 March 2022 and applies to the site.
The previous contributions plan was the Development Contributions Plan - Strathfield Triangle. It was one of three Council documents with respect to "the Strathfield Triangle" adopted on 16 April 2013, and this Development Contributions Plan took effect on 30 May 2014. The other two documents were the STDCP and the Strathfield Triangle Public Domain Plan.
For present purposes, the only relevant difference between the two Contribution Plans are those provisions referred to in the applicant's cl 4.6 written requests at Ex H pp 7-8 and Ex 6 at pars 19 and 20.
The Council's current Local Infrastructure Contributions Plan shows a laneway parallel to the west of Leicester Avenue - described as "Land required for Dedication 9.5 m wide", and required for dedication in lieu of development contributions (Ex 1 Tab 10 p 434). This area is shown in precisely the same terms and on the same map in the previous City of Canada Bay Development Contributions Plan - Strathfield Triangle, which, like the STDCP, commenced on 30 May 2014. However, the applicant's planner, Ms Francis, believes that the 2022 Contributions Plan was adopted for the purpose of the now withdrawn 2020 PP (Ex H) - I will deal with this later and shortly.
The applicant's consolidated site at 30-34 Leicester Avenue has an area of 1,738.8m² and is zoned R4 High Density Residential under the LEP. The laneway is located within the rear setback area.
No height limit has been adopted for that rear setback area as shown on the Height of Buildings Map. The Council submits that the effect of that height planning control is that the rear setback of the site does not have any development potential (in terms of an allocation of GFA) other than for the purpose of providing rear lane access to the site along Leicester Avenue.
The 2022 consent leaves this area of the laneway in the rear setback unencumbered and available for development as a laneway consistent with the STDCP, (and the Strathfield Triangle Public Domain Plan which provides engineering specification for the laneway (Ex 1 Tab 9 p 335), and available for acquisition by the Council in the future. Should the dedication be made then the development area of the site at 32-34 Leicester Avenue would be reduced from 1,738.8m2 down to 1,333m2. The development plans also show the proposed building would be set back from the northern boundary by 4m. Thus, the developable site area is reduced by a further 366.7m2. A reduction in developable area which the applicant submits is a significant proportion of the development site.

The Council has abandoned the acquisition of the laneway by dedication of land in lieu of contributions

The new rear laneway is intended to provide access for all properties fronting Leicester Avenue and is said to be an identified improvement to the public domain in the STDCP and the Contributions Plan.
Under the Contributions Plan, the laneway is to be acquired by dedication in lieu of development contributions. This contrasts with the land identified on Figure 2 in the Contributions Plan which is land identified for compulsory acquisition and identified for compulsory acquisition under the LEP, it being so identified on the Land Reservation Acquisition Map referred to in the LEP. It is also the subject of cl 5.1A of the LEP.
The 2022 consent imposed condition 27, requiring payment of s7.11 development contributions of $660,000 and did not require any dedication of any part of the land in lieu of contributions pursuant to the Contributions Plan. The Council wanted the monetary contributions and not a dedication of land in lieu thereof.
In the draft without prejudice conditions in the present proceedings, the Council adopted the same approach. In draft condition 27, the Council seeks development contributions pursuant to s 7.11 of the EPA Act of $1,060,000 and does not seek the dedication of that part of the land identified for the laneway in lieu of contributions. Should either the development under the 2022 consent, or the subject development be constructed the applicant maintains that there would be no opportunity for the Council to acquire that part of the applicant's land identified for the laneway under the Contributions Plan, other than by purchase or by compulsory acquisition.
The applicant submits in these circumstances it can be inferred that the Council has abandoned the proposed acquisition of land by means of dedication in lieu of contributions. It is more than 11 years since the original Contributions Plan was adopted and almost 10 years since it took effect. In his evidence, the Council's planner, Mr Giaprakas, stated: 1. that he did not believe that there had been any dedication of any land for the purposes of the laneway: Tcpt, 17 April 2024, p 81(14); and 2. he accepted that one of the difficulties in the development of the amalgamated sites in the area was the fact that the land required to be dedicated was much more valuable than the contributions to be offset against it: Tcpt, 17 April 2024, p 80(40-45).
The applicant submits that Mr Giaprakas' evidence assists in explaining why the Council has done nothing in 10 years to take steps to obtain the land for and construct the laneway on it. Noting, that the latest independent market valuation obtained by the applicant (the Omaya Group) from Urbis has assessed the market value of the land to be dedicated at $3,550,000, and the contributions payable of $548,603 (Ex M and AWS).
The evidence is that on 1 February 2021 the Omaya Group wrote to the General Manager of the Council in relation to an earlier proposed development application for the site. The letter specifically raised the issue of dedication of part of the land intended for the laneway in lieu of contributions pursuant to the Contributions Plan. The letter stated that the Omaya Group had received valuation advice that the value of the land identified for contribution was $3,850,000 which was $3,301,397 more than the contributions which would have been payable under the Contributions Plan. Under the Contributions Plan, as it then was, the Council would have had to pay the difference to the Omaya Group. The Omaya Group offered to enter into a voluntary planning agreement which would involve the removal of the payment and "deviating slightly from the current control". There is no evidence that there was any response by the Council to this letter. From the bar table, the applicant asserted that there was none. The Council certainly did not suggest there was any response.
On 18 March 2021, the Omaya Group again wrote to the General Manager of the Council, but this time after the lodgement of 2022 DA. Again, this letter referred to the difference in value between the land to be dedicated under the Contributions Plan and the contributions that would otherwise be payable. The letter invited the Council to engage with the Omaya Group. Amongst other things, it sought to discuss "[t]he timing and [obligation] of [the] Leicester Lane Works given that the proposal requires access from within". The Council did not take up this offer to meet. Again, there appears to be no response to the letter. The Council does not assert that there was.
A year later, the Council and the applicant reached agreement about the 2022 consent at a s34 conference and development consent was granted by the Court which did not impose a condition requiring dedication of land in lieu of contributions. A condition of consent was the payment of $660,000 in contributions pursuant to the Contributions Plan.
The applicant submits that the Council clearly made an election not to impose a condition requiring dedication in lieu and instead imposed a condition requiring the payment of the contributions. In doing so, the Council abandoned that part of the Contributions Plan concerning the laneway, certainly insofar as it related to the subject land.
As the applicant explains in its written submissions, on 27 October 2023, its solicitors wrote again to the solicitors for the Council about this matter. In that letter: 1. it made an offer to sell the laneway part of the subject land to the Council; and 2. it referred to the Council's previous election to seek contributions rather than dedication of land in lieu of contributions and asserted that, in the circumstances, the Council had abandoned that part of the 2013 and 2022 Contributions Plan requiring the dedication of the laneway land in lieu of contributions; and 3. the letter stated that a failure to respond to the letter would provide further confirmation that the Council had abandoned any intention of acquiring the land to provide laneway access across the applicant's land.
The applicant submits that the solicitors for the Council never replied. Mr Hale, senior counsel for the applicant, called for any letter in response to his client's letter of 27 October 2023 at the hearing. There was no response to the call. In the light of the above the applicant submits that the Council's failure to respond further confirms its abandonment.

The weight to be given to STDCP and the Contributions Plan

Section 4.15(1)(a)(iii) of the EPA Act requires the consent authority to take into consideration the STDCP. As stated, clause 3.6 of the STDCP and Map 5 at Ex 1 at pp 264-265 refer to the new laneway. Clause 1.6 at Ex 1 p 252 provides that the STDCP should be read in conjunction with the Contributions Plan.
Clause 3.6 of the STDCP Control C1 (Ex 1 p 264) provides: "Access to sites fronting Leicester Avenue should be provided from the rear by the creation of a new laneway as shown in the Map 5…."
Control C2 provides that: "The laneway will be provided by Council as a public laneway for pedestrians and vehicles..."
When the STDCP is read in conjunction with the Contributions Plan, the applicant submits that it is clear how the Council was to provide the public laneway. At Ex 1 p 434 of the current Contributions Plan, the page is headed: "Land required for dedication in lieu of development contributions". The Contributions Plan then states: "The following map outlines those lots required for dedication in lieu of development contributions: • Laneway construction parallel to Leicester Avenue; and • Immediately following is Map 3 which is entitled "Strathfield Triangle land Required for Dedication in lieu of development contributions." The map has a legend which identifies the laneway in yellow as "Land required for Dedication 3m wide.".
On that basis, the laneway referred to in C1 and C2 of clause 3.6 of the STDCP will be provided by the Council requiring dedication of land in lieu of contributions.
Given that the Council has elected not to impose a condition requiring dedication in relation to the subject property, the applicant submits that there is now no established means of the laneway connecting to Hilts Road. Therefore, the prospect of the laneway being constructed as proposed under the STDCP and Contributions Plan has been significantly diminished (Ms Francis (the applicant's planner) at Tcpt, 17 April 2024, p 90(10)).
Therefore, as far as the subject land is concerned, the applicant submits that the STDCP can have no weight or indeed relevance. The only means by which the Council could acquire the laneway land on the subject property was by the imposition of a dedication condition in lieu of contributions. Having elected not to do so, there is no alternative means of the Council acquiring that strip of land other than by negotiation. The Council has not sought to do this and has shown no interest in the Omaya Group's suggestion that the Council purchase the land.
The whole of the subject land, including the proposed future laneway, is zoned R4 High Density Residential. The applicant rejects the Council's claim that there is a limit on development on the laneway as, for example, applies the cl 5.1A of the LEP. Therefore, it is not open to the Council or the Court to refuse, sterilise or restrict development on the proposed laneway on the subject land on the basis that the Council might, at some future time, be able to acquire that strip of land by negotiation or compulsory acquisition. The provisions in the STDCP and the Contributions Plan, could not of themselves be a reason why the applicant could not obtain development consent for a development on the subject land which provides for the erection of a building over the laneway.
That said, the applicant contends the proposed development will preserve the opportunity for the land to be used as a laneway if at some time in the future the Council decided to acquire the land to be included in the laneway and thereby facilitating the future development to the south.
Under the proposed development, the laneway area will be excavated and two storeys of basement carparking erected beneath the laneway land. Yet, the applicant proposes the imposition of the following operational conditions to provide for the creation of the laneway as a stratum lot thereby ensuring its availability to the properties to the south by a right of way or as a public road should the Council choose to acquire the stratum. "1) Prior to the issue of the final Occupation Certificate, the Applicant is to construct a laneway at the rear of 30, 32 & 34 Leicester Avenue Strathfield ("Leicester Lane"). Leicester Lane is identified in the approved Architectural Plan DA-1100, Ground Floor Plan, Issue G, as being 9.5m x 42.75m. Leicester Lane is to be constructed in accordance with the Council's specifications pursuant to the Strathfield Triangle Public Domain Plan, Effective Date 30 May 2014. 2) Prior to the issue of the final Occupation Certificate, the Applicant is to create an individual Stratum Lot for the area known as Leicester Lane, as part of the registered Stratum Plan for the development. This Stratum Lot is to have an area encompassing Leicester Lane, (9.5m x 42,75m as indicated in the approved Architectural Plan DA-1100, Ground Floor Plan, Issue G), and to be limited to a depth from the bottom of the bitumen surface to a height of RL 20.2." (AWS 22 May 2024 at par 44(1) and (2))

The PRCUTS

The PRCUTS covers the Strathfield Triangle including the site. Under the PRCUTS the site has an FSR of 1:4 and height limit of 17m.
The LEP adopted the maximum height of buildings standard consistent with the PRCUTS but did not adopt the maximum FSR development standards. As a result, the Council submits that density is controlled by building envelope controls.
Map 3 below shows those controls in the plan including front, rear and side setbacks at ground level and at upper storeys. Figure 1 Map 3 from CWS p 6
Based on the Study, the Council contends that the rear setback area of the site does not have any development potential for GFA - other than providing rear lane access to the sites along Leicester Avenue.

The breach of the height standard (cl 4.3)

Clause 4.3 of the LPE provides as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces, (b) to protect the amenity of residential accommodation, neighbouring properties and public spaces in terms of - (i) visual and acoustic privacy, and (ii) solar access and view sharing, (c) to establish a transition in scale between medium and high density centres and adjoining lower density and open space zones to protect local amenity, (d) to ensure that buildings respond to the natural topography of the area. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (3) Despite subclause (2), the maximum height for a building on an internal lot in Zone R1 General Residential, Zone R2 Low Density Residential or Zone R3 Medium Density Residential is 5.4m. Figure 2 NSW Planning Portal Spatial Viewer - Ex 4 Tab 2 (CWS p 11)
As shown on the Height of Buildings Map, the maximum building height for the site is 17m under cl 4.3 of the LEP.
The 2022 consent approved a residential flat building with a maximum height of 17.561m.
The LEP provides, by cl 4.6, exceptions to that development standard however, the facultative power in cl 4.6(2) is restricted by cl 4.6(3) and (4) which provide as follows: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained.
In addressing the 9.7m or 57% variation of the height standard, the written request (Ex H) relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) to demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case. It seeks to demonstrate that the development achieves the objectives of the height standard irrespective of the building's numerical non-compliance. To that end, the written request addresses each of the objectives of the clause in turn.

Objective (a) - to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces

At pp 5-10, the request refers to the fact that the LEP establishes height limits on Leicester Avenue. It commences with a 35m height limit to the north on the corner of Parramatta Road, then drops to 25m immediately north of the site and relevantly to 17m on the subject site and the adjacent sites to the south. The height of buildings then increases to 25m, 35m, and 59m toward the corner of Cooper Street. The request then records at p 5 that "This is the desired future character of the area as envisaged by the current LEP".
However, in terms of "…compatibility with the height, bulk and scale of the desired future character of the locality" (objective (a) of the development standard), the request references the desired future character of the Strathfield Triangle contained in the withdrawn 2020 PP as indicative of the desired future character for the Precinct rather than the LEP (Ex H pp 6-8). The request frames it this way " Perhaps the best source of the indicative desired future character for the Precinct is the Strathfield Triangle PP …Within this PP, the proposed height is consistent with the max height identified for the site in the Strathfield Triangle" (p 6).
The request further states that the development is consistent with the 25m height of buildings erected and permitted to the immediate north of the site, and the proposed park which separates the site from that at 38 Leicester Avenue.
While acknowledging that the 2020 PP has been withdrawn by the Council, the written request reasons that this was only due to the request for further information from the Department and as such, can be resubmitted. It states: "There is no suggestion from the Department that the height of building on the subject site were of concern going from 17m to 25m" (p 7). It also submits that the height variation allows the development to deliver the rear lane anticipated by the current and future controls of the Council.
The written request refers to the previous (repealed) Contributions Plan which made provision for the Council to pay to the developer the difference between the value of the land dedicated in lieu of contributions and the contributions required to be paid under the Plan if the land value exceeded the amount of the contributions. However, the current Contributions Plan does not make the same offer. On that basis, it is submitted that the withdrawn 2020 PP and the Interim Contributions Plan went hand in hand. Therefore, with the withdrawal of the 2020 PP there is a disconnect and the 17m height standard for the site is not feasible. Therefore, the desired future character is not necessarily dictated in the current controls.
The written request states that the variation of the control proposed by this DA allows for "the delivery, and the facilitation of the Council's desired future plans for this part of the Strathfield Triangle in terms of bulk and scale of buildings, public domain in terms of the rear laneway and pedestrian access to the new park in Chapman Street - all of which are a positive contribution to the future character, public domain and public spaces of the area" (Ex H p 9). The creation of the lane, at the applicant's expense, adjacent to their site would facilitate pedestrian access to the desired and proposed park as shown in the PP to the east of Chapman Street since their site connects with the land to be created as a park. This access is a requirement of the bonus FSR to be attributed to the site under the proposed PP wherein the FSR of 2.4:1 is available if pedestrian connectivity is provided to the new park area (p 8).
Accepting that the phrase "desired future character of the locality" in objective (a) of the standard is not defined - other than the Height of Buildings Map, it is open to the applicant to consider the development that has been approved and constructed in the area in order to determine the desired future character: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD) at [54].
However, as the Council submits, the written request is silent in this regard. There is no demonstrated consideration of what is being referred to. No satisfactory identification of the locality considered in the written request. No satisfactory analysis of the surrounding built environment to demonstrate evidence of non-conforming buildings as indicating a particular desired future character as was the case in SJD at [54]. At best, the request includes a partial streetscape elevation which shows no evidence of significant deviation from the Height map.
In the absence of satisfactory evidence of buildings constructed in the locality which have not adhered to the prescribed height controls, there is no demonstration of a change to the desired future character of the locality - as evidenced by the Height of Buildings Map. Nor is there any evidence to say that the Council has abandoned the standard.
In those circumstances, I cannot accept the assertion that the desired future character as envisaged by the LEP for the locality is anything other than that the buildings to the north of the site will be higher than those on the subject site and that the desired future character is stepped down in height across the laneway between no's 38 Leicester Avenue and the site. On that basis, the variation proposed by this DA would be inconsistent with the desired future character of the locality and the streetscape as contemplated by the height controls in cl 4.3 objective (a).
The evidence is that the Council withdrew the 2020 PP on 19 May 2022 (Ex 4 pp 154-156) and, in that circumstance Ms Francis' reliance on the 2020 PP as evidence of a change to the desired future character of the locality is not sustainable. Additionally, I do not accept that in requesting further information the Department had not expressed a concern about the height of building increasing from 17m to 25m for the site. Rather, as the Council identified, the letter from the Department stated that the increase in height and density above the existing controls and the PRCUT as proposed in the 2020 PP "…had the potential to create amenity impacts to surrounding residents particularly at the interface to the low-density area" (Ex 4 Tab 6). There is no satisfactory evidence that the Department supported the 2020 PP height increase, however, as I said it is withdrawn and s 4.15(1)(a)(ii) of the EPA Act is not engaged.
Nor do I accept on the evidence before me that the proposal will deliver the laneway anticipated by the controls. Instead, the proposal encumbers the laneway land by building a basement under the laneway area to the applicant's benefit and creates a stratum subdivision of the land of the laneway without the creation of any rights over that land to anyone other than the applicant.
Under the existing consent, the laneway is unencumbered and available for acquisition by the Council or by s88K Conveyancing Act 1919 application to the Supreme Court. As the Council submits, the proposed building under the laneway will inevitably create further issues for the Council for future acquisition and use by properties to the south. It will complicate dedication of the land (only the stratum) and will mean that the development of the properties to the south would not proceed until the proposed basement had been constructed and the laneway built and arrangements with the applicant for access agreed.
In providing correspondence between the company and the Council the applicant puts forward an argument which - summarised - suggests Council has over time abandoned the option initially held to reserve land fronting Leicester Avenue that might be developed to provide lane access to the rear of the abutting properties via dedication in lieu of contribution. Yet, abandonment of this opportunity remains at odds with the Council's evidence in this case about the controls and the detail, identified in Fig 2, which describes its acquisition under the LEP - a detail further elaborated on in the Lands Acquisitions Map, under the LEP and subject to cl 5.1A of that Plan.
The fact that the Council has not pursued dedication or acquisition of the laneway land of the site for this proposal and has included a contribution condition in its draft conditions of consent filed in the appeal does not support a case for abandonment of the Council's controls about the laneway. Nor does the delivery of the laneway as proposed achieve the objective of "positively contribute to the streetscape and public spaces".
In short, none of the reasons offered in the written request supports a finding that the proposal achieves objective (a).

Objective (b) - to protect the amenity of residential accommodation, neighbouring properties and public spaces in terms of -

(ii) solar access and view sharing

The written request records that the redevelopment of the building "only exceeds the height limit of 17m by 2.4m on the southern boundary" and as such, will have no detrimental impact on the visual privacy and acoustic amenity of the neighbouring property.
The request records that the development to the south is an existing cottage, yet to be redeveloped to the 17m height limit under the LEP or 28m as envisaged by the 2020 PP. It is submitted that the proposed development with incorporate a blank wall on this southern elevation, modulated in terms of building materials of brick and render, and thereby present as visually appealing to the cottage to the south.
In respect of overshadowing, the request states that the IDG Architect diagrams demonstrate that the increase in height does not result in any dwelling receiving less than 3 hours of sun during midwinter to the living rooms and POS. Therefore, the proposed variation will protect the amenity of the residential accommodation, neighbouring properties and public spaces in terms of solar access and view sharing.
However, as the Council submits, there is no adequate analysis in Ex H to demonstrate that solar access to neighbouring properties and public spaces is protected as required by the objective. Reference is made in the request to compliance with the DCP solar control to demonstrate that the amenity of neighbouring properties is protected. However, the provisions of the LEP cannot be interpreted by reference to the DCP - it is not a requirement to minimise overshadowing or to comply with the DCP control but rather protect the amenity of residential accommodation, neighbouring properties, and public spaces in terms of visual and acoustic and privacy and solar access and view sharing.
Shadow diagrams in Annexure G to Ex 6 show a comparison between the existing consent which is generally compliant and the proposed development which is 9.7m over the height limit. The additional height is significantly impacting on the solar access to existing and future development across Leicester Avenue between 2:00 PM and 3:00 PM on 21 June. Based on these diagrams, the amenity of the residential development across Leicester Avenue in terms of solar access is not protected by the proposal. The existing consent did protect solar access up until 2:45 PM with a far lesser impact between 2:45 PM and 3:00 PM. The additional storeys, the subject of this application, in contravention of the height standard clearly do not achieve objective (b) of the standard on the basis of the reasoning in the written request.

Objective (c) - to establish a transition in scale between medium and high-density centres and adjoining lower density and open space zones to protect local amenity

The written request seeks to justify the breach of the height on the basis that it establishes a transition in scale between medium and high-density centres and adjoining low density and open space zones to protect local amenity (Ex H p 10).
The submission is that the amended height results in a development that transitions from the 35m height of the building to the north to 25m being the building height at 38 Leicester Avenue. As such, it is argued that the development as proposed matches the height of building on either side of the proposed RE1 park and allows for a transition from this point south. This then allows for a transition in height east/west the same as the that identified in Map 2.1 for land on the northern side of the proposed park that is 25m to 17m east/west. A transition, the written request records, which is anticipated in the 2020 PP where the land to the west of the site is to retain the 17m height limit.
For the reasons stated earlier, I do not accept reliance on the 2020 PP (now withdrawn), as supporting the argument that it is unreasonable or unnecessary to comply with the height standard in this case.
That said, the critical words in objective (c), as the Council suggests, are "to protect local amenity". The written request asserts that the transition in scale and the relative height between medium and high-density centres and adjoining lower density and open space zones is to be protected yet there is no reference in the written request to the "local amenity" in its consideration of objective (c).
And, as the Council identifies (at pars 61-63 of CWS), the Facade Comparison Plan in Ex 6 Annexure G shows the four facades of the proposal and the four facades of the existing consent. The northern elevation adjoins the RE1 public recreation zone which is to form a pedestrian access way and pocket park between Leicester Avenue and Hilts Road. The current height control provides for a step down in bulk on the site on the southern side of this open space zone. The northern elevation shows that the proposal results in a significant increase in bulk to that access way where there was supposed to be a transition that steps down in height on the southern side of the RE1 public open space. As such, there is no satisfactory demonstration in the cl 4.6 written request to explain how the proposed change in height transition achieves objective (c) which seeks to protect local amenity. The eastern elevation of the proposed development - which faces the lower density area zoned land across Leicester Avenue also shows a significant increase in bulk which the Council argues will be visible from this lower density area.
For the reasons outlined above, I accept, as the Council submits, that the proposed increase in height and bulk in the development "...erodes the transition contemplated by the height control from the higher density subject site to the lower density R3 land" (CWS at par 63).
Again, nothing in the written request supports a finding that the proposal achieves objective (c).

Sufficient environmental planning grounds

The cl 4.6 written request identifies the following sufficient environmental planning grounds in justification for the height variation: "1. Achieving the 'compatibility' 'transition' and 'responding to topography' objectives of the height standard (obj (a) (c) and (d)) 2. Achieving the Councils desired future character in relation to height as stated in the PP in the Strathfield Triangle dated November 2020 3. Achieving the delivery and facilitation of the rear land access to future development along Leicester Ave; the absence of which would prevent the delivery of that development."
I do not accept any of the grounds identified in the request demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard for height.
There must be some identifiable grounds to justify the breach, not simply to promote the benefits of carrying out the development as a whole (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [24]). In my assessment, the written request simply promotes the benefits of carrying out the proposed altered building. It does not provide the laneway anticipated by the Council's controls and the 2020 PP is irrelevant.
In providing correspondence between the company and the Council, the applicant puts forward an argument which - summarised - suggests Council has over time abandoned the option initially held to reserve land fronting Leicester Avenue that might be developed to provide lane access to the rear of the abutting properties. Yet, abandonment of this opportunity remains at odds with the Council's evidence in this case about the controls and the detail, identified in Fig 2, which describes its acquisition under the LEP - a detail further elaborated on in the Lands Acquisitions Map, under the LEP and subject to cl 5.1A of that Plan.
A case for abandonment of the Council's controls in respect of the laneway acquisition has not been made out.

The breach of the apartment mix standard (cl 6.11)

The 2022 consent complies with unit mix requirements under cl 6.11 of the LEP, following an amendment to that development application.
Clause 6.11 of LEP provides: 6.11 Mix of dwelling sizes in residential flat buildings and mixed use development (1) The objectives of this clause are as follows - (a) to ensure the provision of a mix of dwelling types in residential flat buildings and provide housing choice for different demographics, living needs and household budgets, (b) to promote development that accommodates a range of household sizes. (2) This clause applies to development for the following purposes that results in at least 10 dwellings - (a) residential flat buildings, (b) mixed use development that includes shop top housing. (3) Development consent must not be granted to development to which this clause applies unless - (a) at least 20% of the dwellings, to the nearest whole number of dwellings, in the development will be studio or 1 bedroom dwellings, and (b) at least 20% of the dwellings, to the nearest whole number of dwellings, in the development will have at least 3 bedrooms.
The proposal does not provide the required mix and size of dwelling types mandated by cl 6.11 including at least 20% of the total dwellings with at least 3 bedrooms. Of the 53 residential apartments proposed the mix comprises; 13 x 1-bedroom apartments; 38 x 2-bedroom apartments and 2 x 3-bedroom apartment. This means there is an oversupply of 2-bedroom apartments representing 71.6% of the total number of apartments, and an undersupply of 3-bedroom apartments being only 3.77% of the total number of apartments or a shortfall of 10.5 3-bedroom apartments.
The existing consent provided seven 3-bedroom apartments which have been reduced in the proposal to only two 3-bedroom apartments when the overall number of apartments have increased from 35 to 53.

Unreasonable and unnecessary

The applicant's cl 4.6 written request (Ex G) seeks to justify the numerical non-compliance with the clause by demonstrating that compliance is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the control.
In addressing that compliance is unreasonable and unnecessary, the request relies on the first test under Wehbe to demonstrate that the development achieves the objectives of the apartment mix control notwithstanding non-compliance with the numerical standard.
In making that argument, the request refers to a demographic and economic analysis of the Strathfield Triangle, by Urbis dated August 2022 (Urbis report) at Annexure A, and a letter from a real estate agent at Annexure B.
The Council contends that the development is not consistent with either objective (a) or (b) of cl 6.11 of LEP.

Objective (a) - to ensure the provision of a mix of dwelling types in residential flat buildings and provide housing choice for different demographics, living needs and household budgets

The applicant asserts that the "development standard applies LGA wide and does not have regard to differences in demand, demographics, economics and affordability specific to locations within the LGA and thus its objective to provide choice to different demographics, living needs and household budgets is, in and of itself, flawed".
Regardless, the written request asserts that the proposed development does provide a mix of dwelling types, and this provides choice.
The housing choice being a choice based on their individual needs and their ability to afford the relevant dwelling type. Referring to the Urbis report and the letter from the local agent, the written request then identifies the specific demographic and housing demands of the Strathfield Triangle to argue that the demand in the area is for smaller and more affordable sized units and it is submitted that the proposal provides such a dwelling mix to meet the demographic, living and household budgets of the Strathfield Triangle area. As the Strathfield Triangle area is where this standard is being applied, the written request asserts that it is reasonable to consider the specific circumstances of this area when considering whether the dwelling mix satisfies the objectives of the standard. In that way the objective is being achieved, the numerical control is not because to do so, in the circumstances of this case, would thwart the objective of the standard.
In response, the Council submits on the evidence of Mr Giaprakas that the Court should not consider demand in determining whether a variation to the mix should be accepted (Tcpt, 17 April 2024, p 125(46)). To do so will thwart the achievement of objective (a) because it will limit housing choice and the range of household sizes to 1- and 2-bedroom units rather than 1-, 2- and 3-bedroom units.
As the Council submits, Ms Francis agreed in cross-examination that: 1. There is nothing in the Urbis report that actually tells how many 1-bedroom, 2-bedroom or 3-bedroom units currently exist in the Strathfield Triangle. 2. The Urbis report relies upon the 2016 ABS. 3. The way the Urbis report reads it seems to say that there is a significant level of disadvantage in the Strathfield Triangle area. 4. The Urbis report relies upon that demographic (significant disadvantage) as being the persons who need to live there. So that is the demand. 5. Objective (a) of cl 6.11 is not just about household budgets. 6. All the Urbis report does is consider the budgets and households who already live in the Strathfield Triangle. (Tcpt, 17 April 2024, pp 127(5)-128(21))
Based on those concessions, the Council submits that the Urbis report simply analysed the existing demographics within the Strathfield Triangle to conclude that the dominant demographic is of socially disadvantaged persons who are living in 1-bedroom or 2-bedroom dwellings which they struggle to afford. It then relies upon those demographics to support an argument that the existing demographics should be perpetuated through future development because that is where the demand lies.
This approach is directly contrary to the objectives which are to provide a choice for different demographics, living needs and household budgets and to promote development that accommodates a range of household sizes. If the approach advocated by Ms Francis is followed, then housing choice and the range of household sizes will be limited to the existing demographics and their living needs and household budgets which is 1- and 2-bedroom apartments. This is plainly contrary to the objectives which are to provide housing choice for different demographics, living needs and household budgets and a range of household sizes.
Ms Francis also relies upon the undated letter from Strathfield Partners Real Estate Agent at Appendix B of Ex G to support her argument in the written request that an appropriate choice for the demographics is provided by this development. However, as the Council submits, the letter can be given little weight for the following reasons: "(a) The letter is undated; (b) The letter is not in the form of expert evidence; (c) The letter is full of assertions and conclusions and does not provide any actual data to support those assertions and conclusions. (d) The letter does not identify how many 1 bedroom, 2 bedroom or 3 bedroom apartments there are in the Triangle, nor provide any details of attempts by the author to sell or lease 3 bedroom apartments. (e) The assertions in the letter in relation to supply and demand for 3 bedroom units is inconsistent with the DAEA and internally inconsistent. Put simply, the agent asserts that there is no demand for 3 bedroom units in the Triangle and because of affordability issues they are left vacant for a long period of time. The DAEA in Section 05 on page 9 says that the median price of 3 bedroom apartments within the LGA have grown at a significantly higher rate than 1 and 2 bedroom apartments. The fact the price of a 3 bedroom unit is going up at a higher rate than 1 and 2 bedroom units can only indicate that there is either an undersupply of 3 bedroom units or a growing demand for 3 bedroom units. This does not sit comfortably with the agent's assertion that 3 bedroom units are left vacant for a long period of time because of affordability issues." (CWS at par 98)
For the reasons stated by the Council, as summarised, I accept that the clear purpose of objective (a) requiring a mix of dwelling types is to provide housing choice for different demographics, living needs and household budgets and to promote development that accommodates a range of household sizes. The proposal does not achieve that objective (a).

Objective (b) - to promote development that accommodates a range of household sizes

The request asserts that the proposed development provides a range of unit sizes and mix of bedrooms within the unit that satisfies objective (b) regardless of the variation sought.
As the proposed development will reduce the range of household sizes - (the number of 3-bedroom apartments) it cannot be said that objective (b) is achieved by the development. It restricts the range of household sizes accommodated in the development.

Finding - Unreasonable and unnecessary

For the reasons set out above, the development (being the alterations and additions which reduces compliance with the requisite number of 3-bedroom apartments) is inconsistent with objectives (a) or (b) of cl 6.11. As Mr Giaprakas states in the joint report (Ex 6 p 15), the extent of variation of 3-bedroom dwellings is significant (81.13%) and would not achieve the objectives of the standard to ensure the provision of a mix of dwelling types in residential flat buildings and provide housing choice for different demographics, living needs and household budgets, and to promote development that accommodates a range of household sizes.
I prefer his evidence to that of the applicant on this issue and find that it cannot be argued on the first test of Wehbe that the contravention of the standard is unreasonable or unnecessary in the circumstances of this case because it does not achieve the objectives of the standard.

Sufficient environmental planning grounds

Ex G puts forward three environmental planning grounds to justify contravention of the development standard.
Ground 1 addresses objective 1(b) and maintains - notwithstanding the identified breach - the development still provides for a range of household sizes. Council submits, in contradiction, the argument is "tantamount to saying that it is necessary to breach the standard to achieve the objective". It further argues, "This is not the case. It does not justify contravention"; it maintains that while the proposal may offer a range of household sizes, it does so "at the expense of three-bedroom households".
Ground 2 addresses objective (1)(a) - the provision of housing choice - both generally and for the Strathfield Triangle Precinct - and argues a broad context justification. Council's rejoinder emphasises the proposal's direct opposition to the purpose of the objective. It not only fails to improve the availability of three-bedroom apartments, it perpetuates that already limited availability.
Ground 3 boldly asserts compliance with the standard would thwart the development standard in cl 6.11 of the LEP, repeating the claim voiced in Ground 2, to which the Council has replied as addressed earlier.

Finding - Sufficient environmental planning grounds

I am not satisfied that Ex G has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). Again, the applicant simply promotes the proposal (Initial Action at [24]).

Conclusion

For the reasons stated, I find that the contravention of the development standards of height and apartment mix are significant, and the jurisdictional requirements of cl 4.6(4)(a)(i) in each case have not been discharged by the applicant. It follows that in failing to achieve the objectives of the standard the development cannot be described as in the public interest as required by cl 4.6(4)(a)(ii)) of the LEP.
Accordingly, the Court orders: 1. The appeal is dismissed. 2. Development application no. DA 2023/0064 for alterations and additions to the existing development consent DA2021/0089, comprising amendments to the unit mix, and addition of three levels to result in an 8-storey building plus two basement parking levels comprising 53 residential apartments at 30-34 Leicester Avenue, Strathfield is determined by refusal of consent. 3. The exhibits are returned except for A, B, G, H, L, 2 and 6. …………………. S Dixon Senior Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2024

Introduction

On 3 June 2022 the Land and Environment Court granted the applicant, Hyside 34 Leicester Pty Ltd, a deferred commencement development consent to demolish the existing structures and erect a five-storey residential flat building containing 35 apartments and associated basement car parking, at 30-34 Leicester Avenue, Strathfield. The 2022 consent also approved the construction of part of a private road over the adjoining property at 36 Leicester Avenue, Strathfield: Hyside 34 Leicester Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1286 (Judgment).
The Judgment records that the 2022 consent was granted following a s34 agreement, and after the making of the following amendments: "(i) A reduction in the overall height of the Proposed development from 19.53m to 17.561m; leaving only a minor 561mm breach of the Council's height standard - in the area of the lift overrun, but otherwise compliant (see Exhibit 1 Tab 5 Section A-A Plan No. DA3004 Rev D); (ii) A reduction in the number of apartments from 42 apartments to 35 apartments; and (iii) A change to the mix of apartments to now comply with Canada Bay LEP 2013 (CBLEP), which requires at least 20% of the total dwellings proposed as a studio or one bedroom dwelling and at least 20% of the total dwellings proposed with at least 3 bedroom" (Judgment at [80]).
It also states that the parties agreed that the design of the amended proposal was compatible with the desired future character of the local area, known as the Strathfield Triangle Precinct, and that the proposed development was by its bulk and scale commensurate with that envisaged by the prescribed standards and controls (Judgment at [20]).
The applicant now wants to increase the density of the approved development and the intensity on the land. To that end, the applicant has lodged a development application DA 2023/0064 (DA) for consent to make "alterations and additions" to the residential flat building approved under the 2022 consent.
The proposed development includes:

the addition of two additional storeys plus roof structures all above the prescribed maximum height;
an extension of the excavation of the basement and upper basement carparking so that the basement will be within the rear setback and under the area nominated as a rear laneway in the Development Control Plan (DCP) (Strathfield Triangle Public Domain Plan 2014 p 5);
a change in the apartment mix so that the development no longer complies with the prescribed apartment mix which required 20% x 3-bedroom apartments; and
changes to the floor plates of all approved existing levels which have altered the internal amenity of the apartments.

In seeking the grant of development consent in contravention of the height limit in cl 4.3 of the Canada Bay Local Environmental Plan 2013 (LEP) and the apartment mix development standard in cl 6.11 of the LEP the applicant relies upon two cl 4.6 written requests prepared by Gyde Consulting dated 5 December 2023 and marked Exs H and G respectively.

(2018) 236 LGERA 256

(2002) 123 LGERA 100

(2007) 156 LGERA 446

At a glance

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Judgment (23 paragraphs)

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Cases Cited (10)