Jinyan Group (Australia) Pty Ltd v Parramatta City Council

Planning framework

1. Pertinent statutory and planning policy instruments are introduced here and attended to further, as relevant, in the consideration of the issues below.
2. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP 65') and the associated Apartment Design Guide ('ADG') apply to the proposal.
3. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ('SEPP Vegetation') comes into consideration, having regard to extant vegetation.
4. Residential flat buildings are permissible in the LEP's R4 High Density Residential zone, within which the site is located.
5. The LEP applies a maximum building height of 17.5m to the site, which the proposal contravenes. A written request from the applicant, pursuant to cl 4.6 of the LEP, seeks to justify the contravention and is considered below. There is no floor space ratio (FSR) control applying to the site.
6. Hornsby Development Control Plan 2013 ('DCP') applies to the site and is considered, pertinently, below.

Proposal

1. The proposal provides for a total of 78 residential apartments (2 x studio, 14 x 1 bedroom, 53 x two bedroom, 9 x three bedroom) in four separate (apparent) "buildings" above a common area of underground basement parking. The buildings vary in height and exceed the LEP height of building control of 17.5m by up to 3.5m. The plans before the Court (see [18] et seq for notes on amendments) indicate a proposed gross floor area ('GFA') of 6828m2 and FSR of 1.74:1. A total of 86 basement car parking spaces, 46 bicycle spaces and two motorcycle spaces are proposed on two levels. There is a separate waste storage area at the lower ground level and space allocated for waste collection.
2. The two northernmost buildings (Building A to the north-west and Building D to the north-east) are separated from the southern buildings by a walkway (stepped to deal with the site gradients) and landscaping. There is an area of communal open space proposed, in a central area, between the two northern buildings. The two southernmost buildings (Building C to the south-east and Building B to the south-west) have less separation between them. Perimeter landscaping is proposed in communal space, but apartments interfacing with finished ground level commonly have an area of private open space terracing out from living areas. There are also areas of communal open space at the roof level. Significant earthworks and tree removal, along with compensatory landscaping, is proposed and is considered in evidence.

Lay submissions

1. In accordance with regular practice, this matter was initially subject to a conciliation conference conducted under the provisions of s 34 of the Land and Environment Court Act 1979 ('LEC Act'). I had presided over this conference under the delegation of the Chief Judge. Obviously, as the parties are now involved in a contested hearing, the conference did not result in an agreement. However, at the conference objections were heard from a number of local residents. The parties consented to this lay evidence from the conciliation conference forming part of the evidence in these proceedings. Agreed notes are in evidence (Ex 8).
2. It is also noted that after the Court granted leave to amend the application on 1 November 2019, Council notified the amended plans to neighbours. Further submissions were received and are summarised in Ex 3 (par 35). In addition, leave was granted to hear further lay evidence from one person at the commencement of the hearing.
3. Together the concerns raised in lay submissions can be summarised as follows: poor interface between the higher density zone and the low density area to the east and north, excessive building height and bulk, tree loss, inadequate setbacks, visual privacy impacts including inadequate screening, overshadowing, parking, drainage concerns (including in regard to use of an easement created on the basis of an earlier development proposal), construction stage impacts.

Note on amendments to application and joint expert reports

1. There is some history of amendments to the appeal application. Of relevance here is that certain agreements arising between individual experts during joint conferencing (in accordance with par 26 of the Court's Conference of Expert Witnesses Policy) raised implications for other areas of expertise. That is to say difficulties arose in regard to inter-relationships across the expert disciplines (in this case relating to: urban design, arboriculture and stormwater management). While it may have assisted the Court had further cross-disciplinary evidence been gathered prior, I found it appropriate during the course of the hearing to hear joint evidence from the experts (across the disciplines) together. In the course of the examination of expert evidence during the hearing, and in further joint conferencing during breaks, the experts uncovered alternatives which the experts agreed would resolve certain issues more mindful of cross-disciplinary implications. At the conclusion of Day 2 of the hearing I made orders requiring plans be prepared which consolidated the agreed changes. The consolidated plans, which can be described as the "further amended application bundle" (and became Ex H), were filed on 24 February 2020 and supplemented on 26 February 2020 with amending stormwater plans.
2. I had also directed at the conclusion of Day 2 of the hearing that subsequent to its filing, the experts review the further amended application bundle and prepare expertise-related joint reports verifying the extent that Ex H accommodated the matters agreed in prior evidence, and itemising any remaining points in dispute. The further urban design expert report was filed on 27 February 2020. The further stormwater expert report ('FSWR') was filed on 28 February 2020. The further arboricultural expert report ('FAR') was filed on 28 February 2020.
3. This is a convenient point to note that during the final day of the hearing, the applicant requested that leave be granted to amend the application to rely on Ex H. Council did not object to the granting of leave subject to orders for the payment of costs thrown away as a result of the amendments. The applicant agreed with a costs order, as agreed or assessed, under s 8.15(3) of the EPA Act. I am satisfied that the applicant should be granted such leave.

Issues

1. The framing of the remaining issues in contention in this judgment, for the most part, follows that adopted by Council (or the respondent) in its Outline of Submissions ('ROS'), which was filed on 27 March. There are two jurisdictional issues which are considered initially. These relate to: (1) the contravention of the LEP height of building control, and (2) the contention that the application lacks owner's consent for certain relevant works. I can mention here that I find favourably in regard to both of them, which opens the door to the consideration of the merits issues. The merits issues are considered under three topics which I title as follows: stormwater management, neighbour amenity, and tree loss and landscape (all points of attention in lay submissions).

Jurisdictional issue - building height contravention

1. The proposal would contravene the maximum building height development standard in the LEP. The map associated with cl 4.3 of the LEP provides a base building height limit of 17.5m for the site, which is exceeded by parts of each of the buildings. Clause 4.6 of the LEP provides that consent may be granted for development even though it would contravene a development standard, and establishes preconditions for the exercise of that power. Conversely, there is no jurisdiction to approve development which contravenes a development standard unless the permissive powers available under cl 4.6 of the LEP are triggered (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [13]).

The jurisdictional test

1. Clause 4.6(2) of the LEP provides (relevantly): Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...
2. The facultative power in cl 4.6(2) is subject to the restrictions in cl 4.6(3) and (4): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained
3. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent: Initial Action at [14]. The first opinion is in regard to the applicant's written request, and whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. The written request is considered below.
4. I note here mindful of cl 4.6(4)(a) of the LEP, that there is no requirement for me to seek the concurrence of the Secretary (under s 39(6) of the LEC Act), but nonetheless I would mention that I do not see this matter as raising any matter of significance for State or regional environmental planning.

Clause 4.6 written request

1. The applicant's written request seeking to justify the contravention of the development standard was prepared by Dickson Rothschild and was dated 29 October 2019 (Ex E behind Tab 5).
2. The written request indicates height contraventions in accordance with Table 1 below.
3. The written request describes the contraventions as follows: "…the higher elements are the lift overruns that have a small area and are all well setback from building parapets. The more generalised building height variations are much lower and concern roof elements and balustrading associated with the roof terrace areas."
4. As indicated in Initial Action at [25], the applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the written request in order to enable, in this case, the Court to form the requisite opinion of satisfaction.

Compliance unreasonable or unnecessary in the circumstances of the case

1. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'), Preston CJ, summarised the common "ways" in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The written request commenced with an analysis of the first Wehbe way. That is, that the objectives of the standard are achieved notwithstanding non-compliance with the standard. The single objective of the standard as nominated at cl 4.3(1) of the LEP, is as follows: (a) to permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality.
2. The written request submits that: 1. In regard to site constraints, the amalgamation of blocks embodied in the DA means the site is more suitable for a large building. This amalgamation has allowed the more substantial contraventions (the lift overruns) to be well setback from neighbouring properties. 2. In regard to development potential, it is indicated that because of its proximity to Epping Town Centre, including the Metro Rail line, the area is earmarked for urban consolidation and capitalisation on infrastructure improvements; and that a "variation to a core control such as building height is more appropriate at this stage of the planning process as the infrastructure planned to accommodation growth is now in place".

Consideration

1. The larger relative site area, and capacity to locate the lift overruns some distance from boundaries, does alleviate otherwise problems with building height. Expectations in regard to development potential can also be recognised. The arguments put above demonstrate to my satisfaction that the objectives of the height standard are achieved notwithstanding non-compliance with the standard. Therefore, in accordance with the first Wehbe way, I accept the arguments in the written submission that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case.
2. The written request later examined the other ways summarised in Wehbe. I am satisfied in regard to the first Wehbe way. In this instance there is no need for me to go further on this particular question.

Sufficient environmental planning grounds

1. The written submission can be summarised as positing the following four factors as environmental planning grounds justifying the contravention: 1. building height variations are principally to accommodate communal roof terrace areas and associated access: "…the higher elements are the lift overruns that have a small area and are all well setback from building parapets. The more generalised building height variations are much lower and concern roof elements and balustrading associated with the roof terrace areas. "…(the) parts of the building over the building height control are not associated with additional density but rather improved building amenity. These elements of the building could be removed from the scheme and the building would comply or better address the building height control. This would be an inferior planning outcome." 1. The contravention would not affect the building's alignment with the intended visual character of the area because of: (1) site topography - with the lowest building level generally not apparent from the street, (2) intended retention of trees and extent of intended landscaping, and (3) building design/articulation, accommodating greater setbacks for upper two levels. 2. The contravention, of itself, would not bring unacceptable adverse amenity impacts on neighbouring properties due to privacy treatment of upper levels. 3. The contraventions assist in meeting planning objectives relating to urban consolidation and capitalisation on infrastructure improvements in the Epping Town Centre area, in a manner which provides appropriate levels of amenity for future occupants (ie via the roof level communal open space).

Consideration

1. I am satisfied that the written request demonstrates environmental planning grounds sufficient to justify contravening the height standard. The demonstration in the written request is sufficient to enable me to be satisfied with respect to cl 4.6(4)(a)(i). The determinative aspects are twofold: (1) the fact that the key purpose of the contravention is to deliver communal open space, which is additional to baseline requirements but would nonetheless clearly result in significant benefits to future residents (that is to say the roof level open space would not be able to be delivered without the contravention), and (2) the responsive design particulars of this roof feature (setbacks and landscaping) which prevent the roof feature of itself bringing negative effects.

Development in public interest because it is consistent with the objectives of the particular standard and the objective of the zone

1. On this question I note Council's submissions that the Court "has evidence of the public interest in the public submissions tendered (Ex 1, folios 541-603) and the resident evidence given at the hearing and tendered in Ex 8" (ROS, par 38). While I have a mind to this evidence in coming to the relevant conclusions here, I do need to emphasise the relative specificity of the test of public interest as applied in cl 4.6(4)(a)(ii). As put in Initial Action at [27], the test for me "is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out".
2. I now turn to the question of whether the development is consistent with the objectives of the zone in which the development is proposed to be carried out. The objectives of the R4 High Density Residential zone are, relevantly, as follows: • 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.

Consideration

1. The written request suggests that, through the exclusion of reference in the objectives to such otherwise relatively common items as "maintaining neighbourhood character" or the like; it should be taken that the zone objectives are relatively narrow and centred on the transformation of the locality to a higher density area which can meet changing housing needs. I do find that the zone objectives clearly emphasise that there is a central intention for this (hitherto low density) site and its environs. It is to change its physical form to a higher density residential setting which can provide new and varied types of housing in this particular locality (with its particular transport attributes). This proposal is entirely concerned with contributing to this change, and thus the development is consistent with the zone objectives.
2. On the basis of the above, I am satisfied that the development is in public interest because it is consistent with the objectives of the particular standard and the objectives of the zone. I am also directly satisfied that the development is consistent with the objectives of the height standard for the reasons cited above at [33].

Overall finding in regard to building height contravention

1. On the basis of the above, the written request made pursuant to cl 4.6 of the LEP, to vary the building height standard, is upheld.

Jurisdictional test - owner's consent

1. Council contends that the application cannot be approved as it requires works on adjoining land which do not have owner's consent (ROS, par 20). There are two points of attention: stormwater management works, and tree removal. I will consider the latter point first as it is the more straightforward.

Tree removal

1. Tree 62 was identified in the expert oral evidence during the hearing (and in prior expert reports) as a sizeable dead tree located on a neighbouring property. Because of its proximity to the boundary, and certain proposed earthworks and a retaining wall structure on the subject site, it was indicated by the experts as necessary that either root mapping be undertaken to further ascertain risks to the stability of the tree, or the dead tree be removed. There was no evidence of consent on the part of the adjoining owner for work on the adjoining land.
2. During the hearing, the experts, across disciplines, conceived certain modifications to the earthworks and retaining wall in the vicinity of the dead tree aimed at addressing the risk of instability. There was also an agreement that further root mapping occur. With respect to the documents filed subsequently: (1) Ex H did not account for the abovementioned modifications, and (2) the FAR did not make reference to further root mapping. The justification for both these events was the indication in the FAR that the dead tree had been removed. The suggestion was in the form that "RK (Russel Kingdom) has been advised that Tree 62 has been removed" (FAR, page 6).
3. Council's submission on the point was that owner's consent for the removal of Tree 62 was required on the basis of the following argument: "The Respondent submits that with no evidence to substantiate the fact of removal, the Court must consider the application before it and that is that Tree 62 exists and has not been removed. Further, because the Court has evidence before it that the Amended Application as proposed will have an impact on the stability of the tree, the Applicant is effectively seeking the Court's consent for the removal of that tree."
4. Given the ease with which the question of the continued presence of Tree 62 or otherwise could be answered, it did not seem to me in the interests of justice that this question remain open. In turn I granted leave for the applicant to provide urgent further evidence on the matter. A signed statement from the solicitor for the applicant including photographic evidence was filed on the day after my direction, demonstrating that Tree 62 had in fact been removed.
5. In the circumstances, there is no requirement for owner's consent to remove Tree 62. In turn, and with respect to Council's contention in regard to lack of owner's consent relating to tree removal, there is no jurisdictional impediment to approval of the proposal.

Stormwater management works

1. Council contends that the application seeks development consent for certain stormwater management works on land owned by Mr Chetus Chan and legally known as Lot 8 in DP285338 ('Chan land').
2. Certain facts are not in dispute, as follows.

• The stormwater management scheme adopted in the proposal includes stormwater detention on-site in the general environs of the lowpoint of the site (in a basin located at the site's north-east corner).
• Stormwater outflows from the detention basin, and otherwise, in this area of the site would need to flow out through the environs of the Chan land, eventually into the Council's stormwater management infrastructure downstream of the Chan land.
• The Chan land is not included in the site description as depicted in the DA form (Ex A, Tab 1).
• There is an easement for drainage over the Chan land which favours the site (Ex F).
• The application includes design particulars of "proposed" stormwater management infrastructure across the Chan land for the purposes of conveying the site's stormwater outflows to Council's stormwater management infrastructure located downstream of the Chan land.

Primary submission

1. My understanding is that Council's primary submission on this point is that the application should be construed as including the stormwater management infrastructure over the Chan land, and as there is no owner's consent, there is no power to consent to the application. The justification for Council's position, as I understand it, is based on: (1) the Statement of Environmental Effects (SEE) accompanying the application making reference to the said infrastructure works (ie over the Chan land) (Ex A, Tab 5, section 3.3); (2) the drainage plans accompanying the application particularising the works and indicating the works as "proposed" (eg Ex H, D03, Rev O); and (3) the fact of the tendering of the easement documentation (Ex F). The SEE provides as follows: "It is proposed to drain stormwater to an OSD tank located in the north-eastern corner of the basement, via an easement over No.22 Rockleigh Way to Council's infrastructure in Rockleigh Way. The previous approval involved formal agreements for stormwater. These signed easement agreements are attached for Councils' information."
2. The applicant submits that the application only relates to the site identified in the DA form and no owner's consent is required for works beyond the site. In the applicant's closing written submissions, Mr To refers to the previous approval over the site involving a similar development (residential flat building containing 76 units), particulars of which are included in Council's bundle of documents (Ex 1, Vol 2, Tab 14) ('previous approval'). The previous approval involved the same strategy as that currently proposed in regard to the on-flow of stormwater from the site into Council's stormwater infrastructure. That is, to flow from a detention system to the low point of the site through the Chan land to the Council infrastructure. The applicant indicates that a deferred commencement condition was imposed on that consent (Applicant's Closing Submission, par 53): "In granting the prior consent, the Council imposed a deferred commencement condition requiring the registration of easements for the proposed pipe network: condition A1. The easements were subsequently registered, and the consent has been confirmed by Council as operative." (Cross references to the uncontested evidence in regard to the above quote have been removed by the writer)
3. Mr To goes on to indicate (ACS, par 55): "… the applicant already has the benefit of consent to construct the pipes beyond the boundaries of the site."
4. It has some relevance here, as it does in the merits considerations below, that agreed without prejudice conditions of consent do assume future stormwater works on the Chan land.

Consideration

1. There is considerable caselaw in regard to the question of the definition of the land to which a development application relates. In Hillpalm v Tweed Shire Council [2002] NSWCA 332 ('Hillpalm'), Meagher JA finds at [12]: "What land an application "relates to" must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document…"
2. The position as is the case in this matter, in regard to consent conditions referring to stormwater works on land other than that referred to in the development application (ie the Chan land), is explained in Motbey v Hollis and Eurobodalla Shire Council (2003) 124 LGERA 227; [2003] NSWLEC 40 ('Motbey'). Here Cowdery J, after an analysis of various authorities, finds at [15]: "The decisions in Ligon and Hillpalm establish that if a condition of consent requires some act or permission which affects land other than that referred to in the development application, it does not affect the validity of the consent. It merely has the consequence that the consent cannot be acted upon until such condition is fulfilled."
3. Given the findings at Hillpalm, it seems to me that, in the circumstances of this case, there is no capacity for the SEE and engineering drawings, pointing to certain offsite works, to trump the clear intentions indicated in the DA form as to what land the application relates to. Motbey tells me that there is also a capacity to include consent conditions which would require some works on adjoining land, such as would be proposed here. I am satisfied that there is no requirement for owner's consent for works on the Chan land.

Further submission

1. Council further submissions are in regard to the purpose of owner's consent under the EPA Act, and here its relationship to the fact of the pre-existence of an easement for drainage over the Chan land. To assist, Council cites Sydney City Council v lpoh Pty Ltd (2006) 149 LGERA 329; [2006] NSWCA 300 ('Ipoh') in support of a submission put as follows (ROS, par 49): "…the only measure of control which an owner of land has over a development application which relates to their land is the grant of owners consent to the making of an application, with any further proprietary matters to be determined separately from the (EPA) Act."
2. Council points out that the owner of the Chan land (burdened as it is by an easement for drainage favouring the site) has made submissions against the application expressing concern about an increased impact of stormwater flows: "The requirement of owners consent is also, and most relevantly in this case, to ensure that owners are not prejudiced by having development consents associated with their land causing unwelcome increases, which in this case will be an increase in the concentration of stormwater and overland flow through and over the Chan Land. It is an increase which by Mr Chan's evidence was not previously considered in agreeing to the registration of the easement over his land."
3. My understanding is that Council is submitting here that the argued "unwelcome increases" (associating the phrase with Ipoh at [5]) in this case is in regard to stormwater flows within the easement-affected Chan land. The suggestion seems to be that, as a consequence of the "unwelcomeness" of future stormwater flows, a requirement for owner's consent would be aligned with the overall purpose of owner's consent.
4. The caselaw distinguishes considerations relating to the title of land and those associated with questions of environmental planning (eg North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470). It seems to me that the relevance of Ipoh to these matters is in its emphasis on this distinction. Ipoh provides at [2]-[3] as follows: "2 The question of whether a person can lawfully carry out development on land depends upon both (1) considerations associated with title to the land and (2) considerations associated with questions of environmental planning. 3 The granting of development consent by a council concerns (2) but not (1); and whether or not a person who is not the owner of land can carry out on that land a development, for which development consent has been granted, will depend on legal issues separate from those arising under the (EPA Act), such as the law relating to trespass, leases, licences, contracts and estoppel."
5. The fact of the easement over the Chan land is a matter of title rather than environmental planning. It can have no effect on the findings at [56]. In turn, and with respect to Council's contention in regard to lack of owner's consent relating to stormwater works over the Chan land, there is no jurisdictional impediment to approval of the proposal.
6. The question of whether the response to stormwater proposed in the application is satisfactory is a matter of environmental planning, and is considered as a merits issue below.

Merits issues

1. The experts providing merits-related evidence in this matter are as listed in the table below: Expert Expertise Engaged by N Dickson Urban design/planning Applicant J McCredie Urban design/planning Respondent J Bacha Stormwater Applicant A Rofail Stormwater Respondent R Kingdom Arboriculture Applicant G Paroissien Arboriculture Respondent

Stormwater management

1. At Contention 4 in Ex 3, Council itemised a list of concerns in regard to the adequacy of the then stormwater management plans. As indicated above, amending plans were included in Ex H. The joint position adopted by the stormwater experts after reviewing Ex H in respect of Contention 4 in Ex 3 relation to stormwater was favourable (FSWR, unpaginated, but numbering page 8 of 12): "Mr Rofail and Mr Bacha AGREE that the matters contained in this contention have generally been resolved by the amended plans and that minor concerns could be resolved by way of amended design at Construction Certificate stage."
2. Certain "non-standard" conditions were (relevantly) recommended by the experts in the FSWR (ibid).
3. In closing submissions, Mr Koprivnjak raised a number of concerns, which I will synthesise down to three. First was (related to submissions on lack of owner's consent for any future stormwater works on the Chan land) that the stormwater experts assumed there was a capacity to do works on the Chan land, and there was no capacity to approve such works. Second was in regard to inconsistency between oral evidence by the experts (Mr Rafail, in particular) and the position of agreement established in the FSWR. According to Mr Koprivnjak, this meant that the "Court could reasonably conclude that the experts have not finally determined the matter in a fundamental respect". Third is in regard to whether certain stormwater management conditions should be imposed as deferred commencement conditions or not.

Finding

1. The technical requirements in regard to site stormwater management are agreed by the experts. This involves certain works on site, including on-site detention, and particulars on how site outflows can reach Council's stormwater infrastructure. I am satisfied with the agreed approach which is documented for the purposes of consent conditions. Beyond the agreed technical approach, and into the question of off-site works which would connect the site's stormwater flows to the Council drainage infrastructure, I would refer to Motbey as quoted at [55].
2. But I agree with Mr Koprivnjak that there would be a merits concern, in regard to finality and certainty, should such an approach (reliance on "some act or permission" on land other than the site) be adopted in relation to a fundamental aspect of a development, such as on flow of stormwater. In this case I am satisfied that there is sufficient surety that the proposed works on the adjoining site can occur as a consequence of the easement for drainage favouring the site over the Chan land with respect to the area intended for the works. I note Mr Koprivnjak's reference to Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734; (1991) 73 LGRA 349. Here I believe I am following Mison (at 352): "Bignold J referred to authorities from which he drew the rule that the consent must be final and certain in order to be a consent. I agree with this view, and will not repeat the citation of authority. I note however that what are finality and certainty for consent purposes must be judged by a substance approach rather than the strict kind of approach which requires absolute precision."
3. Further, I am not convinced of the argument that the stormwater management scheme is not in the public interest because there is potential for the onsite detention (OSD) system to fail and thus cause unreasonable downstream effects as a consequence of overland flow. Respectfully, it is my view that it is reasonable to conclude that the experts have taken the technical aspects of the OSD system and overland flow into account in coming to their (positive) conclusions on stormwater management and their recommendations in regard to conditions.
4. It follows that it is reasonable to adopt the approach suggested by the experts in the FSWR and include the relevant stormwater management conditions as other than deferred commencement conditions. That is to say, while it would be commonplace to adopt a deferred commencement condition in instances where an easement was still to be secured, in this case there is already an easement for drainage in place. That is not to say that it is impossible for considerations associated with the easement (or to quote from Ipoh: in regard to "title to the land") to arise, but they are not concerned with the decision of this Court here.

Amenity impacts

1. In its closing submissions, Council referenced Contention 5 from Ex 3, and "public interest", as a contested merits issue. Here Council was particularly referencing the objecting submissions from neighbours (see [17]). Stormwater management, one of the issues raised by objectors has already been considered. Under this heading I will cover other significant issues raised by neighbours with the exception of the issue of tree loss, which for reasons which become obvious is considered in the next session.

Zone interface

1. The matter of the "interface" between high density and low density is one of the objections of neighbours (at [17]). This particular concern as I understand it is with the abruptness of the change in density under the LEP and its manifestation in the current DA. The current setting could be expected to contribute very positively in terms of amenity levels enjoyed at the properties adjoining the site. This is because of the low density nature of development on the site, the generous setbacks to boundaries and the existing trees often occupying this otherwise open area.
2. It is a matter of fact that government has determined to change the zoning of the site to high density residential. While the adjoining land to the site's north and south are also zoned for high density, it is also factual that the adjoining sites to the west retain their low density zoning.
3. However, the zoning provisions are now established and factually must provide the framework for the assessment of the current DA.

Bulk and scale, privacy, overshadowing, setbacks and building separation

1. Issues relating to building setback and building separation were no longer pressed by Council's experts, inferring satisfaction (Applicant's Closing Submission (ACS, par 2).
2. Further, when I examine the expert evidence in this matter there is consensus from the urban designers that the application "suitably responds to the constraints of the site", and that "visual and amenity impacts on the adjoining sites are acceptable" (Ex 4, page 8). The agreed evidence is in response to Contention 1(a) in Ex 3, which was as follows: "The excessive bulk and scale of the proposal does not adequately respond to the constraints of the site or applicable planning controls and results in visual and amenity impacts on the surrounding development."
3. This is important evidence. I understand it to encompass impacts relating to the building bulk and scale, privacy, and overshadowing. I assign significance to it, including with regard to the applicable DCP provisions, noting this stated opinion of both experts (having expertise in planning and architecture as well), but the Council's expert in particular.
4. While I have noted the concerns of lay objectors, New Century Development Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 ('New Century Development') is useful here where Lloyd J at [61]-[62] differentiates the weight to be given to lay evidence from that provided by experts, who can bring a capacity to evaluate more objectively against measurable criteria. Here I acknowledge detailed diagrams in regard to visual privacy prepared by the applicant (Ex H, DA-0-931 to 938), and accept that building setbacks at different height levels (having regard to the applicable height controls), appropriately attend to concerns in regard to perceived building bulk of itself.
5. While noting the concerns of lay objectors, mindful quite directly of the findings of Lloyd J in New Century Development, I accept the expert position that there is a satisfactory parking arrangement proposed with the development. It follows for me that no unreasonable amenity effects in regard to parking would follow.

The contention in context

1. In this part of the judgment I am grouping relevant concerns from Ex 3 (Council's statement of contentions) and objections from neighbours, to frame the attention to tree loss and landscaping. These lay submissions are direct considerations under s 4.15(1)(d) of the EPA Act, and are also put forward by Council as public interest matters in Ex 3 (Contention 5).
2. Contention 2 in Ex 3 is concerned with "tree preservation and landscaping". Contention 2(b) seems to me to be most pertinent particular and provides as follows: "The development proposal is inconsistent with the objectives and controls of the HDCP 2013, Section 1 B. 6 Tree Preservation as insufficient evidence is submitted to demonstrate that the proposed tree removal is necessary to facilitate the proposed development."
3. In regard to the lay objections, I note Mr Koprivnjak selection of excerpts from lay submissions in his closing (ROS, pp 14-15). Below, I reproduce one of these excerpts, and a further excerpt from my own overview of the actual lay submissions: "There is insufficient set back of the new building from the boundaries to adjacent properties. This does not allow for more garden and especially canopy trees to be planted ... to provide an interface to the houses on properties adjacent to the site. The new development should be planned to provide a greater and more appropriate setback in which native canopy trees are planted and it is ensured that they survive and grow to maturity" (Ex 1, Vol 1, folio 574) "The removal of 32 protected trees from the site is not acceptable. This level of tree removal is excessive and more creative designing needs to be implemented to preserve more these trees"… (an excerpt from cl 3.4.7 of the DCP is then provided) Ex 1, Vol 1, folio 580).

Policy

1. In regard to SEPP Vegetation (and, relevantly, DCP provisions within cl 1B), I agree with Mr To's submissions (ACS, pars 26-27) that they can be considered as "machinery provisions". As far as this application is concerned, they position for more concrete controls which are established elsewhere in the DCP. But I also note the provisions at Part 1B.6.1(i) which provide in regard to the "consideration" of applications for tree removal or work, saying "removal should be consistent with the applicable provisions of the SEPP Vegetation, LEP and DCP".
2. Turning to the DCP, Part 3.4 applies to residential flat buildings on sites with a maximum building height control of 17.5m. In turn Part 3.4 applies to the subject application. Part 3.4.7, concerned with landscaping, can be seen as providing the (if I can again use the term) "concrete" provisions in regard to landscaping. Relevant provisions are outlined below. "Desired Outcome a. Landscaping that integrates the built form with the locality and enhances the tree canopy, b. Development that retains existing landscape features such as trees, flora and fauna habitats and urban streams. … Prescriptive Measures General … b. Communal landscaping should be provided adjacent to the property boundaries to provide a landscape setting for the development. … d. Landscaped areas should adjoin property boundaries, in accordance with Table 3.5.7(a), and be designed to accommodate:' -Deep soil areas for a minimum of 50% of the front setback, -Canopy trees that will reach mature heights of at least 10 to 12 metres in the front and rear setback, and -Trees that will reach a mature height of at least 6 to 7 metres in the side setbacks. e. Paving within deep soil areas should be minimal. Any paving should be permeable … Retention of Landscape Features … k. Existing healthy trees should be retained and protected wherever possible. Any trees removed as part of the development should be replaced elsewhere on site wherever possible Notes Deep soil zones are areas of soil not covered by buildings or structures within a development. They exclude basement car parks, services, impervious surfaces including driveways, paths and roof areas Deep soil zones have important environmental benefits, such as allowing infiltration of rainwater to the water table and reducing stormwater runoff, promoting healthy growth of large trees with large canopies and protecting existing mature trees which assist with temperature reduction in urban environments."
3. Part 3.3.15 of the DCP ("Key Development Principles") also has relevance given its "detailed controls" in regard to certain precincts. The Key Development Principles Diagram for the Essex Street Epping Precinct is relevant.

Evidence

1. To help me focus the analysis of the evidence on this issue, Council's final submission on tree loss (ROS pars 118-165) might be summarised as twofold: (1) unjustifiable loss of medium and higher value trees (narrowed down to include trees "within the side setback" and "Tree 53" - ROS, para 130), and (2) inadequate capacity for replacement planting (ROS, pars 124-125).
2. Directly, the experts have the following to say on Contention 2(b): "(Mr Kingdom) is of the opinion that the particular relates only to retention of tree number 53 (Grey Ironbark) and that the tree is at risk of failure and should be removed. (Mr Paroissien) is of the opinion the Particular relates to the overall design, as proposed, not taking into account existing trees, or demonstrating that the retention of existing trees would be an unreasonable restriction to orderly development of the site. In respect to tree 53, Mr Paroissien was of the opinion that the risk of failure has not been satisfactorily demonstrated."
3. Mr Paroissien's opinion is that there has been insufficient demonstration that further tree retention (I can interpret this as now limited to the side boundary and Tree 53), would not be reasonable. Mr Kingdom's view is that the (disputed) trees need to be removed. Appendix B to the first joint report by the arboricultural experts (Ex 6) comprised Mr Kingdom's arboricultural impact assessment (AIA) for the proposal. The AIA provided a schedule of the relevant trees, and an assessment of a number of factors including their size, health, "significance rating", and "assessment of impact".
4. In their second expert report (Ex 10), the arboricultural experts provided agreed commentary on amended plans which allowed for the retention of some additional trees, especially near the south-eastern corner, and in the front setback.
5. It is clear enough from Ex 6 what trees might be thought of as most under question when Mr Paroissien's position is compared to Mr Kingdom. That is, which of the trees, which were proposed to be removed, might be seen as "at the margins" on the question of whether removal is required for the purposes of development (mindful of the zoning and DCP controls). Tree 53 has been mentioned above (a 30m tall grey ironbark). Trees within the northern boundary setback required to be removed include Tree 28 (a 14m tall brushbox with a "high" significance rating) located in the vicinity of the as now proposed communal open space area between Buildings A and D, and Tree 27 (a 14m tall jacaranda indicated as of medium landscape value) located more centrally to this proposed communal open space. Tree 35 (in the vicinity of the existing villa home at 8 Rockleigh Way), Trees 22, 21 and 20 are all trees indicated as of medium significance which are in the northern setback area. Setting aside Tree 53, there are a lesser number of trees of medium significance to be removed within the rear setback area, but commonly related to the proposed on-site stormwater detention requirements. There are no significant trees along the southern boundary of relevance except those within the front setback area (Trees 58, 60 and 61) which Council, at least, is not wishing to press.
6. I agree with Mr Paroissien that there is something lacking in the assessment of the reasonableness of the removal of some trees and associated landscape loss. Certainly there are many instances where tree removal is an obvious requirement (recognising the zoning), and the particulars are made clear in the AIA. With due respect to Mr Kingdom, as I am not sure that it is reasonably his job to undertake this work, the qualitative assessment of the trees I have described as "at the margins" is limited. For these trees, there seems to be some repetition to the commentary: "removal required to facilitate proposed development plans", or for a "proposed footpath" or for "planter boxes". I acknowledge there is also sometimes reference to structural root or tree protection zone concerns, particularly when trees are closer to the setback line.
7. I now turn to the evidence on the capacity for replacement landscaping. The arboricultural experts have evidenced direct concerns on this question. The concern was raised in their second joint report (Ex 11) and relates to proposed canopy tree planting adjacent to retaining walls and pathways: "The experts have also reviewed the proposed replacement tree plantings and agree that a number of the proposed tree plantings are planted in close proximity to proposed retaining walls and terrace areas and that there is high potential for future conflict. These proposed plantings are not considered sustainable. The experts agree that some of the plantings of proposed canopy tress adjacent to retaining walls and pathways in the side setbacks be amended to provide for smaller species to avoid/minimise the potential for future conflict." (emphasis in original)
8. The problem was not resolved with the final plans (Ex H) with the arboricultural experts indicating in their final expert report (FAR, p10): "The experts have also reviewed the proposed replacement tree plantings and agree that some of the proposed tree plantings are planted in close proximity to proposed retaining walls and terrace areas and that there is high potential for future conflict. These proposed plantings are not considered sustainable in the long term."

Applicant's submissions

1. The applicant submitted, as I understood it, that Council concedes and that it would follow that its experts agree, that the proposal "contributes to the desired future character of the area" (ACS, par 41). This point might well be drawn given that Council no longer pressed an earlier contention that the proposal was "inconsistent with the desired future character of neighbourhood" (Ex 2, listed Contention 3). The particulars of then Contention 3 in Ex 2 were concerned with: (a) SEPP 65's Principle 1: Context and neighbourhood character, and in the particular, in regard to streetscape in particular, (b) Part 3.4.1 of the DCP, which directly seeks as an outcome "development that contributes to the desired future character", although the particulars only reference building height, (c) Part 3.4.15 of the DCP (I assume cited only in error in the particular as "Part 3.4.14") in regard to building height and (d) Part 3.4.15 in regard to the Key Development Principles Diagram which has a wider ambit and I further outline below. While this point of the applicant is significant, and can assist my evaluation, the need for me to consider lay submissions (under s 4.15(1)(d) of the EPA Act) would require me to consider the questions relating to tree loss and landscaping in any event.
2. In regard to tree loss and replacement landscaping specifically, the applicant's submission (ACS, pars 31-37) compared the application to particulars of the DCP as follows: "31. Section 3.4.7 identifies a desired landscape outcome including the retention of existing trees (outcome b), and a control that trees should be "retained and protected wherever possible", with replacement elsewhere on site where removed (control k). 32. The phrase "wherever possible" in control k of section 3.4.7 must be read in context. That context is for residential flat development, in a R4 High Density zone, with a floor space ratio control (not exceeded here), and with such development expected to conform to adequate separation requirements consistent with the Apartment Design Guide. 33. Here, the location of the tree necessitates its removal for a form of development that is entirely expected from the zoning, the expected density and the finer grained built form controls such as the ADG. 34. The location of tree 53 is within the basement footprint and it would be an unwarranted constraint on the expected development - a basement sitting under the built form - to expect its retention. 35. Further, control b of section 3.4.7 seeks communal landscaping adjacent to property boundaries. There is an expectation that communal space will be along the perimeters of subject sites (as is the case proposed here). 36. This is further reinforced by the precinct-specific principles for the Essex Street Epping Precinct. Nothing in the Key Development Principles or the accompanying precinct Diagram require the retention of trees centrally located in, and at the rear of a site in the precinct. 37. Rather, the objective in section 3.4.15 is to be consistent with the principles in the Diagram and the requirement is to design to embody those principles. The Diagram expressly nominates, as a principle, the provision of "setbacks along street frontages and locating communal open spaces to retain existing trees that are prominent streetscape features"."

Consideration

1. The application exhibits for me a considerable misalignment with the DCP prescriptive controls in regard to tree loss and replacement planting. My concerns are centred on the side boundary arrangements, in particular the northern side. Below, the applicable DCP provisions are first evaluated with respect to the application. I then look at the need to be flexible in the application of DCP controls. Then, I draw overall conclusions.

Evaluation against applicable provisions

1. I would first turn to the Key Development Principles Diagram (KDPD) for the Essex Street Epping Precinct. The applicant's submissions, reasonably, give reference to the KDPD's emphasis on tree retention as a factor in the "streetscape", which might be thought of as something distinct from the northern boundary treatment which is of concern here particularly. But if the KDPD is to be scrutinised in regard to "landscape setting", there is also mention of the principle to "surround and screen new buildings with canopy trees and shrubs" (my emphasis) which warrants attention.
2. Next I turn to the landscape controls at Part 3.4.7 of the DCP (relevantly reproduced at [84]). What I take from the prescriptive measures is that the side boundaries should have a 4m wide deep soil area to accommodate trees with a mature height of 6 to 7m, and that the side boundary setback area will involve communal landscaping which effects a "landscape setting" for the development. What I see in the plans for the northern side boundary setback, is something considerably at odds with that.
3. The drawings I reference here are useful at indicating the transition between the northern boundary and the apartments. They highlight the considerable level differences between existing boundary level and proposed finished levels. Drawing DA-0-442 provides a section near where Unit DL.02 (on the lower ground level of Building D) adjoins the communal open space between Buildings D and A. It indicates two planting beds running along the communal area near the side boundary, each about 0.7m wide and separated by a retaining wall. An excerpt from this drawing is reproduced below.
4. A similar issue in regard to level differences between the existing boundary and proposed finished levels along the northern boundary is indicated in drawings referenced as: DA-0-441 and DA-0-443; with the height difference only somewhat less in the latter drawing.
5. Section DD in Ex H also usefully shows the northern boundary to building transition. An excerpt is provided below, showing retaining walls and landscaping beds. While difficult to interpret in the reduced drawing, it indicates the excavation required for "Unit AL.01" which is indicated as generally below the "natural ground line" (shown dotted) in this location.
6. The landscape plans (Drawing SS17-3684-101 Revision L and 102.1 Revision M in Ex H) do indicate tree species which nominally meet the 6-7m height requirement of the DCP, but the arborists have raised questions about the potential sustainability of certain planting, without being precise about which trees are of concern. Nonetheless given the concerns raised about retaining walls and the evidence from the plans in regard to such items I reference above, it would be unreasonable for me not to conclude that the northern side boundary deep soil areas are non-compliant and the capacities to achieve 6-7m high trees in the side setback areas, are at the very best unproven.

Flexible application of provisions

1. A consent authority has discretion in the application of the controls in development control plans. That is to say, a failing in regard to a DCP is not of itself terminal for an application. Section 4.15(3A) of the EPA Act specifically provides for the flexible application of DCP provisions, as follows: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - … (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and …
2. The relevant DCP objectives (in this case referred to as "desired outcomes") at Part 3.4.7) are as follows: "a Landscaping that integrates the built form with the locality and enhances the tree canopy. b. Development that retains existing landscape features such as trees, flora and fauna habitats and urban streams"
3. In regard to "Outcome a", Mr Dickson for the applicant spoke positively of the advanced planting which is proposed with the application and of the streetscape appearance of the development, a common reference point in the DCP (eg the Key Development Principles Diagram Part 3.4.15). But given the existing low density character, with canopy trees very prominent, the prospects of "enhancing" the tree canopy in this particular setting are not practical. My principal concern, with regard to Outcome a, is that of landscaping "integration" along the northern side boundary. I see this as seriously problematic on the evidence given the extensive retaining walls, narrow garden beds and questions in regard to the sustainability of proposed landscape planting.
4. In regard to "Outcome b", the point of concern is the failures in retention of existing landscape features. This is a potential gateway to accept a lower performance along the northern boundary if there were other instances of retention of landscape features elsewhere. But the scale of removal of landscape features and ecological habitat is unquestionably extensive with the proposal, including of course Tree 53. There is some landscaping retention in the south-eastern corner which I recognise. There is little evident compensatory landscaping to account for the non-compliances at the northern boundary. The southern boundary setback comprises a significant driveway and little in the way of communal landscape areas. I accept the view of the experts that there is satisfactory landscaping in regard to street presentation, but there are also apparent landscape losses in that area as well as a consequence of excavation.
5. In this matter, of more pertinence than the achievement of the relevant DCP control objectives is a wider requirement to apply DCP controls flexibly. I will now turn to this question, before drawing overall conclusions.
6. It is appropriate to consider wider commentary from experts here of pertinence. I do believe that Mr Dickson was aware of and accepting of the configuration of the northern landscape treatment. In oral evidence Mr Dickson referenced the process involved in developing the revisions to the plans over time, which seemed to involve some considerable dialogue in regard to the side boundary setback arrangements. While I accept the applicant's submission that side boundary building setbacks are satisfactory (ACS, par 2.2), this is not the concern. The concern is how the landscape setting between the building and the boundary might be effected, and whether it is satisfactory.
7. I also acknowledge that Ms McCredie was aware of and viewed the drawings referenced above. If she had a concern about the landscape configuration to the northern boundary there was opportunity for this to be raised by her, and she did not. At the same time I do acknowledge Ms McCredie's concerns in regard to the significance of ecosystem effects associated with the proposal, which she seemed to be at least partly saying were inevitable as a consequence of the site zoning.
8. Mr Dickson's position was that the development was aligned with the general policy ambitions for the locality. He referred regularly to what I might call metropolitan planning goals relating to the accommodation of population growth in suitable locations such as this. I might take it that this was behind the point that it was not practically reasonable here to retain the in-question side boundary trees, or sustainable replanting opportunities, while making best efforts to further housing supply in a well located area.

Conclusion

1. There is considerable evidence of thorough, responsive design with this development as it has worked at addressing various constraints and opportunities. I must note the evidence of the experts and their agreement in regard to certain qualities.
2. Nonetheless, and despite the considerable revisions even in the course of these proceedings, this quite large scale development has a serious inadequacy in regard to the northern boundary landscape configuration. The extent of cutting which affects the capacity to retain landscape features, and consequent requirements for retaining walls, result in deficient deep soil areas, and deficient capacity to provide appropriate side boundary landscaping, as envisaged in the DCP.
3. In my understanding, the applicant's key argument in response is that related to achieving well located housing supply to meet metropolitan demand. The proposal would achieve good levels of residential development density in a location which has good access to transport and services, and in a high density zone with those intentions. Specifically, the achievement of the proposed development yield is brought about directly as a consequence of the extent of cut which brings about the proposal's failings in regard to landscaping.
4. This is insufficient justification. The objectors, and wider community, have good reason to expect compliance with policy requirements in regard to the quality of landscape treatment; with higher density residential zones in Sydney's transitioning suburban areas a circumstance of particular need. Without appropriate compensatory provisioning to deliver on desired landscape outcomes, or another planning outcome beyond the housing supply defence, neither of which I see as evident here, the landscape failing considered above is determinative.

Orders

1. The orders of the Court are: 1. Leave is granted to amend the application in accordance with the further amended application bundle filed on 24 February 2020 as supplemented on 26 February 2020. 2. The applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is dismissed. 4. Development Application No. 546/2018, which seeks consent for a residential flat building development and associated works at 15-19 Essex Street Epping, is refused. 5. The exhibits are returned with the exception of Exhibits A, H and 3.

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