JKN Para Pty Ltd (administrator appointed) v City of Parramatta Council

The site and its context

1. The site is legally described as Lot 1 in DP 1214839.
2. The site is located on the eastern periphery of the Parramatta City Centre and within the lower Parramatta River sub-catchment, approximately 400m to the east of Parramatta Railway Station, approximately 250m south-west of Parramatta River and 85m north of the Claycliff Creek Channel.
3. The site contains a 7-storey podium and 5 levels of basement parking (approved under previous consents).

The application is amended

1. By Notice of Motion filed in Court on the first day of the hearing, the applicant sought to amend the application to rely on amended plans and documents (Ex A on the motion). The applicant submitted that the amended plans and documents included changes to the proposal agreed between the planning and urban design experts that would address some of the Council's contentions. The applicant further submitted that the changes made to the proposal went further than those changes agreed to by the planning and urban design experts during joint conferencing.
2. The Council opposed the motion on the basis that the amendments to the application would require an assessment of the changed proposal beyond the expertise of the Council's experts, including landscaping and acoustic expertise. The Council submitted that the amended proposal did not satisfy the Council's principal contentions.
3. The parties agreed that the changes to the proposal were cumulatively not minor within the meaning of s 8.15(3) of the EPA Act. The applicant agreed to the Court making an order for the applicant to pay the Council's costs thrown away as a result of the changes made to the proposal.
4. Exercising the consent authority's function under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Court granted leave to the applicant to amend the application to rely on the amended plans and documents in Ex A, which were later admitted into evidence as part of Exs A to D. The planning and urban design experts were directed to confer during the afternoon of the first day of the hearing regarding the changes made to the proposal so that the Council's experts could provide their position in oral evidence the following day on the extent to which those changes to the proposal addressed the Council's contentions.

The application is further amended

1. Leave was sought by the applicant on the second day of the hearing for a further amendment to the application to change the pitch and overall height of the roof feature on Tower A of the proposal, so that the proposal is consistent with the 167m height limit above natural ground level under cl 7.28(2)(d) of LEP 2011 (Ex H). The Court's leave for the amendment to the application was unopposed by the Respondent and granted (the proposal).
2. The parties agreed that the changes to the proposal sought in the further amendment of the application were minor within the meaning of s 8.15(3) of the EPA Act.

Leave refused to further amend the application on the final day of the hearing

1. The applicant sought leave to amend the application to rely on amended plans on the final day of the hearing, 22 August 2024, after the Council's closing submissions had been given on 14 August 2024.
2. The Council opposed leave being granted on the basis that the amended plans included material changes to the proposal intended to address issues raised by the Council's experts that would require an assessment by those experts after they had been released. According to the Council, the applicant had been on notice of those issues for some time as they were raised in the joint reports. The Council submitted that allowing the applicant to amend the application would be prejudicial to the Council.
3. Proposed amendments to the plans included changes to window types and sizes including changing window dimensions on multiple levels to increase the effective openable area of those windows; notes added for acoustic attenuation to apartments within the podium; changing the summary figures of units receiving natural cross ventilation to reflect the Windtech Ventilation Study of 7 August 2024; and changes to balustrades to identify them as an open metal palisade to reduce airflow obstruction through the breezeway. These changes were made in response to, and to reflect, expert evidence given in joint reports and in oral evidence.
4. The Court refused leave to amend the application for the reasons set out in the Council's submission. The applicant had been afforded two opportunities during the hearing to amend the application. The final amendment included changes to the plans that would require assessment by the Council's experts and further expert evidence after the Council had given closing submissions, and therefore a likely adjournment and a further listed day for the hearing. Allowing the proposed amendment to the application at the end of the hearing would have been prejudicial to the Council's case and was not consistent with the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Background and the proposal (as amended)

1. A summary of the background to the appeal, according to the applicant's chronology (Ex D, tab 27), is as follows:

• DA/852/2013 was granted consent on 15 April 2015. The basement and podium component of the consent was constructed in 2016-2017.
• The site specific planning proposal to increase the height and GFA was gazetted on 4 September 2019.
• The CDArchitects scheme was selected as the Design Excellence Competition winner on 9 October 2019 and the jury report was issued on 24 June 2020, including a list of items to be addressed during design development (Ex D, tab 31, section D2).
• DA 493/2020 was lodged on 20 December 2021.
• DA 493/2020 was refused by the Sydney Central Panning Panel on 14 December 2022 following an application for review under s 8.3 of the EPA Act (Statement of Facts and Contentions, Ex 1).

1. The proposal is for two residential towers over an approved 7-storey podium, comprising:

• Tower A 47 levels with 463 residential apartments, maximum height of 167m (RL 172.78).
• Tower B 38 levels with 245 residential apartments, maximum height RL 156.92.
• Use of the existing basement levels 1-5 for residential car parking, which will require the reconfiguration of the layout of all basement levels and installation of an additional lift to service Tower A.
• Minor reconfiguration of the units in the podium level to accommodate the additional lift.
• Installation of an additional lift to service Tower A in the public car parking levels at Lower Ground, Upper Ground and Levels 2-6.
• Modification of DA/852/2013 (proposed under a condition of consent) to incorporate the additional lift to Tower A, minor reconfiguration of the apartments in the podium and deletion of Towers A and B (as approved under DA/852/2013).
• Modification of DA/852/2013 (proposed under a condition of consent) to widen and reconfigure the Macquarie Street carpark entry.

1. The eastern side setbacks of Tower A range between 7.51 to 8.99m; the western side setbacks of Tower A range between 7.12 to 9.1m (Ex B, DA 1114.5 Rev B).
2. The south-western side setback of Tower B for Levels 8 to 16 is nil for the portion of the boundary where the adjoining building has a nil side setback, and 6.016m for the remaining portion (Ex B, DA 1114.1 Rev B - DA 1114.2 Rev B). For the levels above the neighbouring building at 26-30 Hassall Street, the setback ranges between 2.69 to 6.015m (Ex B, DA 1114.5 Rev B).
3. The minimum separation between Towers A and B is 18.7m (Ex B, DA 1114.3 Rev B). Towers A and B are offset and generally separated by a distance ranging between 21.5m and 32m (Ex B, DA 1114.5 Rev B).

Planning framework

1. LEP 2011 applies to the application pursuant to cl 1.8A(1) of Parramatta Local Environmental Plan 2023 (LEP 2023). LEP 2023 is a matter for consideration under s 4.15(1)(a)(ii) of the EPA Act.
2. The site is zoned B4 Mixed Use pursuant to LEP 2011 and it is uncontroversial that the proposal is permissible with consent in the B4 zone. The objectives of the zone, to which regard must be had, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage development that contributes to an active, vibrant and sustainable neighbourhood. • To create opportunities to improve the public domain and pedestrian links. • To support the higher order Zone B3 Commercial Core while providing for the daily commercial needs of the locality. • To protect and enhance the unique qualities and character of special areas within the Parramatta City Centre.
3. The height of buildings development standard for the site is 145m under cl 4.3 of LEP 2011. The FSR development standard for the site is 10:1 under cl 4.4 of LEP 2011.
4. Clause 5.6 of LEP 2011 permits architectural roof features to exceed the height of buildings development standard under cl 4.3.
5. Clause 7.28 of LEP 2011 is a site specific exception clause in the following terms: 7.28 189 Macquarie Street, Parramatta (1) This clause applies to land marked "Area 4" on the Special Provisions Area Map. (2) A building on land to which this clause applies may exceed the maximum permissible FSR and the maximum permissible HOB if the consent authority is satisfied of the following - (a) the design of the development is the result of a competitive design process, (b) the development exhibits design excellence, considering the matters specified in clause 7.11(2), and (c) the development continues to include a public car park on the site, and that area is not subject to paragraph (e) or (f), and (d) the building height does not exceed 167m above natural ground level, and (e) the gross floor area does not exceed 60,000m2, excluding floor space used only for enclosed communal areas and enclosed private balconies, and (f) the gross floor area used for enclosed communal areas and enclosed private balconies does not exceed 2,750m2. (3) In this clause - enclosed communal area means an area provided for recreational use by tenants, including gymnasiums, common rooms and enclosed communal gardens. enclosed private balcony means an enclosed balcony, deck, terrace or winter garden attached to a dwelling for private use.
6. Natural ground level under cl 7.28(2)(d) is not defined by LEP 2011. The urban design and planning experts agreed that the proposal's height does not exceed 167m above natural ground level (despite the applicant using a survey undertaken prior to the construction of the podium to determine natural ground level and the Council using a survey undertaken after the construction of the podium to determine natural ground level). The urban design and planning experts agreed that the GFA of the proposal does not exceed 60,000m2 (Ex F), pursuant to cl 7.28(2)(e) of LEP 2011.
7. Clause 7.11 'Design excellence' of LEP 2011 applies to the proposal at cl 7.11(2) and is in the following terms: 7.11 Design excellence (1) Development consent must not be granted to development to which this Division applies unless the consent authority is satisfied the development exhibits design excellence. (2) In considering whether development exhibits design excellence, the consent authority must consider the following - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) how the development addresses the following - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage and archaeological issues and streetscape constraints or opportunities, (iv) the location of any proposed tower, having regard to the need to achieve an acceptable relationship with other existing or proposed towers on the same site or on a neighbouring site in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
8. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposal at s 144(2). Development consent must not be granted to the proposal unless the consent authority, or the Court exercising the functions of the consent authority, has considered the quality of the design of the development evaluated in accordance with the design principles for residential apartment development set out in Sch 9; and the ADG, at s 147(1) of SEPP Housing. The following ADG design criteria are relevant:

• Visual privacy: Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: 12m (habitable rooms and balconies) at 9 storeys and above, at 3F-1.
• Solar and daylight access: Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9am and 3pm at mid-winter, at 4A-1. ° Design guidance: The design maximises north aspect and the number of single aspect south-facing apartments is minimised. ° Single aspect, single storey apartments should have a northerly or easterly aspect. ° To maximise the benefit to residents of direct sunlight within living rooms and private open spaces, a minimum of 1m2 of direct sunlight, measured at 1m above floor level, is achieved for at least 15 minutes.
• Natural ventilation: At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building. Apartments at ten storeys or greater are deemed to be cross ventilated only if any enclosure of the balconies at these levels allows adequate natural ventilation and cannot be fully enclosed, at 4B-3.

1. DCP 2011 applies to the proposal. The controls in Part 6 Parramatta City Centre apply to the proposal at section 6.1.1.
2. Section 6.3 'Built form', section 6.3.1 'Guiding principles' of DCP 2011 includes the following relevant principles: "P.05 Building depth, bulk and separation creates a city form that protects amenity, daylight penetration, views to the sky and privacy between adjoining developments and minimises the negative impacts of buildings on the amenity of the public domain. P.06 Towers are proportioned to maximise their slenderness of form. P.07 The design and materials selection of buildings and the public domain contribute to a high quality, durable and sustainable urban environment. P.08 The gross floor area permissible under the applicable maximum FSR for each Development Lot in some circumstances may not be achievable when all planning, urban design and assessment considerations are taken into account. These may include, but are not limited to, matters such as street and tower setbacks, width of street frontage, the shape and size of the site, heritage curtilage, significant trees being retained, and significant archaeology on the site."
3. Section 6.3.3.2 'Building separation' includes the following relevant objectives: "O.02 Provide adequate privacy, access to light, air and outlook for the occupants of buildings, neighbouring properties and future buildings. O.04 Ensure development does not prejudice the re-development of adjoining sites in the future."
4. Residential development in the B4 zone is to have a 9m tower setback to achieve building separation, at Figure 6.3.3.2.1 of DCP 2011.
5. Section 6.3.3.3 'Tower slenderness' of DCP 2011 includes the following relevant objective and controls: "O.03 Achieve living and working environments with good internal amenity, including solar access, natural ventilation, outlook and external amenity of open spaces. C.03 The maximum floorplate area for a residential tower must be: … c) 1100 square metres for a building which is greater than 105 metres high. C.06 The maximum floorplate length for any tower in the B4 Mixed Use zone must be 45 metres."
6. The parties agreed that the proposal complies with the maximum floorplate area for a residential tower greater than 105m high of 1100m2, at C.03 of section 6.3.3.3 of DCP 2011.

Expert evidence

1. The Applicant relied on the expert evidence of Nigel Dickson (urban design and sustainability), Larissa Brennan (planning), Simon Ronald (wind and sustainability), Dr Peter Georgiou (glare) and Dr Neihad Al-Khalidy (BASIX).
2. The Council relied on the expert evidence of Dr Stephen Collier (urban design), Stuart McDonald (planning), Michael Eddy (wind) and Che Wall (sustainability, glare and BASIX).
3. The urban design and planning experts prepared a joint report (Ex 3) and gave oral evidence. They agreed on the following:

• The 6m setback of Tower A to the Macquarie Street frontage is appropriate and consistent with DCP 2011.
• Both towers comply with the maximum floor plate area control of 1100m2 under DCP 2011.
• The architectural treatment of the existing podium is appropriate.

1. The urban design and planning experts disagreed on whether the proposal achieves design excellence under cl 7.11 of LEP 2011. The Council's experts are of the opinion that the proposal does not achieve design excellence for the following reasons:

• The side setbacks of Tower A should be 12m. Visual privacy within apartments on either side of Tower A will be compromised by the non-compliant side setbacks and an over-reliance on inadequate privacy devices. The fixed vertical louvres will not achieve solar protection and privacy because they are too widely spaced. The high level windows to protect privacy result in poor internal amenity.
• The proposal fails to meet objective 4A-1 of the ADG which requires 70% of apartments to receive at least 2 hours of solar access on the winter solstice. The proposal does not optimise solar access. Dr Collier noted that some apartments identified as receiving at least 2 hours of solar access on the winter solstice receive sunlight through high level windows to the living room and balcony on the western façade. In his view, this is a technical compliance however it represents poor amenity.
• The western façade of Tower A would create a large vertical surface the size of a rugby league field, blocking views of the sky when viewed from Macquarie Street to the west of the site. Tower A is not consistent with the numerical control for maximum floorplate length of 45m, nor the objectives for tower slenderness under DCP 2011. The excessive bulk and massing of the proposal will have an adverse impact on the public domain and the future development potential of adjoining properties.
• Slender towers have a quantifiably less detrimental impact on the urban amenity of a dense urban environment when compared to buildings that have large and especially long floorplates. The north and south elevations of Tower A are slender, in contrast to the side elevations.
• The separation between the two towers is too narrow and the distance is not compliant with the ADG 3F-1.
• Painted render does not constitute a high standard and durable finish, as rendered finishes require ongoing maintenance.

1. Dr Collier identified an alternative concept floor plan for Tower A, which would, in his view, achieve ADG compliant side setbacks and which included moving the service core further to the south. According to Dr Collier, his concept floor plan would deliver the same number of apartments per floor and offer a comparable mix of dwellings. In his opinion, the more centralised lift core would free valuable northern façade of the building for apartments, and it could be achieved with minimal interference to both the existing structure and circulation pattern.
2. According to Mr Dickson, it is not possible to relocate the existing lift core in Tower A because the existing foundations to accommodate the tower and the lift core are extant on the site. Notwithstanding this, if the lift core was moved towards the centre of Tower A, a similar floor space and apartment mix would not be possible with side setbacks of 12m. The proposed width of Tower A and 9m side setbacks is optimal and narrowing the tower would be sub-optimal as lateral structure bracing would be required. Mr Dickson noted that the side setbacks are consistent with the controls under DCP 2011.
3. Mr Dickson opined in oral evidence that 60% of apartments receive at least 2 hours of solar access on the winter solstice between 9am and 3pm.
4. Regarding the architectural roof feature, Mr Dickson noted in the joint report (prior to the final amendment of the application which flattened the skillion roof feature) that the "floating top element… is an important visual device" (Ex 3, par 175).

Submissions

1. In summary, the applicant submitted the following:

• The applicant has designed the proposal having regard to the planning history of the site, namely the masterplan, which was informed by the design competition brief. The Council has made planning decisions regarding this site over the last decade that are relevant to the determination of the application. The proposal follows the masterplan for the site, including the footprint of the approved development; the existence of the through site link; the public car park; the two tower scheme with the accepted separation and the established setbacks. Planning decisions have been made and the existing podium building has been built based on those decisions. It would be unreasonable and illogical to require the existing building with a public car park and two lift cores to be now redesigned with an entirely different central lift core, different building depths, and different tower separation and setbacks. The masterplan is a relevant consideration and may be taken into account (Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170, referred to by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 at [6], BP Australia Ltd Campbelltown City Council (1994) 83 LGERA 274 at 278-279).
• The design before the Court is the winning design of the Design Excellence Competition, subject to some amendments to further improve the amenity and bulk and scale of the development. The approved development included a voluntary planning agreement, pursuant to which the applicant had to build the public car park for the Council. This was integral to the approval that was given for the two towers, with their proposed setbacks and building separation. The Council now intends to hold the applicant to its obligations in respect of its provision of the public car park but want the tower development to be otherwise that what was proposed in the masterplan.
• The assessment of the proposal by Council's urban design and town planning experts is divorced from the planning history of the site. Dr Collier's floor plate does not observe the scope or rules of the design competition.
• In determining the Council's contentions regarding inadequate setbacks, the slenderness of the towers and materiality, the circumstances of the case mandate that consideration be given to the history of the strategic planning for the site, which is fundamentally significant. The ultimate decision should be informed not only by s 4.15 of the EPA Act, the ADG, LEP 2011 and DCP 2011 (noting the ADG and DCP 2011 are guideline documents), but should also take into consideration previous approvals and previous decisions, including the making of amendments to LEP 2011 as those amendments were informed by detailed studies.
• The proposal is consistent with the winning design of the Design Excellence Competition. The height, scale and massing were endorsed through the architectural design competition process and informed by the urban design analysis prepared by GMU. The competition jury had no issue with the setbacks of the towers. The built form was considered to achieve a high architectural finish. The design competition brief restricted entries to no alteration of the lift shafts to towers.
• The Council's position is that the proposal should now have different setbacks and different floor plates with the lift shaft in a different position than the lift shaft constructed within the podium.
• The proposal does not have to be an "exemplar" or model of design excellence, it has to be of design excellence when measured against the matters in cl 7.11(2) of LEP 2011. Whether the development displays design excellence is a matter which ultimately is highly subjective. There are some numerical specific requirements against which the development can be objectively measured. The Court should have regard to the history of this scheme and give considerable weight to the Design Excellence Competition and a comparison of the scheme there approved with what is now proposed.
• The length of Tower A is now 51m. It was 59m and then reduced to 53m by increasing the setback of Tower A from Macquarie Street above the podium. By reducing the width of breezeways from 3m to 2m, a further 2m reduction in the length of the tower has been achieved. There is no evidence that the large vertical walls to Tower A detrimentally impact on view corridors. The side elevations of Tower A are articulated by horizontal and vertical elements.
• Development consents granted by the Council in the area: It is apparent that setbacks of buildings less than 12m from their boundaries, buildings with a length greater than 45m and towers with separation distances less than 24m have been repeatedly approved.
• Natural ventilation into habitable rooms is served by opening windows and/or doors. The error discovered during the hearing in the window schedule where an openable window was noted as a fixed window has been addressed by a condition of consent. The proposal complies with cross ventilation requirements in the ADG. Breezeways have been introduced into the design to increase ventilation.
• 60% of apartments meet the ADG criteria requiring 2 hours of solar access between 9am and 3pm on the winter solstice. In a CBD where tall buildings are encouraged, the Council recognised that solar access as prescribed in the ADG may not be reasonably possible. If the time period is extended to 8am to 4pm, 75% of apartments meet the ADG criteria of 2 hours of solar access on the winter solstice. The proposal has minimised the number of south-facing single aspect apartments.
• The ADG must be considered, but compliance with the criteria in the ADG is not a requirement. The distances in the ADG are guidelines. The proposal has been designed in accordance with the endorsed masterplan, because that was Council's direction.

1. In summary, the Council submitted the following:

• The proposal exceeds the height and FSR development standards under cll 4.3 and 4.4 of LEP 2011 and should be refused.
• The proposal does not exhibit design excellence and is not consistent with the design principles for residential apartment development. The proposal does not comply with key controls of the ADG or local controls, for the following reasons: ° The small side setbacks of the proposal have inappropriate amenity impacts in terms of views, natural light, and privacy. ° The non-compliant width of Tower A means that the proposal is not "slender" as contemplated in the controls for the Parramatta City Centre and its bulk and scale will have an inappropriate visual impact on the public domain and an inappropriate impact on neighbouring development. ° The eastern and western elevations of Tower A, comprising a large surface area of vertical wall, will detrimentally impact on view corridors. ° The render that is proposed to be used on the north and south exterior walls of both towers above the podium is not a high standard or durable finish.
• The proposal does not provide appropriate natural ventilation to habitable rooms or have a sufficient proportion of apartments that achieve natural cross ventilation.
• Only 44% of apartments receive 2 hours of direct sunlight between 9am and 3pm on the winter solstice, whereas the ADG requires at least 70% of apartments to receive this minimum level of solar access. The Council does not accept that deficiencies in solar access are a consequence of site constraints, but of the poor orientation of apartments (for example, on Tower A where the lift and service core have located on the northern side of the building).
• The masterplan is "not the law to apply" in the assessment of this development. The Court can take the planning history into account, but the proposal has to meet the planning controls in force. The four key frameworks that are relevant to the planning and urban design issues in these proceedings are: ° The design excellence requirements under cl 7.11 of LEP 2011; ° The design principles for residential apartment development in Sch 9 of SEPP Housing; ° The ADG; and ° DCP 2011.
• The Court, exercising the functions of the consent authority, can choose to refuse the proposal on the basis of those considerations in the ADG even if it is not forced to require compliance with the relevant criteria.
• The requirement to consider the provisions of a DCP are set out under s 4.15 of the EPA Act. In respect of built form, slenderness for towers and materials in the Parramatta City Centre, the controls under DCP 2011 are relevant considerations.
• The planning and urban design experts agreed that the proposal does not comply with the numerical design criteria under Part 3F Visual Privacy in the ADG. Dr Collier considers that the proposal has compromised amenity outcomes as a result of the inappropriate side setbacks of Towers A and B and that the proposal should have a side setback of 12m. The ADG side setback control of 12m prevails over the side setback control of 9m in DCP 2011 (s 149 of SEPP Housing).

Findings

1. We accept the agreements of the parties and their experts that the proposal's height does not exceed 167m above natural ground level, pursuant to cl 7.28(2)(d) of LEP 2011 and the proposal's GFA does not exceed 60,000m2, pursuant to cl 7.28(2)(e) of LEP 2011.
2. Notwithstanding that the scheme was the winning design in the Design Excellence Competition, the jury recommendations, in their report dated 24 June 2020, included that "the proposal shall maximise compliance with the ADG requirements for solar access, and demonstrate full compliance with the natural cross ventilation requirements of the ADG" (Ex D, tab 31, section D2). Nominating the scheme as the winning scheme, and then recommending the scheme maximises compliance with the ADG, creates an obvious tension. The applicant, not unreasonably, wants to maintain the building envelope and spatial planning of the winning scheme. However, the jury's recommended that a number of aspects of the scheme be further developed, including "compliance with ADG" and "planning compliance", indicate that in the jury's opinion the scheme needed to be changed in ways to better achieve objectives and improve compliance with numerical controls. It is our view that the performance of the proposal under the ADG objectives and DCP controls should be prioritised over adopting the building envelope and spatial layout selected as the winning design in the Design Excellence Competition and this is, in our view, consistent with the jury's recommendations.

Side setbacks of Tower A

1. The eastern side setback of Tower A is 7.51 to 8.99m. The western side setback of Tower A is 7.12 to 9.105m.
2. The ADG setback for living areas is 12m and the DCP 2011 setback control is 9m.
3. The four central apartments on each level of Tower A orientate east and west, so that their only outlook is towards the side boundaries.
4. Privacy mitigation devices include blade windows, high level windows, fixed louvres, sliding screens to balconies and privacy blinds.
5. We do not accept Mr Dickson's evidence that the side setbacks are consistent with the DCP numerical control of 9m. The incursion of the building envelope of the towers into the 9m side setback contributes to the poor internal amenity of apartments. We accept and concur with Dr Collier's evidence that the privacy mitigation measures are inadequate to ameliorate the amenity impacts of the insufficient side setbacks.
6. We accept and concur with Dr Collier's evidence that the proposal should maximise compliance with the 12m setbacks to side boundaries in order to achieve adequate internal amenity to apartments and sufficient separation from future towers on adjoining properties, particularly when the outlook of many apartments is solely towards the side boundaries. We accept his evidence that the proposed external vertical louvres do not achieve internal visual privacy from future surrounding development. We accept his evidence that the sliding screens for visual privacy on the balconies will, at times, require the occupants to choose between solar access and visual privacy.

Side setbacks of Tower B and separation of towers

1. The south-western side setback of Tower B is 2.69 to 6.015m. The portion of the south-western side of Tower B that is adjacent to the nil side setback of the adjoining building has a nil side setback, up to Level 16.
2. We accept the applicant's position that a nil side setback to the immediate eastern neighbour to Level 16 is acceptable, as the proposal butts up to a blank wall and is appropriate in the immediate context.
3. We accept and concur with Dr Collier's evidence that Tower B should maximise compliance with the 12m setbacks to side boundaries in order to achieve adequate internal amenity to apartments, for the same reasons as for Tower A.
4. The separation between Towers A and B is 21.5 to 32m.
5. We accept and concur with Dr Collier's evidence that the proposal should maximise compliance with the ADG 24m separation of towers for habitable rooms and balconies for buildings over 25m to achieve visual privacy, under the design criteria 3F-1 and Figure 3F-2. If the maximum floorplate length for Tower A was closer to 45m (C.06 of section 6.3.3.3 of DCP 2011), the ADG separation of towers would be achieved. Sufficient separation of living spaces between the towers is necessary to ensure visual privacy is achieved.

Solar access

1. Mr Dickson estimated that approximately 60% of the apartments receive at least 2 hours of solar access between 9am and 3pm on the winter solstice.
2. We accept Dr Collier's evidence that the maintenance of the lift core within Tower A, occupying a portion of the northern end of Tower A, presents a significant constraint to achieving a spatial layout that maximises living areas with a northern aspect and that this affects the ability of the proposal to optimise solar access to apartments.
3. We accept Dr Collier's evidence that the west facing highlight windows to the living room and balcony of the apartments on the south-western corner of Tower A, as the only source of solar access on the winter solstice for south facing apartments, does not represent a reasonable quality of solar access to those apartments, notwithstanding that those apartments do receive 2 hours of solar access between 9am and 3pm on the winter solstice.
4. We do not accept the applicant's position that the site is so constrained that a spatial layout for the towers is unable to reach the solar and daylight access criterion under the ADG at 4A-1 for at least 70% of apartments in a building receiving a minimum of 2 hours direct sunlight between 9am and 3pm at mid-winter. The side and rear apartments of Tower A do not achieve a living environment with good internal amenity, including solar access, contrary to objective O.03 of section 6.3.3.3.

Slenderness of Tower A

1. We accept and concur with Dr Collier's evidence that Tower A is not consistent with the numerical control for maximum floorplate length of 45m, nor the objectives for tower slenderness under DCP 2011. The proposal has sought to achieve the 1100m2 floorplate for Tower A, which results in the profile of the floorplate in plan being a long rectangle. Tower A is not proportioned to maximise its slenderness of form. Instead, the maximum floorplate numerical control at C.03 of section 6.3.3.3 of DCP 2011, a generic numerical control which references only the minimum height of the tower, has been prioritised over the maximum floorplate length control. The guiding principle P.08 of section 6.3.1 states, "The gross floor area permissible under the applicable maximum FSR for each Development Lot in some circumstances may not be achievable when all planning, urban design and assessment considerations are taken into account. These may include, but are not limited to, matters such as street and tower setbacks, width of street frontage, the shape and size of the site…" Similarly, the floorplate numerical control may not be achievable for the same reasons.
2. We accept Dr Collier's evidence that Tower A does not have slender proportions due to the disproportionate depth of the tower. We agree with his opinion that the excessively long and high building mass of Tower A placed in close proximity to Tower B gives undue prominence to the proposal, and when combined with the large surface area of walls on the eastern and western elevations, the proposal presents as two excessively dominant and imposing building forms (Ex 3, pars 325-326).

Architectural roof feature

1. The jury comments regarding the architectural roof feature were, "the jury agree that the architectural roof feature is an integral part of the towers architectural express and should be further developed and refined as the scheme moves to DA stage" (Ex D, tab 31, section D2). In our view, the changes to the roof feature, made in the further amendments to the proposal, to flatten the once prominent skillion roof in order to avoid deleting GFA below diminished the contribution the roof feature made to the towers and the image of the proposal. The changes made to the roof feature are contrary to Mr Dickson's evidence in the joint report that the floating top element is an important visual device. The flattening of the roof over each tower means it no longer "floats" or is easily distinguishable as a feature.

Conclusion

1. The insufficient side setbacks and separation of the proposed towers from future neighbouring development will result in unacceptable amenity impacts on the internal amenity of apartments, including visual privacy from adjoining development, views and solar access. For this reason, the proposal does not achieve design excellence pursuant to cl 7.11(2)(d)(iv) of LEP 2011.
2. The proposal does not have a sufficient percentage of apartments with 2 hours of reasonable quality solar access between 9am and 3pm at mid-winter. The deficiency in solar access is due to the unsatisfactory orientation of many apartments. The proposal does not achieve design excellence as it does not optimise quality solar access to a sufficient proportion of apartments, pursuant to cl 7.11(2)(d)(viii) of LEP 2011.
3. Because the proposal does not achieve design excellence, the building envelope of the proposal cannot be availed of the additional height and GFA available under the specific exception clause, pursuant to cl 7.28(2)(b) of LEP 2011. As the proposal exceeds the development standards under cll 4.3 and 4.4 without written requests to do so, the application must be refused.

Orders

1. The orders of the Court are: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is dismissed. 3. Development Application No. 493/2020 for two residential towers containing 708 apartments above an approved 7-storey podium, at 189 Macquarie Street, Parramatta, is refused. 4. The exhibits, other than exhibits 1 and E, are returned.

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Susan O'Neill Commissioner of the Court

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Amelia Thorpe Acting Commissioner of the Court

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