MODIFICATION OF CONSENT: whether substantially the same development, mixed use development
Legislation Cited: Canterbury Local Environmental Plan 2012
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development
Environmental Planning and Assessment Act 1979
Cases Cited: Vacik Pty Ltd v Penrith City Council [1992] NSW LEC 8
Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280
Source
Original judgment source is linked above.
Catchwords
MODIFICATION OF CONSENT: whether substantially the same development, mixed use development
Legislation Cited: Canterbury Local Environmental Plan 2012State Environmental Planning Policy No 65 - Design Quality of Residential Apartment DevelopmentEnvironmental Planning and Assessment Act 1979
Cases Cited: Vacik Pty Ltd v Penrith City Council [1992] NSW LEC 8Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280
Judgment (10 paragraphs)
[1]
Judgment
Innerwest 888 Pty Ltd (Innerwest) lodged an application with Canterbury Bankstown Council that seeks to modify Development consent 533/2012 by expanding the basement car park level, providing an additional level of residential accommodation and modifying the approved strata title subdivision plan to incorporate the additional units and the associated carparking spaces.
The council had not determined the application and Innerwest is appealing its deemed refusal.
The main issues in the case are whether the development is substantially the same as the development approved under the original development consent and if it is whether the height, bulk and scale of the additional building works are appropriate.
[2]
The site and its context
The site is legally described as Lot 16 in DP 11991 and known as Nos 610-618 New Canterbury Road, Hurlstone Park. It is a regular shaped lot with frontage of 43.96m, site area of 2539m2 and falls from the north-western (front) corner to the south western (rear) corner by approximately 2.5m.
The site contains a mixed use development that is nearing completion which has been constructed in accordance with the original consent as modified through both modification of the original consent and changes made through the grant of a construction certificate and with other changes that are either sought through the current modification. The building contains two basement carparking levels, commercial shopfronts, vehicular access and pedestrian access at ground level with four levels of apartments above. The extent of changes sought is addressed below.
Adjoining the site to the west and fronting New Canterbury Road are two single storey semi-detached dwellings with a recently completed five storey mixed use development adjacent to those dwellings. To the east of the site is a two storey commercial building with a vacant site at the corner with Duntroon Street currently being redeveloped as a mixed use hotel/residential building.
To the rear are a number of single storey detached dwelling houses that front Woodside Avenue. Development on the opposite side of this street and to the south of the site is primarily single storey dwellings and the land to the south is zoned R3 Medium Density Residential and is subject to an 8.5m maximum building height development standard.
[3]
Background and the proposal
The then Canterbury City Council granted conditional consent to DA-533/2012 on 13 December 2013 (original consent). That consent authorised demolition and construction of mixed use development with basement parking and strata title subdivision.
Of particular relevance to the application is condition 9. That condition is in the following form:
9. The development being carried out in accordance with the plans, specifications and details prepared by Zhinar Architects Pty Ltd, marked Job No. 8175, Drawing Plan No. DA-C-00 to DA-C-16, Issue D, dated 13 November 2013, as received by Council on 14 November 2013, except where amended by the conditions specified in this Notice and the following specific conditions:
9.1 The number of storeys to be a maximum of five across the whole of the development. This is to be achieved by lowering the basement level or deleting apartments (or part of apartments on the fourth floor) to fully achieve the five storey maximum across the development, together with any consequential design changes to the parking and any other ancillary matters.
9.2 The rear facing balconies along the southern elevation of the proposed development shall be reduced in size to minimise potential privacy impacts on adjoining residential development as shown on the plans marked 'A' and 'B' attached to this consent. Details of compliance with this condition shall be provided with the application for the Construction Certificate.
9.3 At third floor level fronting New Canterbury Road, the balconies and associated balustrading shall be setback 2.5 metres from the front street alignment. Details of compliance with this condition shall be provided with the application for the Construction Certificate.
9.4 All rear facing balconies along the southern elevation of the proposed development shall be provided with fixed privacy screens 1.5 m in height (or alternatively located on top of planter boxes to achieve a height of 1.5 m above adjacent balcony floor level to prevent direct overlooking into adjoining residential development. Details of the privacy screen measures, including colours, materials and fixing details shall be forwarded with the application for the Construction Certificate.
9.5 The basement level 1 shall be amended in design to ensure that a minimum of twenty (20) bicycles spaces are provided to service the total development. Details shall be provided with the application for the Construction Certificate.
The original consent was modified by the council on 10 July 2014. According to the assessment report included behind Tab 20 in Exhibit 4, the proposal involved:
Deletion of condition 9.1 to allow for six storeys (including the basement) on the site;
Expansion and reconfiguration of the basement level. Basement 2 will increase from 45 to 63 car parking spaces and Basement 1 will be enlarged to accommodate additional storage space. This will result in an increase of 11 car parking spaces (8 additional residential spaces, one additional residential visitor and two additional commercial spaces). A total of seven car parking spaces shall now be accessible as per the Australian Standards;
Modification of the apartment layout;
In total, there is an increase of three units and 19 car parking spaces within the approved building envelope.
The notice of modification issued by the Council in relation to that modification application deleted conditions 9.1 and 9.2 of the original consent conditions and retained 9.3 and 9.4 which have been renumbered as 9.1 and 9.2 in the modified consent. The approved plan, which appeared behind tab 22 in Exhibit 4 provide for two basement car parking levels, three commercial tenancies with pedestrian access and vehicular access fronting New Canterbury Road and residential apartment at ground level and four levels of apartments above. Those plans would still require modification, in particular to set back the balcony of the third floor level by 2.5m and through the addition of privacy screens to the rear facing balconies.
The proposal, as defined in the Statement of Environmental Effects prepared by Mr A Calandine, a town planning expert in these proceedings, seeks to further modify the original consent by carrying out alterations and additions to the approved and as built mixed use building on the land by:
Expanding the basement car level comprising 13 additional parking spaces in basement one and two for a total of 134 spaces.
Providing one additional residential storey on top of the approved building to create a new floor containing 10 new residential units comprising:
4 x 1 bedroom units;
4 x 2 bedroom units;
2 x 3 bedroom units.
The additional storey results in part of the building encroaching the 18m building height development standard and the issue is discussed later in this judgement.
Following the site view, when it became evident that further changes had been made during the course of construction of the proposal, the applicant prepared further amended plans, exhibit G, that reflect those changes.
As part of Exhibit G, the applicant provided a list of all modifications sought under this application. That includes the changes to the basement car parking levels and the construction of the additional storey as outlined above, changes to windows in units 12 and 18 from glass blocks to translucent fixed glazing, balcony louvres changed to laser cut patterned aluminium powder coated screens on level one, two, four and five, extension of the planter box and privacy screen to unit 23, blade wall extension to units 49, 50, 53 and 54, removal of roof cover to balcony of unit 28, change from metal roof to concrete roof to fourth floor and non-trafficable area at fifth floor.
There is no evidence of the extent of changes that have occurred through the grant of the Construction Certificate other than the applicant submits that the development as built, apart from the changes noted above to windows, privacy screens and blade walls were all incorporated into that certification.
There are no plans that are before the Court that reflect the changes required under condition 9.1 of the original consent and therefore, the comparison of the modification application must be made taking into account the effect of those changes.
The main changes that flow from condition 9.1 were the requirement to reduce the height of the building to five storeys. That was to ensure compliance with the planning controls in place at the time. The additional building height arose from that portion of the basement levels of the building that extended above ground level so as to be considered an additional storey. The condition contemplated two options to reduce the height; the first was to delete apartments from the top floor of the building and the second to increase the extent of excavation of the basement levels.
Other changes required the reduction in size of the rear facing balconies to minimise potential privacy impacts on adjoining residential development and provision of fixed privacy screens 1.5m in height (or alternatively located on top of planter boxes to achieve a height of 1.5 m above adjacent balcony floor level) to prevent direct overlooking into adjoining residential development. Details of the privacy screen measures, including colours, materials and fixing details were to be forwarded with the application for the Construction Certificate; provision of a 2.5m setback of the balcony on the third floor and amendment to the basement level 1 to ensure that a minimum of twenty (20) bicycles spaces are provided to service the total development.
It is on the basis of these changes that the modification application must be assessed against the proposed modification application.
[4]
The planning controls
The site is zoned B2 - Local Centre under the provisions of Canterbury Local Environmental Plan 2012 (LEP). New Canterbury Road forms the boundary with Inner West Council so land on the opposite side of the road is subject to the provisions of Marrickville Local Environmental Plan 2011.
According to the council's Statement of Facts and Contentions, Exhibit 1, that land is subject to development standards that restrict building height to 14m and floor space ratio (FSR) to 1.75:1.
Clause 2.3(2) of the LEP requires that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Whilst the application to modify the consent is not a "development application" the objectives of the B2 zone are:
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
The development, being a mixed use development, is now prohibited in the B2 zone and the provisions of clause 6.7 are not enlivened to allow the development as proposed.
Clause 4.3 of the LEP contains a development standard that limits the height of buildings on the site to 18m. The LEP does not contain any limitations to FSR.
The original consent was lodged at the time the provisions of Canterbury Local Environmental Plan 138 (LEP138) applied to the site and determined under the savings provisions of clause 1.8A of the LEP. Significant weight was given to the LEP when determining the application which exceeded height, setback controls, FSR and density provisions contained in the development control plan relevant to LEP 138.
[5]
The issues
The contentions in the case are whether the modified development would be substantially the same as that approved under the original consent; whether the height of the building, that exceeds the 18m development standard and its bulk and scale is excessive; whether the principles of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG) are met and whether the modification application would be in the public interest. Contentions regarding additional information were addressed through the hearing by submission of the amended plans.
[6]
The evidence
The hearing commenced on site with a view taken. Evidence was heard from a number of residents, all of whom objected to the proposal. The issues raised are summarised as follows:
Existing building already adversely impacts the amenity of the adjacent residential properties and the additional floor will exacerbate these impacts;
Hurlstone Park is a federation area with heritage features and the development is out of character and not sympathetic to neighbouring properties;
Bulk and scale of the development is excessive;
Development is proximate to heritage buildings and should respect that character;
Concerns that proposed landscape buffer will not achieve appropriate heights;
Inadequate open space and green space provided;
Development will be visible from adjacent properties and from further to the south;
Increase in solar impacts adversely impacting adjacent properties;
Development has adversely impacted ability to connect to internet and additional height is likely to exacerbate that problem;
Additional dwelling numbers will require additional air conditions units that will add noise and result in increased demand for on street parking;
We have been opposing this development for 4 years, fought to the reduced height and therefore the additional level is unacceptable.
Expert town planning evidence was heard from Ms A McCabe for the council and Mr A Calandine for the applicant with Mr M Harrison providing urban design evidence for the applicant. They prepared a Joint Report, exhibit 2.
Ms McCabe has summarised the changes in that exhibit as follows:
An increase in the number of units from 60 to 73, a 21% increase;
An increase in the number of parking spaces from 102 to 134, a 31% increase;
An increase from a five storey to six storey building;
An increase in height in the order of up to 2.9m;
An increase in floor space from 5,367.19m2 to 6137.19m2 (based on figures provided on applicant's plans), a 14% increase;
Changes in the appearance and materiality of the building;
The development to be modified results in a 100mm to 800mm breach of the 18m height of building development standard across the whole of the roof plane and a future estimated 1.9-2.09m breach at the lift overruns whereas the original building complied with the development standard.
Mr Caladine had carried out a similar assessment however based his assessment of the modification proposed against the modified consent rather than the original consent.
The experts do not agree whether the modification would result in a development that is substantially the same. Ms McCabe says that it is not and Mr Caladine says it is. These experts do agree that the proposal results in the development changing from one that complied with the only relevant development standard, maximum height of buildings.
Ms McCabe says the additional height, particularly at the rear of the building is viewed from the lower scale residential properties and will result in additional shadowing that she considers to be minor however the additional level is not anticipated by the planning framework and has potential to adversely impact upon the future development of the adjoining lands. The scale relationship becomes more disproportionate and provides for a lesser environmental planning outcome than achieved under the original consent.
Mr Harrison says that the development would not be visible to anyone standing in the rear yard of No 8 Woodside Avenue (the closest dwelling to the site). He agrees that the sixth floor may be visible further afield in the neighbourhood however the further away the view is, then the less impact it will be. He says there will be a negligible increase in overshadowing caused by the proposal that would be imperceptible to the casual observer and the impact would be for a short time during the winter months. He has similar views in relation to overlooking saying that it would not be possible to see into No 9 Woodside Avenue from the additional storey.
At the site view, all experts agreed that the additional storey would be visible when standing within Woodside Avenue on the southern side of that street and from the adjacent dwellings. It was also agreed that it would be visible from various vantage points along New Canterbury Road. The Court observed other recent buildings in the vicinity of the site including a 7 storey building to the east and a number of 5 storey buildings including one it was taken to the rooftop to observe the extent of works proposed.
It became apparent that none of the experts had viewed the site from this perspective and the Court raised the issue of view impacts. Currently the rooftop terrace that services the apartments within that building enjoy panoramic views. Ms McCabe says that the additional sixth storey proposed would significantly impact the view. Mr Harrison says the panoramic views including minor views to the Sydney City skyline would be impacted however because the view is panoramic an 18m high building would have some impact. Mr Caladine said that because the land immediately adjoining between the site and the terrace could be redeveloped under the 18m height control that there would be no view impacts.
With regard to SEPP65 and the ADG, Ms McCabe says that the addition of a sixth level is inconsistent with the policy directions for New Canterbury Road because it fails to respond to the purpose and limits of the 18m height control. The height control allows for residential levels, generous floor to ceiling for commercial level and plant and potential communal open space on the roof. The ADG nominates a floor to floor height of 3.1m for residential development and even with a 3.7m floor to floor for commercial and a 2 metre allowance for roof and plant, this would equate to a five storey building that would comfortably meet the control. The proposed development does not provide additional useable communal open space and seeks to add density without improving the amenity outcome. The desired future character is for five storeys and not six and accordingly the building fails to respond to this.
[7]
Conclusion and findings
The application is lodged pursuant to the provisions of s96(2) of the Environmental Planning and Assessment Act 1979 (EP&AAct) which is in the following form:
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
In this case, the provisions of s96(2)(b) are not relevant and I am satisfied that the provisions of s96(2)(c) have been met. The primary test pursuant to s96(2)(a) is whether the development is substantially the same as the development for which consent was originally granted.
If the application fails this jurisdictional test, it must fail, even if I determine that the modified plans merit approval. Whilst the applicant argues that the council's statement of facts and contentions do not provide clarity as to why it contends the development is not substantially the same, the test is one for the Court as the terms of subclause (a) require the consent authority to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.
In accordance with the findings of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSW LEC 8, the applicant for modification bears the onus of showing that the modified development tis substantially the same.
Guidance on this assessment is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280 where, at paras 55 and 56, Bignold J described the process for consideration of proposed modification of development as follows:
55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development.
56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved.
A quantitative assessment, based on the evidence requires consideration of the changes that are proposed without regard to the changes that have been made through subsequent modifications and the grant of construction certificates. The comparison is of the original application against the matters that are the subject of the application being:
an increase in the number of apartments (Original 60 apartments now 73, modification adds an additional 10 units);
increase in the size of and the number of carparking spaces provided in the basements and change to layout (Original 102 spaces now 134, modification adds an additional 13 spaces);
deletion of the 2.5m setback to third level balcony that was required by condition 9.3 of the original consent (now erected to the boundary);
construction of an additional storey and associated increase in the number of storeys from 6 to 7 due to the height of the basement above what was existing ground level at the time the original consent was granted; increase in size of some of the rear facing balconies as this was not carried out in accordance with the requirements of condition 9.1 that required the building to be reduced in height to five storeys;
deletion of any bicycle parking spaces within the development (20 spaces required under condition 9.5) i.e. the building would be a six storey building as constructed taking into account the basement protruding above ground level;
changes to windows and columns;
change to front balcony screens from louvres to laser cut aluminium patterned screens.
[8]
The applicant's submissions
Mr Wright, for the applicant, submits:
A rational quantitative and qualitative analysis demonstrates that the proposed development is substantially the same as that approved under the original consent.
Applying a quantitative is assessment the subject application increases the number of residential apartments by 10 from 63 to 73. An increase in GFA of 15.874%. There is no change proposed to the number of ground floor commercial tenancies or to the amount of commercial/retail GFA. It should be noted the original consent and the subject application did not specify the nature of commercial or retail uses for the ground floor. It would be surprising if they did. There is no material change in the mix between residential and commercial uses albeit that there is some increase in residential GFA. The development occupies the same footprint. The existing building setbacks and landscaping do not change. The more efficient basement design allows for an additional 13 car parking spaces without increasing the size of the basement floor plate. The proposed additional storey and lift overrun is encroached marginally above the 18m height control. This proposal complies with the Council building height plane and the building separation controls in the ADG. It should be noted that the application must be determined in accordance with the controls at the date the application was lodged.
In making a qualitative assessment he says the bulk and scale, form and height does not substantially change. These considerations demonstrate most clearly that the subject application does not radically transform the approved mixed use development. No traffic contention is raised nor is there any suggestion or evidence that any increase traffic would radically transform the relationship between the development and the local road network. On the contrary, the Council officers have expressed the view that the increase in offstreet parking is a positive contribution.
As to building height, Ms McCabe's evidence attempts to construct a proposition that an essential and material element of the consent was the height and number of storeys approved. This appears to the centrepiece of the council's assertion that the development is not substantially the same. Her suggestion that the impacts of the original proposal based on compliance with the policy framework should not be revisited is erroneous and the Court is not restricted in its consideration in this way. That is because condition 9.1 as originally imposed, could not prevent future consideration of an application under s96 (2).
The condition was most probably invalid because it purported to require a redesign of the building hence deferring an essential matter. Whilst the condition was imposed at the behest of IHAP, it plainly did not accord with the views of council's officers. The condition was deleted as a consequence of the determination of the first modification application. The officer's justification for deleting condition 9.1 appears at Exhibit 4 pages 220 to 221. This passage should be read in full but the conclusion is telling "this proposed part five part six storey building is an acceptable design outcome having regard to the topography of the site. The proposed development will fit within the desired future character and is considered acceptable in the circumstances."
As recent surrounding development along New Canterbury Road clearly shows, the desired future character identified in 2012 is now the existing character of the area. It is Mr Harrison's evidence that the built form, mass and scale of the proposal improve the subject development. The building reads as five storeys from the rear. It meets the aims, objectives and controls within the DCP in particular in relation to rear building height plane controls. He notes the Council officers took the view that a 5 to 6 storey building on the site was otherwise assessed as compliant with applicable controls under SEPP65.
Of particular relevance with the views expressed by the officers concerning context, scale, built form, density, in that the proposed development was in keeping with the desired future character of the area, compliant with the height standard specified in the LEP and the built form had been appropriately modulated and articulated to reduce any appearance of bulk from the street view and adjoining development with no change to the building depth that was originally approved under the original consent.
Mr Harrison's evidence is that there is no material change and certainly no radical transformation of the relationship between the subject proposal when compared to the originally approved development and the properties to the rear at the zone boundaries. The Council's building height plane control in itself addresses the desired relationship to properties at the zone boundary and gives voice to the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117.
[9]
The Respondent's submissions
Mr Jackson submits:
Having regard to the facts and circumstances of this case, there is no jurisdiction to approve the s96(2) application, because, if modified as proposed, the modified development will not be substantially the same as the development the subject of the original consent. That consent is for the demolition of existing improvements and construction of a five storey mixed use development with three shops at ground level, including residential dwellings also at ground level with residential above, totalling 60 dwellings with basement car parking for 102 vehicles over two levels.
In Vacik the Court held that, in assessing whether a consent as modified will be substantially the same development, one needs to compare the before and after situation. A comparison of the before and after situation is, in the appeal before the Court, distinctly set out in Annexure B to the joint report. The applicant's planner, Mr Caladine, agrees with the Schedule B changes.
The changes identified in that schedule, together with the circumstances at the date of granting of the consent are such as to lead the Court to conclude that the modified proposal is not essentially or materially the same as the development the subject of the consent as first granted.
Even though the original consent, if modified, will still be for a mixed use development, this is of itself insufficient reason to justify modification. The comparison of the before and after situation referred to above also "... Involves an appreciation, qualitative, as well as quantitative is, of the development being compared in their proper context, including the circumstances in which the development consent was granted ...". See Moto Projects (No. 2) Pty Ltd v North Sydney City Council [1999] NSWLEC 280.
The comparisons are those set out in the table at Annexure B of the joint report. The extent of those changes is not insignificant. The changes result in a development, if modified, not being essentially or materially the same as the development the subject of the original consent. Any changes to the development the subject of the original consent affected by the modification approval of 10 July 2014 are irrelevant in respect of the tasks to be undertaken pursuant to s96(2)(a). The circumstances of this matter at the time of granting the original consent included lengthy and detailed consideration is of the impact of the height, bulk and scale of the building generally and in particular from the rear of the buildings in Woodside Avenue, which is at the R3 Zone interface. The relevant height control in the R3 Zone is a maximum height of 8.5m and was the subject of particular IHAP discussion.
It was an essential element of the grant of the original consent for the proposed development to be five storeys across the site. Further, the evidence of Mr Potts on the morning of the first day of the hearing was that the residents at the rear of the site were always concerned about height, and that the Council supported their position that the proposal be five Storeys and that Mr Potts was happy with that outcome. He had previously addressed the IHAP meeting.
The evidence establishes that limiting the height of the proposed building to 5 storeys across the site was an essential element of the consent at the time of the grant of consent.
The application for modification now provides for six storeys across the whole of the development, which breaches the 18m height limit pursuant to the LEP.
The proposed modification is both qualitatively and quantitatively different to the original consent and if modified will result in the consent as first granted not being substantially the same within the meaning of s96(2)(a) of the EP&AAct.
Further, the focus of the collegiate body in the assessment of the development application was to achieve a development on the site having a built form of five storeys across the development. This was a critical element in the assessment process and is a very relevant consideration in the assessment of the modification application for which the court is entitled to give significant weight.
Further, the onus is on the applicant to establish jurisdiction. The applicant has failed to do so. Its methodology of assessing aspects of the qualitative changes is flawed, as it appears to make a comparison between the original consent and the modification of 2014 which is an incorrect approach. Further, the evidence establishes the applicant's planner came to his conclusions in the joint report without making a comparison of the before and after, namely comparing the original consent as against the proposed modification drawings. He indicated in evidence that he had not seen nor considered the Issue G drawings dated 14 March 2017 irrespective that those drawings were prepared by the applicant's architect annexed to the joint report which is dated 3 April 2017 and he had made no assessment of the changes to the built form 'approved' against 'as proposed' pursuant to the s96 application and as built. He incorrectly assumed that the 'before' and 'after' comparison was based upon the stamped drawings the subject of the original consent without any consideration being given to condition 9 of that consent.
The applicant's qualitative assessment does not make any, or sufficient, reference to the circumstances as at the date of the grant of the consent relating to one of the essential elements of the consent, namely to achieve a five-storey development to address bulk, scale and height, as reflected in condition 9.1.
It is also a relevant circumstances that, at the date of the grant of the original consent, the proposed development was prohibited development pursuant to the LEP but nevertheless a saved application pursuant to the savings provisions in that plan. At the date of the grant of the original consent, the applicant accepted and embraced, on the one hand, the planning regime in the LEP 138 to rely upon permissibility, but turns its back in a planning sense on the controls pursuant to LEP 138 and the then corresponding DCP. The evidence establishes that the proposed development at the date of the grant of the consent, while permissible pursuant to LEP 138, did not comply with numerous and substantial provisions of the then relevant DCP. Council, nevertheless, assessed the application on the basis of the suite of controls in LEP and DCP 2012, which controls call up and 18m height limit with Council wishing to achieve a five-storey built form. It did so on the basis that those suite of controls as at the date of the grant of the consent, gave a clear indication of Council's strategic intent for a five-storey form of development. This was a proper planning balance.
Having regard to the evidence and the submissions made and undertaking both a qualitative and quantitative assessment of the modification application against the form of the development approved under the original consent, I am not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.
That is because the original consent provided for changes to be made to the building from that proposed in the original development application. Those changes are clearly articulated in condition 9 of the original consent. I consider that those changes, which involved a decrease in the height of the building so that it was a maximum of 5 storeys was an essential element of the council's determination of the application. Those changes were imposed to ensure the development would comply with the planning controls that applied to or had come into effect for the site and were consistent with the expectations of the community despite exceeding many of the controls contained in LEP138. They also were imposed to ensure the bulk, scale and visual impact of the development was appropriate.
Despite the fact that the council had placed significant weight on the development standards contained in the LEP, it did not approve a building that breached the building height development standard or the five storey controls contained in the DCP. Therefore, in both quantitative and qualitative terms, the increase in the number of storeys and building height is not substantially the same as the focus of the original consent was that the building height was compliant with the five storey control under the DCP and that the resultant impacts of the building were reduced accordingly, particularly the impacts when viewed from the south and the amenity of those adjacent residential properties.
Other changes proposed also contribute to qualitative changes, in particular the additional bulk added by proposed changes to the front building elevation through increased setbacks and the provision of additional screens that, materially affect the character of the building. Whilst I accept the evidence of the experts that those changes are desirable from an urban design perspective, they go away from the original intent of the consent that sought to constrain the building form and limit its impacts.
For these reasons, I am not satisfied that the development would be substantially the same development for which the consent was originally granted and the applicant must fail.
If I am wrong in the conclusion that I have reached on the jurisdictional test arising under s96(2), I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.
Having regard to the expert evidence, I agree that the proposed changes to the New Canterbury Road façade are appropriate and that there are no adverse impacts from the changes detailed at [15]. There is no traffic evidence in relation to whether it is appropriate to increase the number of parking spaces and therefore I accept that it is based on the concerns of residents in relation to overflow parking impacting on the adjacent residential streets. The loss of bicycle parking is an adverse outcome and should be reinstated.
The main issue relates to the additional storey and the increase in building height and I am not satisfied that in the form proposed it would represent an appropriate built form outcome. That is because the additional bulk and scale of the building would be evident particularly from the south and also along Ne Canterbury Road. Whilst the solar impacts of the additional height are minimal the visual impact is not. It became apparent during the site view that this additional height would also impact on the views currently enjoyed from the recently completed mixed use building to the west of the site. I do not accept Mr Caladine's evidence that the development would not have any adverse view impacts from the rooftop communal open space. The additional floor would impact on the views presently enjoyed and no thought had been given to this issue.
For these reasons, I do not consider that the additional storey in its current form merits consent.
The Orders of the Court are:
1. The appeal is dismissed.
2. The modification application that seeks to modify development consent 533/2012 by expanding the basement car park level, provide an additional level of residential accommodation and modify the approved strata title subdivision plan to incorporate the additional units and the associated carparking spaces is refused.
3. The exhibits, other than exhibits A, G and 1, are returned.
Commissioner Sue Morris
[10]
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Decision last updated: 16 May 2017
The Exhibit G plans do not reduce the height of the building to five storeys through either the increased excavation of the basement nor the deletion of units on the top floor, nor do they reduce the size of all of the balconies as required along the southern elevation as they reflect the modified consent. Some balconies are reduced in size, some are deleted whereas others have been increased in size. Planter boxes have been provided along the edges of most balconies however not all. Screens are provided along the top of those planters. The balcony to the third floor has not been setback 2.5m it remains adjacent to the front property boundary. No provision for bicycle parking has been made within either basement carparking level.
The subsequent changes made along the way since the grant of consent are not relevant to my determination of the matter of whether the development as proposed to be modified is substantially the same development as that approved under the original consent.
Mr Harrison says the relevant considerations are setbacks and building separation; building height; floor to floor height; and increased density and amenity. He says the ADG has a guide for building separation of 12m for four storeys and 18m for 5 to 8 storeys between habitable rooms. The neighbouring residential zone has a height limit of 8m which would mean a building could be three storeys (two floors plus an attic). Therefore the building separation should be 12m under the ADG and another 3m should be added for the higher density zone and neighbouring lower density zone. That is a building separation should be 15m under the ADG or 7.5m setback from the rear boundary. The proposed sixth floor is setback 20.465m at its closest point to the rear boundary. Consequently, the proposal has far greater separation and setback to the rear than the ADG stipulates.
In relation to building height, Mr Harrison says the ADG addresses how built form controls should be made, how a street fronting six storey development might transition to a 2 to 3 Storey development to the rear by having an intervening five-storey building. The Canterbury DCP requires a 45° angle for the transition - this results in a more gentle scale transition than the ADG diagram. The proposal complies with the DCP and therefore is well within the scale transition indicated as appropriate by the ADG. Similarly, he says both documents call for a stepped down in building height at the boundary between two height zones for which the proposal complies. In terms of the 18m height control, he says the proposal has no communal open space on top of the sixth storey and therefore that is irrelevant to determination of this application. The ADG refers to plant but not lift overrun is. Plant usually relates to air-conditioning plant which can take up a significant volume of space. It is common urban design practice in response to the ADG to ignore lift overrun is in terms of height controls because lift overruns usually comprise a very small proportion of the roof area and are usually not readily or significantly visible from surrounding areas. Such practice of ignoring lift overrun is in terms of height control is common in the Canterbury LGA. Therefore the number of storeys in relation to the 18m height limit need only be the result of floor to floor heights.
The ADG addresses floor to ceiling height by saying that floor to ceiling for ground floor should be 3.3m and four residential storeys 2.7m. It also says that the first floor should be 3.3m to promote flexibility of use, however, in practice, this is rarely required by Council is because apartment design and commercial use design are very different layout requirements. In very highly traffic streets such as for traffic lane highways, some councils require commercial use on the first floor so that apartments are well above the traffic of the street. The ADG allows 400mm for structure, services, set downs and finishes. The height of a six storey building under the ADG would be 19.2m. However, it is reasonably common in the construction industry to have 200mm the structure, services, set downs and finishes which results in 18m. So under the ADG combined with standard construction practice, it can be expected to that an 18m building height would result in a six storey building. The proposed sixth floor has 2.91m floor to floor which is consistent with the four storeys below that have already been constructed. It would be unreasonable for the sixth floor to be different to the floors already constructed.
Mr Harrison says a reasonable general principle for increased density is associated with increased amenity. The proposed sixth floor apartments will have increased amenity compared to the lower levels in terms of outlook and increased distance from traffic along New Canterbury Road. The development will benefit from increased amenity generally along New Canterbury Road as more ground level shops are built with the shop top housing that is being progressively developed in line with the current planning controls for the street within walking distance of the proposal. The three shops on the ground floor will benefit by the increased patronage from the increased population of the development caused by the proposal. For the relatively small increase (16%) in the density of the development caused by the proposal he considers that it is not necessary to increase the provision of communal open space and that the proposal is well within the guidelines of the ADG.
Ms McCabe cites recent amendments made to the DCP which took effect in January 2017 which she says has reinforced the policy framework that applies to the site and says the proposed modifications would be contrary and inconsistent with the policy approach that envisages buildings of between three and five storeys. She says that development that seeks to claw back, amendments undertaken in the course of an assessment, in response to a policy framework and environmental impacts, through the provision of modifications that vary development standards where such variations were unlikely to be some supported in the assessment of the original development application undermines the integrity of the planning framework which is not in the public interest.
Mr Harrison says that the matters raised by objectors do not warrant refusal of the application. The proposed part additional sixth storey seeks to provide 10 additional residential units which is consistent with the relevant aims of the LEP in that it promotes a variety of housing types to meet population demand; has been designed to have no impact upon the amenity of surrounding properties or the streetscape; will assist with the transitional character that this neighbourhood precinct is undergoing; encourages a vibrant business centre by seeking to increase residential densities around existing centres and public transport and will form part of an approved mixed use development and not detract from the economic viability of the Hurlstone Park business precinct. The proposal will have no amenity impacts for occupants of adjoining properties as those sites will be redeveloped to a more significant height and bulk and associated scale, which is a consequence of the planning controls that apply in a B2 local centre zone. With a growing population, the type of change being witnessed in Hurlstone Park will continue to promote a more sustainable city. The proposal is consistent with the vision and objectives of the DCP and can only have positive outcome for the public domain and the locality in general. He considers the proposed development to be in the public interest as it will continue the process of revitalisation of the Hurlstone Park business centre.