Hyside Projects Subthree Pty Ltd v City of Canada Bay Council

Land and Environment Court (NSW)|2021-09-30

Judgment

COMMISSIONER: This is class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of Development Application No 2020/0247 seeking consent for the erection of a residential flat building containing 99 apartments, site preparation including demolition, excavation, landscaping and other related works (the Proposed Development) at 10-12 Chapman Street, Strathfield legally described as Lot A in DP 378136 and Lot 52 in DP 1252433 (the Site).
The new residential flat building will comprise 99 apartments (32 x 1 bedroom units, 47 x 2 bedroom units and 20 x 3 bedroom units) throughout a part 15 storey and part 9 storey building over 6 levels of basement carparking. The basement carpark which will be accessed off Cooper Street will contain spaces for residents and visitor cars plus 3 service parking spaces, storage for residents, and other ancillary uses. The Site is zoned R4 High Density Residential under the Canada Bay Local Environmental Plan 2013 (CBLEP) and forms part of the Strathfield Triangle which is a 5.5ha site bounded by Parramatta Road to the north, by Leicester Street to the east and to the south by the rail corridor pursuant to the Strathfield Triangle Development Control Plan 2013 (STDCP).
The proceedings were heard over 3 days and I had inspected the Site at the Conciliation Conference on 18 May 2021.

Does the cl 4.6 written request satisfy contravention of the building height development standard? (Contention 1)

The Court has a discretion under cl 4.6(2) of the CBLEP to grant consent to the Proposed Development even though the development would contravene the maximum building height development standard imposed by cl 4.3 of the CBLEP. Subclause 4.6(3) and (4) establish preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at 13 ('Initial Action'))
The Applicant relies on the cl 4.6 written request prepared by Mr Robert Chambers (town planner) of BBC Consultant Planners (Written Request) dated May 2021 (Ex B2, Tab 14), and the evidence of Mr Chambers in the Planning JER (Ex 6) and the Supplementary Joint Planning Expert Report (Ex 7).
Pursuant to cl 4.3 of the CBLEP, there are two maximum building height development standards which apply to the Site. The southern part of the Site is subject to a maximum building height of 31m, which permits nine storeys, and the northern part of the Site is subject to a maximum building height of 50m, which permits 15 storeys. The STDCP also has a maximum building height control in Part 3.3 at C.1, expressed in storeys. Map 2 of the STDCP provides for maximum building heights of 9 storeys and 15 storeys respectively.
The building in the northern component of the Proposed Development contains 15 storeys comprising a maximum building height of 49.86m and complies with the development standard in cl 4.3 of the CBLEP. The building in the southern part of the Site predominantly complies with the 31m maximum building height development standard but there are two non-compliances of the 31m maximum building height development standard in the southern part of the Site as follows: 1. An area of 19.35m2 of part of the taller building (less than 1% of the Site area) extends into the southern part of the Site. 1. The Applicant submits that the reason for the exceedance is one of design as it enables the taller part of the building to "turn the corner" in the dogleg in Cooper Street (see Ex B1 p 266) (Applicant submissions p 3 at [14]). 2. An extract from the Site Analysis Plan DA-0002 Issue A is reproduced below to show the extent of the encroachments of the taller northern building into the area of the southern building which is subject to the 31m maximum building height development standard. Figure 1: Architectural plan DA-002 Issue A Site Analysis Plan: illustrating 31 m building height non compliance by 15 storey building extending into 9 storey building height zone 1. The second non-compliance with the 31m maximum building height development standard is the rooftop structure on the southern part of the Site which contains a lift overrun and stairs to the communal open space on the roof at a height of 34.5m, which is above the 31m maximum building height development standard by 3.5m and has an area of approximately 63m2 which equates to 3.2% of the Site area (see Ex B1 p 280). 2. An extract of the Level 9 Drawing DA-1105 Issue A shows the location and area of the non-compliant rooftop structure on the southern part of the Proposed Development, which is reproduced below. Figure 2: Architectural plan DA-1105 Issue A: illustrating 31 m building height non-compliance by roof top structure on level 9
The town planning experts disagree as to whether the non-compliances with the 31m maximum building height development standard in cl 4.3 of the CBLEP is reasonable and appropriate, and whether the Written Request should be supported.
The Applicant submits, and I accept, that Ms Sorensen did not view the Written Request through the correct lens (written submissions p 8) and that she adopts a different test as to whether compliance with the development is unreasonable or unnecessary, as follows: 1. "The site does not contain any impediments that would make strict compliance difficult" (Ex 6 [19]); 2. "A skilful architect could just as easily design a building that is fully compliant." (Ex 6 [23]); 3. "HALE: Might we take it from that in opposing the 4.6 you do so on the basis it is not necessary; there could be a design which complied? WITNESS SORENSEN: Yes" (Transcript Day 2 p 32)
It is appropriate to consider what is required of the Court as provided by the terms of subcll 4.6(3) and (4) of the CBLEP which I reproduce as follows: 4.6 Exceptions to development standards […] (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.

Is compliance with the maximum building height development standard unreasonable or unnecessary in the circumstances of the Proposed Development?

The first question which comprises part of the consideration of the Court pursuant to cl 4.6(3)(a), and the first part of forming a state of satisfaction that the Written Request has adequately addressed the demonstration that compliance with the 31m maximum building height development standard in cl 4.3 of CBLEP is unreasonable or unnecessary in the circumstances of the case (cl 4.6(4)(a)(i)), is whether compliance with the maximum building height development standard is unreasonable or unnecessary in the circumstances of the Proposed Development.
Particular (d) in the Amended SOFAC contends that the Written Request is not well founded and does not adequately demonstrate why strict compliance is unreasonable and unnecessary in the circumstances, that is, the test in cl 4.6(3)(a) of the CBLEP. The Respondent submits at par 43 of written submissions that: "in the cl 4.6 written request (at [4.3.1]), Mr Chambers considers consistency with the objectives of the height standard when the test in hand in that part of his written request is whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (the test in cl 4.6(3)(a)). He has conflated the test in that subclause with the test in cl 4.6(4)(a)(ii) (whether the proposed development will be in the public interest because it is consistent with the objectives of the particular standard etc)."
I do not accept the Respondent's submission that Mr Chambers has conflated the test in cl 4.6(3)(a) with the public interest test in cl 4.6(4)(a)(ii). As to the first matter required by cl 4.6(3)(a) of the CBLEP, Preston CJ summarised the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827at [42]-[51] ('Wehbe') and cited by Preston CJ in Initial Action at [16].
The Written Request lists the authorities considered in its preparation and includes Initial Action and Wehbe (par [1.5] at folio 381-382). At par [6] of the Written Request (at folio 390), the Written Request lists the five ways applicants most commonly invoke to demonstrate that compliance with a development standard is unreasonable or unnecessary summarised in Wehbe. The Written Request refers to these as a 'five part test' and relies on the first and third ways an applicant might demonstrate that compliance is unreasonable or unnecessary, namely: 1. "The first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe at [42] and [43]." (Initial Action at [17]) 2. "A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Wehbe at [46]." (Initial Action at [19])
Accordingly, the consideration by Mr Chambers of the consistency of the Proposed Development with the objectives of the development standard in the Written Request is the first most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary, because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
I will now look at how the Written Request demonstrates that compliance with the development standard is unreasonable or unnecessary in accordance with the first and third way articulated above at par [22].

Does the written request establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard?

The objectives of the maximum building height development standard cl 4.3 CBLEP are quoted in the Written Request at [4.2]: 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.
The Applicant submits that the evidence does not suggest that there is any inconsistency with (b) or (d) and that the evidence of Ms Sorensen supports the evidence of Mr Chambers [4.3.1] of the Written Request that there is no inconsistency with (a) and (c).
The Written Request at [4.3.1] at folio 383-387 (Ex B2) sets out a bullet point list of 12 reasons why the Proposed Development is consistent with the objectives of the 31m maximum building height standard in cl 4.3 of the CBLEP, as a means of demonstrating that compliance with the development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding non-compliance with the standard. I reproduce the 12 reasons from the Written Request and I also include relevant submissions from the parties as follows: 1. The extent of the two non-compliances is very limited relative to the proportion of the site area that they occupy. 1. The Respondent submits at par 43 of written submissions that "Mr Chambers' first dotpoint at [4.3.1] of the cl 4.6 written request (the extent of the non-compliance is limited) is irrelevant to achieving the objectives." 1. The desired future character for the site in terms of building height is 15 storeys on the northern part and 9 storeys on the southern part, which is what is proposed. 1. Ms Sorensen agrees that the Proposed Development is compatible with the desired future character of the locality as set out in the STDCP (development standard objective (a)) (Respondent's written submissions par 47). 1. The height of the proposal, notwithstanding the request variations to the height standard, is appropriate for the conditions of the site and its context. 1. The Respondent submits in written submissions at par 44 that "The third dotpoint of Mr Chambers' par [4.3.1] of the cl 4.6 written request (that the height of the proposal is appropriate for the conditions of the site and its context) is an unexplained assertion, and is also irrelevant to consistency with the objectives of the height standard." 2. I note that reference to the "conditions of the site" could apply to objective (c) regarding transition in scale between densities in the context of the position of the building being on a corner or 'dog-leg' on Cooper Street, therefore I reject that this is an irrelevant reason. 1. The built form, bulk and scale of the proposal is appropriate and in context. 2. The built form is enhanced by having the 15 storey part of the building 'turn the corner' at the dog-leg in Cooper Street, therefore there is a design justification for (and design merit) in the non-compliance. 1. The Respondent submits at par 45-46 of written submissions that "45 The fifth dotpoint of Mr Chambers' par [4.3.1] asserts that there is a design justification for the non-compliance, but even if so, this is also irrelevant to consistency with the objectives of the height standard. The Court would prefer Ms Sorensen's evidence that each non-compliance is a design choice, not a "design justification", and would reject the Applicant's senior counsel's submission on the first day of the hearing that "The only thing the development gets out of [the non-compliance] is design quality". 46 There is no need in any event to "deal with" the "dog-leg corner condition of Cooper Street" (fifth and eighth dotpoints of Mr Chambers' [4.3.1]). The Height of Buildings Map already does that. For this reason, while the bend in Cooper Street is characterised as a "corner" for the purposes of 5.2.2 of the STDCP, this does not detract from the quite deliberate provision in CBLEP 2013 for a 50.00 m corner building north of the dog-leg, and a 31.00 m corner building to the south. Likewise, the Court will not see in the STDCP's Map 2 (showing Maximum Building Heights) or Map 6 (showing Assumed Building Footprint) anything that suggests that the 50.00 m (15 Storeys) building should wrap around the bend in Cooper Street. The evidence is all the other way." 1. It is relevant to note that the Map 6 of the STDCP referred to by the Respondent which provides an 'Assumed Building Footprint' presupposes the envisioned amalgamation, whereas the STDCP does not contemplate any alternative building footprint in the event that the envisioned amalgamation is not achieved such as in the circumstances of this case. 1. The height of the proposal is compatible with the heights of nearby buildings, existing and proposed; 2. The proposal responds to both the existing and desired future context and contributes to the character of the Strathfield Triangle, and the streetscape along the eastern side of Cooper Street. 3. The form, massing, and design of the proposal ensures that the new building will make a positive contribution to the area with a high quality design presentation, in particular, by ensuring the design deals with the dog-leg corner condition of Cooper Street, and by ensuring that the roof top open space is accessible by lift and stairs concealed in a well-designed rooftop structure that also contains an accessible WC. 4. The amenity of the proposal, neighbouring properties and public spaces will be protected. 5. The non-compliances will have no adverse privacy impacts; 6. The non-compliances will have no adverse overshadowing impacts; and 7. The proposal, with the non-compliances, exhibits high quality design and will have no adverse visual impact.
The applicant submits in writing that the evidence does not suggest that there is any inconsistency with objectives (b) and (d) of cl 4.3 (Written submissions at [21] and in oral submissions) on the last day of the hearing that these two objectives are not really relevant . I will nevertheless consider the Written Request in relation to all four of the objectives of the development standard.
The objective cl 4.3(1)(b) of the CBLEP requires the protection of the local residential amenity, the amenity of adjoining or nearby properties, and the amenity of public spaces in terms of privacy (visual and acoustic) and solar access and view sharing.
In addition to the reasons given listed above at 27 to (12), the Written Request goes on at par [4.3.3] to state that "there is a lack of any adverse amenity impact associated with the two non-compliances for the reasons set out above at 4.3.2 above" (Folio 387, Ex B2). In this regard, the Written Request relies on the decision of Initial Action at [58]. Preston CJ referred to the objectives of the development standard in that case which requires consideration (either through protection or minimisation) of amenity, whether local amenity, the amenity of adjoining or nearby properties or the amenity of the public domain and held that: "the consistency of a development with those objectives, and the unreasonableness and lack of necessity to comply with a development standard, can be demonstrated through a lack of adverse amenity impacts: see Randwick City Council v Micaul Holdings Pty Ltd at [34]."
I accept that to point out the absence of environmental harm may not be sufficient in itself, as submitted by the Respondent in written submissions at par 49 however, the Written Request does more than merely point to the absence of environmental harm. Firstly, the absence of environmental harm is consistent with one of the objectives, namely cl 4.3(1)(b) to protect the amenity of residential accommodation, neighbouring properties and public spaces and secondly, it is relied on as a means of demonstrating that the objectives of the development standard are achieved notwithstanding the non-compliance with the standard. It is a demonstration that compliance with the standard is unreasonable and unnecessary pursuant to the first method listed in Wehbe.
I am satisfied that the lack of adverse impact of the Proposed Development demonstrates consistency of the Proposed Development with that objective in cl 4.3(1)(b) of the CBLEP.
The objective in cl 4.3(1)(d), to ensure that buildings respond to the natural topography of the area, is not expressly addressed in the Written Request and I accept that the Proposed Development is not inconsistent with objective (d).
The Applicant submits that the evidence of Mr Chambers in the Written Request at [4.3.1] supports a finding of no inconsistency with (a) and (c), such a finding is also supported by the evidence of Ms Sorensen (Applicant Written submissions at [21]). Ms Sorensen's evidence includes the following in relation to objective (a) (Transcript Day 2 p 31): "HALE: … Under clause 4.31(a) one of the objectives height standard is to ensure that buildings are compatible with the height, bulk and scale of the future - desired future character of the locality. Would you agree that the 15-storey as proposed and the nine storey part of the development as proposed is generally compatible with the desired future character of that locality? WITNESS SORENSEN: Generally speaking I would say that the tower is 15 storey and the lower building is nine storeys, and in that sense yes, they are compatible with the, the DCP. It still does not justify the necessity to encroach into the nine-storey building heigh by the tower."
The reference by Ms Sorensen to "necessity" to encroach is not the test nor is it included as a consideration as set out in cl 4.6 of the CBLEP, and I am bound to follow the terms of cl 4.6 of the CBLEP and I give this reference by Ms Sorensen's to "necessity" little or no weight.
I am satisfied that the Proposed Development is consistent with objective (a) of the development standard for the reasons given in the Written Request and as agreed by Ms Sorensen.
In relation to objective (c), which is to establish a transition in scale between medium and high density centres, and adjoining lower density and open space zones to protect local amenity, Ms Sorensen acknowledges that the Proposed Development is an architectural response to the transition between the maximum building heights in the context of the separation of building heights being located at a dog-leg or corner on Cooper Street rather than in the context of a straight line. The evidence is extracted as follows (Transcript Day 2 p 31): "HALE: I will ask the question again. It is clear, isn't it, that what is occurring here is the separation or the division between the 15 storey and the nine storey is a dog leg as distinct from a straight line? WITNESS SORENSEN: Yes. HALE: It is quite clear, isn't it, that that dog leg marks the transition between the 15 storeys and the nine storeys? WITNESS SORENSEN: Yes. HALE: You would agree that the buildings, the nine storeys and the 15 storeys as proposed, are generally compatible with the desired future character except to the extent of the intrusion, you might suggest, of 19 square metres? WITNESS SORENSEN: Yes. I just would like to point out, though, that if you look at the height map in the DCP, it does appear that the 15 storey height limit is just sitting above the bend in, in Cooper Street. HALE: I understand that. But you would accept, wouldn't you, that what is occurring here is an architectural response to the division between the 15 storeys and the nine storeys? WITNESS SORENSEN: I understand that it is the approach that the architect has chosen to take, yes."
I am satisfied with the reasons given in the Written Request, that the Proposed Development is consistent with objective (c) of the development standard.
The Applicant further submits that the non-compliances are acceptable and reasonable for the reasons summarised at [4.3.2] of the Written Request. Amongst other things, the non-compliant heights will not be discernible or out of character in the local context. Although I agree that the evidence is that the non-compliant heights will not be discernible or out of character in the local context, I agree with the Respondent's written submission at par 51 that the test to be applied is the terms of cl 4.6 of the CBLEP, and whether the non-compliances are acceptable and reasonable is not part of the consideration pursuant to cl 4.6.

Does the Written Request establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable? (Wehbe [46]. (Initial Action at [19])

The third way to establish that compliance with a development standard is unreasonable or unnecessary is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required. At its highest, the Written Request at [6] (folio 390) states that "if strict numerical compliance was required with the standard, the quality of the built form would be diminished."
The Respondent relies on the opinion of Ms Sorensen as contended in particular (g) and Ex 6 at [19]-[23], that it is considered that a compliant building can be achieved on the subject land and therefore the application of the maximum building height development standard is neither unreasonable nor unnecessary. (Respondent submissions at 52). Then submits at [53] as follows: "53 The Court would accept Ms Sorensen's evidence that the Applicant has made a subjective design choice, including as to internal floor plate configuration, and that "A skilful architect could just as easily design a building that is fully compliant with the building height under CBLEP 2013 and offers good internal layouts and access to common open space areas" (Exhibit 6, [23]). See also Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 per Moore J at [57] and [63] (not disturbed on appeal [2019] NSWCA 130)."
Although I accept that the design quality of the Proposed Development would be diminished if strict numerical compliance with the 31m maximum building height development standard is required, this is not quite enough to establish that the objective or purpose of the development standard would be thwarted if compliance was required with the consequence that compliance is unreasonable.
Having considered the Written Request, the evidence of the experts and the submissions of the parties, I find that the Written Request demonstrates that compliance with the 31m maximum building height development standard is unreasonable or unnecessary in the circumstances of this case because the Written Request establishes that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

Are there sufficient environmental planning grounds to justify contravening the maximum building height development standard?

The second question which comprises part of the consideration of the Court pursuant to cl 4.6(3)(b), and the first part of forming a state of satisfaction (cl 4.6(4)(a)(i)) is whether the Written Request has adequately addressed the demonstration that there are sufficient environmental planning grounds to justify contravening the 31m maximum building height development standard in cl 4.3 of CBLEP.
The Written Request at [4.4] at folio 387 states that "the two height limit non-compliances which are proposed are minor in extent and constitute a relatively small proportion of the overall built form." (folio 387, Ex B2). I have considered the decision of Walsh C in Eather v Randwick City Council [2021] NSWLEC 1075 at [38], where a minor or small departure of a minimum lot size development standard is considered as follows: "Having considered the written request's submissions, in a sense in juxtaposition with the environmental planning concerns raised by Council, I am of the opinion that the written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard. The fact of the particularly small departure from the actual numerical standard and lack of any material impacts consequential of the departure are sufficient environmental planning grounds to justify contravening the development standard."
I accept that the agreed evidence is that the non-compliances are relatively minor from the actual numerical standard and I am satisfied that there are no material impacts consequential from either of the contraventions.
Further, the Written Request provides that "no adverse environmental impacts arise from either of the two proposed height non-compliances, and insofar as the non-compliance caused by the south western corner of the 15 storey extending into the 9 storey height limit zone is concerned, a compensatory, similar sized area of the lower 9 storey building extends into the 15 storey height zone (see Drawing DA-0002)." (Folio 388, Ex B2).
I refer to the Respondent's submission at par 51 of written submissions that the phrase "better planning outcome" remains unexplained, and "it is once again a conflation" with the test in cl 4.6(3)(b). I do not agree with this submission because the Written Request refers to and explains how the Proposed Development will achieve a better planning outcome than a complying scheme at folio 387, Ex B2 in relation to each of the two non-compliances as follows: "The built form and design of the development as proposed will achieve a better planning outcome than a complying scheme by better dealing with the corner condition of the dog-leg in Cooper Street and by providing a rooftop structure on the 9 storey building which not only provides lift and stair access, but which also includes an accessible WC for residents using the rooftop open space. (In this regard, the rooftop structure would qualify as an architectural roof feature and therefore would not be counted as part of the height of the building, but for the GFA it contains in the form of the accessible WC). The non-compliances will not set an unreasonable precedent or standard in the context of the site and its surrounds and may be considered to facilitate further good land use and development outcomes for the Strathfield Triangle."
The Respondent further submits at par 54 as follows: "54 Of equal concern is that the cl 4.6 written request fails the test in cl 4.6(3)(b) and, therefore, cl 4.6(4)(a)(i). Mr Chambers' [4.4], which is purportedly directed to cl 4.6(3)(b), suffers from the vice that it is not confined to the contravention. Sufficient environmental planning grounds to justify contravening the development standard are simply not made out. See paragraph 46 above, Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [23]-[25]; Basten JA (with whom Leeming JA agreed) in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[24]; Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [74]-[81]; Preston CJ of LEC in Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [48]-[51]."
The decision of Preston CJ in Initial Action at [24] considers the focus of cl 4.6(3)(b) to be the aspect or element of the development that contravenes the development standard and not on the development as a whole. Preston CJ states as follows: "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]."
The Written Request focuses on the "two heigh limit non-compliances" and refers firstly to "the better planning outcome than a complying scheme by better dealing with the corner condition of the dog-leg in Cooper Street" and secondly to the "architectural roof feature" being the "rooftop structure on the 9 storey building which not only provides lift and stair access, but which also includes an accessible WC for residents using the rooftop open space". Both of these are focused on the aspect or element of the Proposed Development that contravenes the 31m maximum building height development standard. For this reason, I do not accept the Respondent's submission that the Written Request fails the test in cl 4.6(3)(b) and, therefore, cl 4.6(4)(a)(i).
I am satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter by demonstrating 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).
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 (Initial Action at [15]).
I have formed the first positive opinion of satisfaction required by cl 4.6(4)(a)(i), that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) at par [41] above, and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) at par [50] above. The Written Request has adequately addressed these two matters as set out above in this judgment.

Is the Court as the consent authority satisfied that 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 ?(cl 4.6(a)(ii) CBLEP)

The second opinion of satisfaction the Court is required to form is that 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 (cl 4.6(a)(ii) CBLEP).
I have found that the Proposed Development is consistent with the objectives of the maximum building height development standard in cl 4.3 of the CBLEP. It is now appropriate to consider the objectives for development within the zone R4 - High Density Residential which are as follows: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The Court can consider all the evidence before the Court and is not just limited to the Written Request for the purpose of considering the public interest in accordance with cl 4.6(4)(b) of the CBLEP.
The Applicant relies on the following two extracts from the oral evidence as recorded on the transcript: 1. Transcript Day 2 p 32 "WITNESS CHAMBERS: The, the height limits which have been set both by the LEP and by the DCP seek an outcome which is 15 storeys on the northern part of the site and nine storeys on the southern part of the site. The relationship between the 15-storey height limit and the nine storey height limit is one of a rectangle placed immediately adjacent to a triangle. And the architect has sought to deal with that site condition by wrapping the building around the corner to a, or in - now to a modest degree in to achieve what the architect considers to be, and what I agree with the architect to be, a very satisfactory and high-quality design outcome. Now, knowing this design approach necessitates a breach of the height limit and recognising that clause 4.6 in the LEP is just as important a part of the LEP as the height limit itself, the architect has sought to erode the possible building mass for the 15 storey building be extending the nine-storey element further forward than it needs to go. So there's a - there's, there's, there's not only an excellent - in my opinion, an excellent design outcome for that corner and a far better outcome that would be achieved if he hadn't done what he has done. But there's no additional development potential as a consequence because of the erosion into the 15-storey part of the site." (Emphasis added). 1. Transcript Day 2, p 47 cross examination of Mr Chambers by the Respondent: "WITNESS CHAMBERS: Well, I think that the architects provided two lift cores to maximise amenity to the residents. So, it is strategically located the lift cores for maximum convenience and so that there is a limited number of apartments accessible off each level. And given that the building has a nine storey part and a 15-storey part, it makes good design sense to have a lift core serving each and for that lift core to give access to the roof. And there's nothing inconsistent with any design principle about a well-designed facility on a roof to better provide for resident amenity. I mean, of course, what you could have is just a lift and a stair but this structure has an accessible bathroom for residents with an appropriately configured lobby area and an access door out onto the space. So there's some immediate shelter in the event of a bad weather condition, for example. So it's a well designed outcome and it's also integrated into the façade design of the building, the nine-storey building, albeit set back from the main façade line by an additional two metres. IRISH: But it would have been possible to design all of those benefits within the compliant height of 31 metres and nine storeys, that's correct, isn't it? WITNESS CHAMBERS: Well, look, anything's possible in terms of design but it wouldn't be good design because it would mean that there'd be a very long corridor for the southern most units going to the lift lobby to get out onto the rooftop lift. Instead of being immediately accessible to them off their own lift lobby. Just makes design sense to provide them with access from the nine storey building."
In relation to the roof top structure, the Respondent submits at par 48, that "there could have been a common lift core providing access from the 15 Storeys/9 Storeys to the outdoor communal space on the roof top of the 9 Storey building, obviating the need for the lift and stair access to the roof to exceed the maximum height."
This submission is not supported by Ms Sorensen's evidence at par [23] of the Planning JER (Ex 6) which is that in relation to the rooftop structure, it would not be a good practical design to have residents of the 9-storey building exit this building and then enter the 15-storey building to gain access to the roof terrace.
There was no evidence which disputed that the Proposed Development is consistent with the objectives of the zone. Accordingly, I have formed the positive opinion required by cl 4.6(a)(ii) CBLEP, that the Proposed Development is 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.
Accordingly, the Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.3 of the CBLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the CBLEP, and that the proposed development would 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. I conclude that the cl 4.6 Written Request should be upheld.

Excessive Bulk and Scale - isolated sites, envisioned amalgamated super lot including 1A Chapman Street (Contention 2)

The second contention pressed by the Respondent relates to the third contention however I will deal with each separately.
The locality-specific STDCP applies to the Site and I accept the Respondent's submission that the STDCP needs to be understood as a whole, so that the determination of the contested issues by reference to its provisions can be understood in context.
The STDCP contains in Part 3.7 aims and controls to achieve site amalgamation in accordance with the Amalgamation Pattern in Map 8, reproduced below. The subject site is to the west of Chapman Street. To the east of Chapman Street are properties that are owned by related entities of the Applicant. Those properties to the east of Chapman Street and the closed part of Chapman Street (1A Chapman Street) together constitute one of the amalgamation patterns. Figure 3: STDCP map 8: amalgamation pattern
The primary disagreement between the expert town planners is whether the Proposed Development is appropriate when viewed from the east.
The Applicant submits that the JER Planning (Ex 6) identifies that there is now only one unresolved issue so far as contention 2 is concerned. That issue is that the Proposed Development abuts the southern part of the eastern side boundary, that is without any setback from that part of the eastern side boundary. The eastern side boundary is the boundary of what had previously been Chapman Street. It is now known as 1A Chapman Street and is owned by the Council.
The Respondent acknowledges that the town planning experts agree that "The proposal has an appropriate design, bulk and scale when viewed from the north, west and south" (Ex 6, [24]), but the experts do not agree as to appropriate design, bulk and scale when viewed from the east. The town planning experts describe the issue of whether the proposal should be approved having regard to its relationship to the adjoining land to the east as the primary issue on which they disagree. (Ex 6, [10(l)(i)])
The Applicant submits at par 56 that the building design took into account any development on 1A Chapman Street and that the drawings shows how the building was designed in response to the STDCP where the built form anticipates that the building will be extended consistent with the assumed building footprint in accordance with Map 6 of the STDCP, reproduced below. Figure 4: STDCP map 6: Assumed Building Footprint
The Respondent contends that the Proposed Development does not satisfy provisions of the STDCP including the Aims of Part 3.7 Site Amalgamation or Controls C.2, C.3, C.4 which require to be understood in the context of the STDCP as a whole. See also Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 per McClellan CJ at [87], in relation to the principles relevant to the consideration of a development control plan such as the STDCP, adopted after consultation with interested persons including the affected community (Ex 4 Tab 14.46). The Respondent submits that "the non-compliance with the amalgamation pattern produces a building which, vis-à-vis the east, is unsatisfactory."
The Statement of Facts and Contentions in Reply filed on 11 August 2021 (Ex B1, Tab 2.26 and 49-113) sets out in some detail the history of the closure of Chapman Street and the endeavours to redevelop the subject site since 2000. Since 2000, the intention of the Council and entities related to the Applicant, was that Chapman Street would be closed and sold to one or other of those entities in order that the former road be amalgamated into a development. There have been a number of development consents obtained by related entities of the Applicant in the past 20 years.
The Applicant submits that "but for the failure of the Council to sell the land to the Applicant or a related entity, the amalgamated site would have been developed in accordance with the amalgamation pattern under the STDCP. The sole reason why this has not occurred has been due to the Council's failure to sell 1A Chapman Street to the Applicant or one of its related entities. As a consequence, the Applicant has sought to develop its land to the west of Chapman Street, up to what was formerly the street frontage. It will develop separately its lands to the east of Chapman Street as an amalgamated development site."
The Respondent contends that the Proposed Development should be refused because it does not conform with the amalgamation pattern and does not satisfy the aims of Part 3.7 of STDCP, and in written submissions at 58 - 59 explains as follows: "The non-compliance with Aims and Controls of STDCP 2013 58 The Aims of Part 3.7 Site Amalgamation are: A.1 To encourage site consolidation of allotments for development in order to promote the efficient use of land and to avoid the creation of isolated sites; A.2 To encourage the development of existing isolated sites in a manner that responds to the site's context and characteristics and that maintains a satisfactory level of amenity; and A.3 To ensure adequate residential amenities are achieved. (emphasis added) 59 The proposed redevelopment of the site does not conform to the amalgamation pattern. In relation to Control C.1, even if the Applicant were to persuade the Court that it is not "possible" to "conform to the amalgamation pattern illustrated" insofar as it is not "possible" to include the redevelopment of Council's former Chapman Street, there is no explanation for why (in the circumstances of the caveat over part of Chapman Street protecting the estate or interest obtained by Arinson Pty Ltd - an entity related to the Applicant - by Court Order on 24 April 2014, Ex 5, Tabs 6-7, not disturbed by the appeal at Ex 5, Tab 8), the six properties to the east of Chapman Street (owned by the Applicant or related entities) are not included in this proposal. The Court would find that the Aims of Part 3.7 Site Amalgamation are not otherwise achieved."
I will come back to the caveat and the unregistered easement shortly.
The Applicant's case is that the design of the Proposed Development takes into account the amalgamation pattern and the assumed building footprint set out in Maps 8 and 6 of the STDCP. Mr Chambers explains that the design of the building took into account any development on the Respondent's land. Mr Chambers' explanation is in the JER Planning (Ex: 6 p 174-175 at [28]-[29] and in his oral evidence: (Transcript Day 2 p 63-68). For convenience, part of his evidence on this issue is reproduced as follows from Transcript Day 2 p 63-64: "WITNESS CHAMBERS: The, the project architect has sought to design the building to be seen what's referred to is in the round. It's been designed to be seen from north, south, east and west. There are multiple buildings in the Strathfield Triangle which have been built to the side boundaries and where blank walls are visible. In this case, the architect has sought to, in my opinion, cleverly manipulate the floor on the eastern elevation so that it is fragmented so that part of the building blocks the boundary. In order - and that's the southern part of the building. So if you look at - looking at the image that you've got in front of you if you've got annexure E, at the left of picture, there are two walls that you can see which are beige and, and a darker grey colour. Those walls are on the boundary, and the architect has used a sculptural prefabricated material to provide visual interest to those parts of the building, so subsequently a blank wall. The architect has provided a notch in the, that wall which functions as a break in the mass on the boundary and provides a fire approved glass block window in each of the units. But the unit doesn't rely on that window for light. Then uses an architectural vice comprising vertical elements which, sort of, tie the architectural composition together which are largely decretive. One can see on that image the communal open space on the ground floor, like a void, which is open to the north and north east. So this, this image that you're looking at is looking from the north east at the, at the building. The central section of the building is set back from the boundary. As is the 15 storey element which has got those vertical screens on it. And it's pulled back off the boundary in order to get light and solar access into those apartments that you can see between the 15 storey building and the nine storey building. Similarly, the end elevation, so the eastern elevation which is the elevation that you can see on the smaller element at the right of picture, uses those same prefabricated blocks. At ground level, you can see like a black frame just below the canopy of the tree with vertical black elements. That frame extends along the boundary and is, sort of, a unifying element at the ground level to - which rises out of a planter along the boundary, which you can see with, with plants in them along that, along that edge. And that continues through the northwards through the communal open space to the northern boundary which, of course, adjoins Bakers Lane, which according to the LEP and the Land Reservation Acquisition Map is to become a public park. So whether you, whether that park is ever realised or from further north and Hilts Road, or from Cooper Street from the north west, or from the Council land, what is presented is a, what I would call, a, a clever, well considered and very satisfactory design outcome facing the Council land that does not in any way diminish the development potential of the Council land. Rather, it enhances the development potential of the Council land because it allows development on the Council land, should it ever occur which is, in my opinion, unlikely, to have some likely viability. Because if the building on the subject land is made to set back, so would a building on the Council land. And the Council land is only 20 metres wide and the eastern, six metres, is affected by an easement which has been granted but not yet registered over that land, and that easement has a north westerly splay which makes it even wider on the northern boundary of 1A Chapman Street. So if - this building, as designed, is acceptable if no development occurs next to it. It's acceptable if development does occur next to it. In, in my opinion, it's a design which is perhaps as good as it can be for a development site where it's unknown what might be - whether there will be something against it, and if so, what that will be, so I think this is a well resolved architectural outcome and one which is, one which really is entirely consistent with what the LEP is seeking to achieve. That, that - after 20 years of non development and after the full amalgamation of the seven lots to the west of Chapman Street and the six lots to the east of Chapman Street - so on the total amalgamation site as a whole in the DCP, there are 14 lots and 13 of them have been amalgamated, and one in the middle is the Council land which hasn't been for the reason which you've explained, Mr Hale. That's, that's my, that's my view on that, on that question."
On this same issue, Ms Sorensen's oral evidence is reproduced for convenience, as follows: 1. Transcript Day 2 p 54: "HALE: Your approach is whether or not the council seeks to develop the land at some future time, the setbacks from the eastern boundary of the subject site should be such as to enable the council to build whatever it wants to build if it wants to. WITNESS SORENSEN: Yes. HALE: Even though it might be improbable that the council will ever do it. WITNESS SORENSEN: Yes" 1. Transcript Day 2 p 55-56: "HALE: What you're saying is that the applicant should not be able to develop the land to the eastern boundary in the way that it proposes because the council might at some stage want to develop the land itself. That's your proposition, isn't it? WITNESS SORENSEN: I don't have a crystal ball; I cannot see in future what council may or may not do with this land. It is my opinion that the subject site at 10 Chapman Street will need to be designed as a standalone building with appropriate setback to ensure that amenity is ensured to future occupants on the subject site and potentially in a development on 1A Chapman Street. HALE: Whatever that might be and whenever that might be. WITNESS SORENSEN: Yes. HALE: So, it all depends on the council in its good time deciding what to do with this particular land, correct? WITNESS SORENSEN: Yes."
The Respondent submits that Ms Sorensen's opinion relates to both contentions 2 and 3 and at par 68 and 69 submits as follows: "68 Ms Sorensen says that the issue with the eastern elevation is not just its presentation (as per the image in Annexure E to Ex 6), but the concern with the blank façade sitting on the boundary, and the internal amenity of a number of units because of the compromised setback which will be further impacted should any development on the adjoining site occur. She says that the Applicant has not demonstrated that development on the Chapman Street side of the boundary will not further impact the amenity of the apartments on the eastern side of the subject site. Ms Sorensen's main concern are the apartments that sit right up against the eastern boundary, some without openable windows. Without adequate building separation, these apartments will also have a poor outlook. See, for example, apartment 07 on L1 and apartments 08 on L2-L4. See also, paragraph 70 below. 69 For the reasons set out above and below, the Court would not be satisfied that the Applicant has satisfactorily resolved both aspects of Contention 2, and/or Contention 3, and would refuse the development application for this reason."
In relation to amalgamation of sites, the Respondent refers the Court to the planning principle in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 per Commissioner Tuor at [17]-[19], which provides as follows: "17 The general questions to be answered when dealing with amalgamation of sites or when a site is to be isolated through redevelopment are:

· Firstly, is amalgamation of the sites feasible? · Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible? 18 The principles to be applied in determining the answer to the first question are set out by Brown C in Melissa Grech v Auburn Council [2004] NSWLEC 40. The Commissioner said: Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application.

Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 19 In the decision Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189, I extended the principles of Brown C to deal with the second question and stated that: The key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity.

To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road.

The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments."

The Respondent concludes that "quite simply, the Applicant must (perforce its non-compliance with the amalgamation pattern in Control C.1) show compliance with both Control C.2 and Control C.3, noting that Control C.3 requires an "envelope", not merely a footprint." The Respondent further submits at par 62 of written submissions, that in relation to the Applicant's history regarding 1A Chapman Street, set out in the SOFAC in Reply "there is nothing which meets the description of Control C.2 which reflects the planning principle above: "A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, … based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property." The Respondent's conclusion is that the Court would not be satisfied that the Applicant has discharged all of the requirements of Controls C.2 and C.3.
I find as a fact that the evidence before the Court is that there are no present plans for the Council to develop the site itself and my reasons for this finding include that Ms Sorensen, who is a council employee, confirmed that she was unaware of any plans on behalf of the Council to develop the land, there are no development applications proposed for the land and that the Council has not undertaken any studies to determine what the Council might be able to build on the land. Ms Sorensen is also not aware of any discussions with any other developers to sell the land for a particular form of development. (Transcript Day 2 p 53).
The Respondent submits that: "66 Part of the cross-examination of Ms Sorensen focused on the likelihood of future development of 1A Chapman Street, and what was permissible on an area of land of 1,365 m2, but this was entirely premised on 1A Chapman Street remaining in the ownership of Council, when it has been earmarked for future sale since former Chapman Street was closed (even though not achieved to date), and there is no guarantee that the Applicant or related entities is either the only interested purchaser, or is guaranteed to always own the smaller sites (or all of them) to the east of Chapman Street. Ms Sorensen's town planning evidence concerning appropriate protections of amenity either side of the common boundary between the subject site and Chapman Street is, quite properly, agnostic as to the ownership of affected land. The Court would accept Ms Sorensen's evidence and would give little or no weight to the determination of Contention 2 (or Contention 3) upon a premise that Chapman Street will remain unsold, or a single parcel, in futuro."
The Applicant submits at p 11 that it is unclear what the land known as 1A Chapman Street could be used for. It has an area of 1,365m². Under cl 4.1A of the CBLEP it cannot be developed for multi dwelling housing or residential flat buildings because it has an area of less than 1,500m². Nor can it be developed for a dwelling house. Ms Sorensen accepted this was the case. (Transcript Day 2 pp 54 - 55)
Returning to the caveat protecting the unregistered easement for right of carriageway over 1A Chapman Street (Court ordered), the Applicant submits that the "easement has the most deleterious impact on the development potential the block" (p 12).
Respondent submits at [67] "Much was also sought to be made of the unregistered s 88K easement over 1A Chapman Street. However, compensation has never been paid for it, and it needs to be noticed that it is limited in height."
The evidence of Mr Chambers about the easement and its impacts on the land at 1A Chapman Street is extracted from the transcript as follows: (1) "the easement has a most deleterious impact on the development potential of the council land because it reduces its practical width to only 14 metres or thereabouts and less on its northern end so it's very very difficult to see how the council could possibly sell that land with that easement in place and have the land developed. That is a consequence of the council's actions. (Transcript Day 2 p 70) (2) "if there is an easement over a 6 metre wide path widening to I think about 13 metres on a block of land which is 20 metres wide, then that is a seriously diminishing impact as reflected by the compensation that the council is to get when the easement is registered because it has that very significant impact on the development potential of the land." (Transcript Day 2 p 72)
The Applicant concludes that without the land at 1A Chapman Street being incorporated into another development with land to the East, it has very little prospect of being development (Subs at p 12). I accept this conclusion having considered the size, location and encumbrances affecting the land at 1A Chapman Street together with the evidence available to the Court during the proceedings including Ms Sorensen's evidence and the history as set out in the SOFAC in Reply.
The STDCP took effect in 2013 and as the unchallenged history demonstrates, since 2013 the Respondent has declined to negotiate with the Applicant or its related entities for the sale of the land at 1A Chapman Street. The STDCP is predicated on the assumption that 1A Chapman Street would be sold to the Applicant as owner of the adjoining land, and incorporated into a development site in accordance with the Amalgamation Pattern in Map 8. In fact, at [1.9] p 49 Respondent's Bundle of Documents (Ex 4) of the STDCP, the Respondent represented that 1A Chapman Street would be closed and incorporated into a development site.
Ms Sorensen has accepted that the Council has had two roles in the implementation of the STDCP (Transcript Day 2 p 49) as extracted from the transcript below: "HALE: All right, but it is quite apparent that so far as the implementation of the DCP is concerned, the council has two roles, one is a land owner and one is the consent authority. WITNESS SORENSEN: Yes."
The Applicant relies on the evidence of Ms Sorensen where she accepts that the Respondent in its landowning capacity has completely undermined the amalgamation pattern in the area of the subject land, which has also rendered the built form controls in the area irrelevant. Her evidence is (at Transcript Day 2 p 52): "HALE: And as a consequence of that, that the council's action in its capacity as a landowner, it has made compliance with the amalgamation pattern in the relevant area impossible, hasn't it? WITNESS SORENSEN: Yes. HALE: The council in its landowning capacity has made compliance with the amalgamation pattern impossible. WITNESS SORENSEN: Difficult. HALE: Well, if they won't sell it, it's not possible. WITNESS SORENSEN: No. HALE: Do you agree? WITNESS SORENSEN: Yes. HALE: So, the council by its actions has completely undermined the amalgamation pattern in this particular area? WITNESS SORENSEN: Yes. HALE: You are also aware, aren't you, that the proposed development conforms so far as it goes to the built form identified in the DCP for this particular area? WITNESS SORENSEN: That built form is based on the amalgamation pattern. HALE: Yes, which the council's made it impossible to achieve, correct? WITNESS SORENSEN: So therefore, the built form and the DCP is irrelevant. HALE: Sorry, so you say it is irrelevant because the council has made it irrelevant because of its refusal to sell the land? WITNESS SORENSEN: Yes."
Applicant's submission is that the STDCP has been abandoned and that pursuant to s 4.15(1)(iii) of the EPA Act, the STDCP would be given very little weight so far as the subject is concerned. Preston CJ in Initial Action at [20] in the context of a cl 4.6 written request said this: "A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable: Wehbe v Pittwater Council at [47]"
The Applicant argues that refusing development consent to the Proposed Development on the grounds the Respondent contends would be inconsistent with the objective of the EPA Act at s 1.3(c), namely to promote the orderly and economic use and development of land. (App subs p 17)
I accept the Applicant's submission that there is no justification for refusing the proposed development simply on the basis that the Council, in its land-owning capacity, has refused to sell the land to the Applicant (or related entities). The amalgamation pattern was based upon an assumption that the Council would sell the land. Accordingly, I conclude that in order to promote the orderly and economic use and development of the Site, the Proposed Development should be approved.
For completeness, I will briefly consider contention 3.

Apartment Design Guide - Design Principles (Contention 3)

The only issue in dispute in relation to contention 3 concerns the impact of the proposed development on the Council land 1A Chapman Street, in the context the Proposed Development being a standalone development, that is, not amalgamated as envisioned by the STDCP.
Respondent submits that the Proposed Development does not meet the SEPP 65 Design Principles 1-4 and 6, and is inconsistent with the ADG and at 70: "In relation to this specific contention, Ms Sorensen says that the proposal is not designed vis-à-vis its eastern boundary with either a satisfactory resolution as a standalone building abutting an isolated site, taking into account the potential for generating adverse impacts (Ms Sorensen at Ex 6, par at top of page 11, and [30]-[32], [44]-[45], [47]), nor is it designed as an abutting building (Ms Sorensen at Ex 6, [46]). As set out above, the recommendations of the Design Review Panel (Ex 4, Tab 2) on design and footprint, forwarded to the Applicant, were disregarded." (Edna Sorensen at Ex 6, par at top of page 11)
The Applicant notes that contention 3 was dealt with by the expert planners in their evidence regarding contention 2.
The Applicant submits that the Proposed Development could not be said to be non-compliant with the ADG side setback provisions given that the STDCP anticipates development which abuts the side boundaries.
I have considered the evidence of the expert town planners, and on merit I prefer the evidence of Mr Chambers for the reasons he explains at par [75] above.
On the last day of the hearing, 30 September 2021, the parties addressed the Court in relation to Ex 14 Traffic, Waste and Stormwater JER and the Respondent noted the opinion of Mr MacGillicuddy, Traffic expert for the Respondent, at par [12] and [16] in relation to the STDCP control to limit the number of driveways and car park entries and the RTA Guide to Traffic Generating Development version 2.2 October 2002 s 6.4, which states that "separation of service vehicle and car movements should be a design objective". I note that the experts refer to this document as the "RMS Guide". Mr MacGillicuddy's view is that the sporadic use of the service vehicle driveway supports having a single driveway. Having considered all the evidence and expert opinions, I prefer the evidence of Mr Doan, Traffic expert for the Applicant, in particular at par [15] where he notes that the Proposed Development limits the number of driveways to two and that cl 5.6.1 - C.5 of the STDCP does not state that a single driveway is required. For these reasons, I conclude on merit that the Proposed Development may have more than one driveway as proposed.

Conclusion and findings

Having considered the submissions of the parties and the evidence before the court, I conclude that the Applicant's Proposed Development should be approved for the reasons at pars [62], [92] and [98], that the cl 4.6 written request should be upheld, that the appeal should be upheld and the Court would grant development consent to the development application, subject to conditions.
I will now address the proposed conditions of consent and note that it will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Development subject to conditions of consent.

Conditions of consent

The Applicant submits that Conditions of consent can address matters raised in the Joint Expert Reports and the parties assisted the Court by consolidating the Draft/Proposed Conditions of Consent annotated with comments by each party regarding the wording of those conditions which is agreed. The consolidated Draft/Proposed Conditions of Consent is marked Exhibit 15 and is the document against which I will now address. I will group my observations and findings under the topic headings of Sydney Trains terms of concurrence, Condition requiring dedication of land and miscellaneous findings.

Sydney Trains terms of concurrence

It is agreed that pursuant to cl 86 of the Sydney Environmental Planning Policy (Infrastructure) 2007, Sydney trains provided two letters dated 22 September 2020 (Ex 4, Tab 1) and 13 August 2021 (Ex 5, Tab 3) the latter granting concurrence to the Proposed Development subject to Deferred Commencement Condition A1 in Attachment A and the operational conditions in Attachment B. The Applicant seeks some minor modifications to the wording to tailor the conditions to the Proposed Development, whereas the Respondent submits that the terms of the conditions as proposed by Sydney Trains should remain unaltered.
The minor modification sought by the Applicant appears in numerous clauses throughout Ex 15 and is effected by the deletion of the indefinite article "a", and the insertion of the words "the relevant" prior to the words "Construction Certificate" in each instance the phrase appears because "it is expected that the applicant may require more than one Construction Certificate which relate to various relevant works which it proposes to undertake, this condition is limited to the Construction Certificate to which it applies." The Respondent rejects the insertion of the word "relevant" because the wording is a "requirement of a Concurrence Authority."
I am satisfied that the original wording is not limited to any particular Construction Certificate and that by inserting the word "relevant" does not change the meaning other than to clarify that each reference to a Construction Certificate is limited to the clause within which it appears, and as there are numerous clauses with references to "a Construction Certificate", the proposed amendments by the Applicant make it more certain in context without changing the meaning and intent of the phrase. Accordingly, I conclude that the numerous amendments proposed by the Applicant as specified at par [103] above are appropriate. This conclusion also applies to the numerous other identical amendments sought by the applicant throughout the conditions of consent which may not be a Sydney Trains condition, such as condition DACCA01 and others.
Deletion of penultimate paragraph in DAGCA08 is sought by the Applicant on the basis that it is ambiguous and general in nature, whereas the Respondent simply rejects the deletion and seeks its retention because it is a requirement of a Concurrence Authority. The paragraph seeks ongoing consultation with Sydney Trains and the provision of documents should they be sought by Sydney Trains for the duration of demolition, excavation and construction works. I accept that Sydney Trains seeks an ongoing role during the development and the nature of this paragraph is intended to be broad and general in nature in order to capture all stages of the development. I conclude that the paragraph should be retained.

Condition requiring dedication of land - DACCA05

The parties submit that there is general agreement in relation to the conditions requiring the dedication of land pursuant to the City of Canada Bay Development Contributions Plan - Strathfield Triangle (Contributions Plan), which was effective from 30 May 2014.
The Applicant makes submissions at p 18 of written submissions as to the circumstances which give rise to the drafting issue, to give effect to the Contributions Plan in the circumstances of the case and I summarise as follows: 1. At Ex B2 p 614 is Map 3, which identifies "Land required for dedication in lieu of development contributions". This includes dedications for the widening of Cooper Street. This has direct application to the western boundary of the development site from Bakers Lane to Chapman Street. 2. At Ex B2 at p 607 of the Contributions Plan, is the text which refers to map 3. It states that the identified land in Cooper Street is required for dedication in lieu of contributions under the plan. That land is 3m wide and is to be dedicated for the purpose of widening Cooper Street. 3. The Contributions Plan provides at p 607 as follows: "Where the value of the land identified for dedication to Council in lieu of contributions is higher than the contributions required to be paid, Council will provide payment to the sum of the difference between the value of the land and contributions required for payment under the Plan. The value of this land will be undertaken in accordance with the requirements within Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991." 1. Under the Contributions Plan, the Applicant is therefore required to dedicate for road widening the 3m wide strip along Cooper Street. The Applicant contends that the value of the land to be dedicated pursuant to this provision exceeds the value of the contributions otherwise to be paid to the Council under the contributions plan. The Council must therefore pay the Applicant the difference.
The Applicant submits that the Council's Draft Condition DACCA05 titled "Dedication of Land to Council" partly resolves this drafting issue. However, in condition 1, the dedication of the land should be prior to the issue of a Construction Certificate and not prior to the issue of an Occupation Certificate, because the Applicant needs to know whether it is to dedicate the land before the Construction Certificate plans are prepared and prior to construction.
The Respondent's reasons for the timing to be prior to the Occupation Certificate are that this will allow for sufficient time for discussions between the parties and to minimise any burden on the Applicant. The Applicant responds with the assertion that any delay in discussions will cause greater burden. I note that in the context of the conditions of consent, including a number of deferred commencement conditions, there will be ample time and opportunity for the parties to engage in discussions.
I note further that as the proceedings were being concluded, the Court was advised that in the relation to conditions DACCA05 and DACCB05 the parties reached agreement as to the timing to be prior to Construction Certificate for both conditions, as is consistent with the notation in Ex 15. I agree with and accept the Applicant's submissions regarding the timing for the reasons given by the Applicant and conclude that it is proper and reasonable for the dedication of land to be prior to the issue of the Construction Certificate.
In addition, in Condition 1 of DACCA05, the Applicant seeks the words "in lieu of monetary contributions under the Contributions Plan" to be reinstated because it is consistent with the Contributions Plan and is the basis upon which the Contributions Plan authorises the dedication. The Respondent agrees with the Applicant's drafting of Condition 1 of DACCA05, provided the words "per conditions DACCB05" are included.
The timing threshold in Condition 4 in DACCA05, before which the appointment of a registered valuer is triggered in the event of no agreement being reached as to the value of the land to be dedicated, is proposed to be eight weeks by the Respondent as opposed to four weeks as proposed by the Applicant, on the basis that 4 weeks is 'sufficient'. I accept that it is appropriate for the Respondent to seek eight weeks in order to attempt to reach a land valuation agreement to allow appropriate level of engagement, and to ensure the relevant officer of Council has the appropriate delegations. Therefore, I conclude that the time should be eight weeks as sought by the Respondent. The same argument and conclusion applies to the timing in Conditions 6 and 7 of DACCA05, and the period of 90 days is appropriate in each for the same reasons.
The Applicant submits that draft Condition DACCB05 should be redrafted and has redrafted the condition with an alternative form of words, and submits that this condition should only operate if the land proposed to be dedicated in lieu of monetary contributions under the Contributions Plan is in fact not to be dedicate pursuant to Condition DACCA05. Again, as the proceedings were being concluded, the Court was informed that the parties agree to the deletion of the chapeau or opening words to DACCB05 and to the deletion of the entire paragraph immediately following the table in DACCB05. The reason given by the parties, is that the obligations are created as a matter of law.
Condition DACCB05 in Ex 15 is inconsistent with the information given to the Court as to the agreement reached between the parties, and only the agreed deletion of the paragraph commencing "Should the applicant seek an offset" following the table remains deleted. In effect, the Applicant now seeks to retain the opening words to conditions DACCB05 and the timing for payment of any s 7.11 contributions to be required prior to the issue of an Occupation Certificate instead of the previously agreed Construction Certificate, which the Applicant submits is the usual timing. The Respondent retains the timing as prior to Construction Certificate and seeks deletion of the opening words of the conditions (which read "In the event the obligation to dedicate the land referred to DACC05 does not arise,"), because "the obligation to ascertain the value of the land to be dedicated and any s 7.11 contributions are interconnected" and relies on "the next full paragraph after the final table in this condition (which) includes reference to condition DACCA05 and its obligations." Unfortunately, it appears that the 'full paragraph' after the table is now deleted in Ex 15.
Having considered the submissions of the parties and the wording of Condition 1 in DACCA05 which includes the reference to condition DACCB05, I conclude that the opening words of Condition DACCB05 are not required and that it is appropriate for the timing previously agreed between the parties as advised to the Court remain, namely prior to Construction Certificate for both DACCA05 and DACB05.

Miscellaneous findings

Deferred commencement conditions pursuant to s 4.16(3) of the EPA Act which provides as follows: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
The Applicant seeks the period of 5 years to satisfactorily resolve the requirements listed in Schedule A, whereas the Respondent submits that this time period is too long and proposes 12 months. The second amendment sought by the Applicant is wording to accord with the wording in cl 95(5) of the Environment Planning and Assessment Regulation 2000 (EPA Regulation), regarding notification from the consent authority that the applicant has satisfied the issues under Schedule A as opposed to "written confirmation from Council …"
Clause 95 of the EPA Regulation provides as follows: 95 Deferred commencement consent (cf clause 67 of EP&A Regulation 1994) (1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 4.16(3) of the Act or otherwise). (2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions. (3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters. (4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period. (5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. (6) If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 8.7 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
The time period to produce evidence is not specified in cl 95(3) and the parties did not make submissions as to the time period other than it is too long and a reference to s 4.53(6) of the EPA Act. (6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within - (a) 5 years after the grant of consent if the consent is granted after the prescribed period, or (b) 5 years after the grant of consent if the consent is granted during the prescribed period, or (c) 2 years after the date on which the development consent would otherwise have lapsed if - (i) the grant of consent was before the commencement of the prescribed period, and (ii) the development consent has not lapsed at that commencement.
The time period sought by the Applicant is consistent with the maximum period of time provided in s 4.53(6) of the EPA Act, and without further benefit of argument from the Respondent, I conclude that 5 years to satisfactorily resolve the requirements listed in Schedule A of the Conditions of Consent is a lawful and otherwise appropriate timeframe. I have also considered the nature and number of the requirements in Schedule A in coming to this conclusion.
I also agree and accept that the wording proposed by the Applicant as to "notification from the consent authority that the applicant has satisfied the issues under Schedule 'A'" is consistent with cl 95(3) of the EPA Regulation, and I conclude that this is the preferred wording for that reason.
The Respondent submits that in relation to matters outstanding following the Joint Traffic, Waste and Stormwater Expert Report filed 24 September 2021 (Ex 14) the issues outstanding are as follows: 1. Access from the waste/service area to the lobby is by stairs which is less than satisfactory (Respondent); 2. Where two driveways are proposed by the Applicant, Mr MacGiliicuddy prefers a single driveway; and 3. The Court needs to be satisfied regarding sight lines - impose controls re landscaping to ensure service vehicle sightlines and pedestrian safety.
The requirement in Schedule "A" provides for the Applicant to provide a sight lines assessment at the service vehicle driveway in accordance with AS 2890.2.2018, and based on the future alignment of Cooper Street as per Council's public domain plans. The Respondent rejects the deletion of the following:
"The associated sight line triangle adjoining unit G 03 shall be classified a common property and the height of objects within the triangle restricted in line with the sight line requirements of AS 2890.2.2018" because "it is impractical to effectively manage sightline obstructions through a private open space." The Applicant submits that Council's concerns are resolved by condition DAFOG02 and that "this can not be achieved as a deferred commencement condition." Condition DAFOG02 provides for documents giving effect to the creation of a Positive Covenant and Restriction on Use of Land over the land within the sight line triangles adjoining unit G-03 under s 88E and or s 88B of the Conveyancing Act 1919, to ensure the height of objects within the sight line triangle adjoining unit G-03 do not exceed the requirements of AS 2890.2.2015 prior to the issue of the final Occupation Certificate. I am therefore satisfied that the wording in Schedule A sought to be deleted by the Applicant should be deleted as proposed.
Demolition works Condition DAPDB01 includes a proposed deletion of the last sentence by the Applicant because demolition works do not require the provision of a Construction Certificate. The Respondent rejects the proposed deletion because as the approval is sought for demolition and construction under the one development application, there are other conditions required to be satisfied prior to the commencement of works, such as payment of bonds and issuing of a Construction Certificate to 'activate' the consent. I note that Condition DAPDB01 requires compliance with s 6.6 of the EPA Act which provides requirements before building work commences, and I also note that s 6.7 of the EPA Act requires a construction certificate for the erection of a building in accordance with a development consent. "Building work" is defined in s 6.1 of the EPA Act as 'any physical activity involved in the erection of a building'.
I accept the Respondent's rejection of the deletion of the last sentence of Condition DAPDB01 on the basis that the applicant will be complying with all of the consent conditions which will include the requirement for a construction certificate pursuant to s 6.7 of the EPA Act, in order to activate the consent. The same conclusion is reached for Conditions DACCE04, DAPCB05 and DAANN04.
The Applicant seeks to delete wording from Condition DACCG15 5th bullet point commencing with "To minimise the potential for conflict between entering and exiting vehicles…". The deletion is sought by the Applicant because it "will allow an appropriately qualified traffic engineer to provide suitable alternatives" which will be required to be submitted to the Accredited Certifier. The Respondent opposes the deletion because the condition as drafted by the Respondent corresponds with the original traffic report by the applicant's traffic consultant, which says a traffic signal system is to be installed on driveway ramps and that the change sought by the Applicant erodes that by only indicating 'delineation signage'. I accept the Respondent's submission and conclude that the Applicant's amendment is rejected for the reason given by the Respondent.
Condition DACCL06 relates to rainwater harvesting and the Applicant's amendment is on the basis that the BASIX scheme provides for a comprehensive scheme for when water savings measures are required (as per cl 9 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004), and will leave no work for Council's rainwater re-use policy. The Respondent opposes the amendment because the requirement of Council's DCP is not overruled by BASIX commitments. I note that the original wording in Condition DACCL06 includes the phrase "whichever is applicable". If the Applicant is correct and the original wording may not have any work to do, the same argument can be applied to the opposite effect, namely that it will do no harm or will not detract from the BASIX commitments. Without detailed submissions, I am otherwise satisfied with the Respondent's submission and conclude that the original wording is to remain unchanged for Condition DACL06.

Directions

It will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Development, subject to conditions of consent. To that end, I make the following directions.
The Court directs that: 1. the Respondent is to file with the Court final, agreed, conditions of consent, reflecting the conclusions of this judgment above at [102]- [130] by no later than midday on 4 March 2022.; 2. the matter is listed for mention on 11 March 2022 at 4:15pm; 3. if direction (1) above is complied with, an order will be made granting development consent and the mention on 11 March 2022 will be vacated; 4. the Parties are granted liberty to restore on three days' notice.

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: 11 February 2022

(2018) 236 LGERA 256

(2004) 136 LGERA 254

(2007) 156 LGERA 446

(2018) 233 LGERA 170

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Judgment (20 paragraphs)

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Cases Cited (16)