Kasif v Georges River Council

Land and Environment Court (NSW)|2019-12-10

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of a development application, DA2018/0441, by the respondent, Georges River Council (the Council). The application is for the demolition of existing structures and construction of a residential flat building (RFB) at 22 Empress Street, Hurstville (the site or appeal site). The RFB will contain 6 units in a 4-5 storey configuration over a basement car park
The key issue associated with the appeal relates to the height, bulk and scale of the proposed RFB given the narrow width and small area of the site which is agreed to be isolated by adjoining development. Associated issues include the lack of communal open space provided and the use of the front setback area.
The site is located on the eastern side of Empress Street. It is 490.4m² in area with a 10.6m wide frontage to Empress Street and also to Cow Lane at the rear, and a depth of 48.7m. It currently contains an existing single storey cottage adjoined to both common boundaries by 4 storey RFBs, causing the site to be isolated. The site is within walking distance of the Hurstville railway station and town centre with the 'top end' of Empress Street adjoining the town centre and then sloping down to Empress Reserve at the 'bottom end' of Empress Street. The site is located roughly midway in the street.
As a result of maximum permissible height and floor space ratio (FSR) standards introduced into the Kogarah Local Environmental Plan 2012 (the LEP) in 2017, development in the street is in transition as underdeveloped sites are redeveloped in accordance with the controls. However, a number of sites also contain older (1970s) RFBs agreed to be unlikely to be redeveloped in the foreseeable future, particularly on the eastern side of Empress Street where the site is located.
In granting consent to a development on the adjoining site at 18-20 Empress Street in 1996, the Council recognised that the appeal site would be isolated, given its size and limited width. A condition was therefore imposed requiring provision of a reciprocal Right of Carriage Way (ROW) across the driveway of 18-20 Empress Street to enable access to any future basement on the appeal site. This driveway was subsequently constructed and owner's consent provided to use the ROW as part of the application.

Statutory controls

The site is zoned R3 Medium Density Residential under the LEP and RFBs are permissible with consent in the zone. The objectives of the R3 zone are stated in the LEP as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The R3 zoning applies to both sides of Empress Street other than at the top end of the street in proximity to the town centre and north of Empress Lane, where the zoning is R4 High Density Residential (eastern side) and B4 Mixed Use (western side).
In 2017, as part of a strategic review and amendment of the LEP (referred to as the New City Plan), the present planning controls became effective. The amendment set the maximum height in the R3 zone (in which the site is located) at 15m and established a maximum FSR of 0.5:1. Prior to that amendment, the only height and density controls were contained in the Kogarah Development Control Plan 2013 (the DCP). The maximum height under the DCP was 12m, or 3 residential levels, with no FSR but a density requirement of 1.1m² of site area per 1m² of dwelling.
The site does not meet the minimum lot size of 1000m² for RFB development required at cl 4.1A of the LEP. The only LEP objective of cl 4.1A is to achieve planned residential density in certain zones.
In order to grant consent to the minimum lot size contravention, the application relies on cl 4.6 of the LEP, the relevant provisions being as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) 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. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence…
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development) (SEPP 65) also applies as does the associated Apartment Design Guide (ADG).
Development is also subject to the provisions of the DCP. However, the DCP was not updated to match the LEP provisions adopted in the New City Plan. Accordingly, a number of DCP provisions directly conflict with the LEP. Where such a conflict exists, the provisions are not applied. However, other provisions, such as site frontage and setbacks, are considered by the Council to remain compatible with the new LEP controls and therefore are applicable.

Background to the appeal

Development application DA2018/0441 was lodged with the Council in October 2018.
The application was notified and one objection was received from residents of a unit at the first floor level of the adjoining RFB at 24-28 Empress Street to the south of the site. The objection raised concerns by the residents of that unit in terms of the loss of sunlight from their north facing unit and the close proximity of the development, impacting on their quality of life and on their unit's value.
In November 2018 the application was referred to the Council's Strategic Planning division and their response was contained in the Council's filed bundle of documents (Exhibit 2 Tab 8). The following is an extract comprising paragraphs 6 and 7 of that response: "6. The existing streetscape and immediate surrounding area is a mixture of contemporary (late twentieth century architecture) and federation dwellings with no prevalent architectural character. The recent approval of the development at 19-23 Empress Street (DA 2017/0465) has set the precedent for the acceptable future bulk and scale of developments in this section of Empress Street. The approved development is for 4 storey RFB with basement parking in a contemporary design (sic). 7. The proposal is 4 storeys in height, however it presents as a 5 storey building at the Empress St elevation partly due to slope and with part of the basement level protruding above the ground. The building form is articulated with vertical elements and the use of the recessive colour palette on the top floor helps to reduce the visual bulk off the top. However, the overall bulk and 5th storey appearance could be reduced if the top floor is setback further from the front building alignment. It is recommended that the top floor be setback a minimum of 3m from the front building alignment possibly by removing a bedroom from the top floor apartment."
The response goes on to state that the adjoining properties are unlikely to be redeveloped. It also recommends changes to the schedule of colours and finishes, in terms of materials, and that the lobby entrance be more visually prominent to assist in wayfinding and safety. It also states that the location of fire hydrants, substations and other essential building services must be appropriately screened and integrated into the design of the facade.
The application was modified to respond to these comments, with the upper level setback and materials changed. The amended application was not re-notified as it was considered to have improved environmental outcomes.
On January 2019, the applicant lodged a Class 1 appeal against the deemed refusal of the application. A Statement of Facts and Contentions (SFC) filed by the Council raised a number of grounds for refusing the application.
Conciliation was held between the parties under s 34 of the Land and Environment Court Act 1979 but was terminated. With the leave of the Court, following conciliation, the application was subsequently amended to address a number of the contentions raised. An amended SFC was filed noting that a number of contentions still remained.
Following expert conferral, further contentions were resolved with only planning and design contentions remaining. Expert evidence on these was provided by planners for the parties: Mr Moroz for the applicant and Mr Frayne for the Council.
In their expert Joint Report (Exhibit 4), it was agreed that the development is below the maximum permissible FSR and height, that the proposed density is acceptable given the FSR is compliant, and that there will not be unacceptable impacts in terms of overshadowing, privacy or amenity for any future occupants or neighbours, noting the site's development constraints.
It was also agreed that the development provides deep soil landscaping in excess of that required by the ADG; 11.52% of the site versus an ADG required 7%. Further, given the narrowness of the site, achieving substantial deep soil landscaping in the side setbacks, whilst desirable in normal circumstances, could not be realistically realised.
It was also agreed that a break should be provided to the southern elevation which would make that building wall length acceptable. Further, contentions on safety could be resolved by appropriate access controls at the front and rear of the site, and the form of fencing was also agreed. It was also agreed that the provision of an aboveground parking structure in itself was not inconsistent with the streetscape and the landscaping proposed to the rear resolved any concerns with the development's presentation to Cow Lane. Minor design improvements were also agreed to resolve privacy including the side of front and rear balconies having privacy screens and two ground floor units having highlight windows.
At the commencement of the hearing, leave was sought, not opposed and granted to further amend the application to incorporate the minor design modifications arising from the recommendations in the planners' Joint Report.
The planners however, remained in disagreement in terms of the compatibility of the development with the streetscape and whether the height, bulk, scale and design of the development was appropriate given the lot size.
The contentions the subject of evidence in proceedings therefore related to whether or not the revised design adequately addressed the site's size and width, and therefore was acceptable in its context and within the streetscape, including the treatment of the front setback area. It was also not agreed as to whether communal open space should be provided as none was proposed. These issues are separately discussed below
The hearing commenced onsite and the objector did not attend. The Court, the parties and the experts viewed the site and properties in the vicinity, walking Cow Lane and Empress Street from Empress Reserve to the south through to Empress Lane to the north.

Compatibility with streetscape and local area character

Attached to the planners' Joint Report (Exhibit 4, Annexure A) was a "Contextual Analysis" of the local area in terms of its existing and likely future character and an assessment by each expert as to whether or not the modified proposal was compatible with this character.
The assessment identifies the local area as primarily the visual catchment of the site. This is generally confined to Empress Street but also includes Finney Street where it terminates at Empress Street diagonally opposite the site.
Empress Street is straight and slopes steeply from Railway Parade to its termination at Empress Reserve. Therefore, built form in the street can be viewed from Railway Parade and development in Railway Parade is visible from the lower parts of Empress Street.
In terms of the present character of the area, development on the eastern side of Empress Street predominantly consists of 3-4 storey 1970s walk-up RFBs other than 2 detached dwellings at 6 and 8 Empress Street. The RFBs are on lots with a street frontage of at least 20m.
Dwelling styles and densities on the western side are more diverse than on the eastern side, with a mix of dwelling houses, townhouses and RFBs.
The area is transitioning with the remaining low density detached dwellings being replaced with higher density contemporary RFBs of 4-5 storeys set amidst the older RFBs and medium density housing developments. The exception is at the top end of Empress Street on the northern side of Empress Lane where new higher density development predominates at up to 8 storeys.
The planners agreed that side setbacks in the area are in the order of 3-5m and are either turfed or landscaped. The front setbacks are predominantly open and range between 4.5m and 6m. On the eastern side of Empress Street, north of the site, this treatment consists of lawns, low-level planting low-key fencing or retaining walls, letterboxes, bin storage and driveways. South of the site, front setbacks also contain low-key elements but there are tall canopy trees in these setbacks which dominate that part of the street.
In the higher density development south of Finney Street, front setbacks are generally open and not dominated by structures other than prominent planters at 43-47 Empress Street. Mr Moroz also noted the fire hydrant and entry portico associated with the RFB nearing completion at 35-37 Empress Street.
There are new RFBs at 35-37 and 43-47 Empress Street. The development at 35-37 Empress Street presents as part 4 part 5 storey with a 4 storey scale to Empress Street, whilst 43-45 Empress Street is 4 storeys over basement parking. There is a vacant site at 19-23 Empress Street with a consent for a 4-5 storey RFB appearing as 4 storeys to Empress Street and 5 storeys to Finney Street. North of Finney Street, landscaping is less dominant in the streetscape and development forms less consistent.
The planners also noted the garages associated with the older housing RFBs are commonly located at ground level but new RFBs have basement parking.
The visual catchment is somewhat dominated by the development at the top end of Empress Street with 8 storey RFBs. To the west, 11 Finney Street and 33-35 West Street (the adjacent parallel street to Empress Street) contain 4-5 storey developments with the same zoning and development controls as apply to the site.
Development in Cow Lane is mixed with some sites providing open rear setbacks, some fenced and others using the lane for garage and servicing.
In terms of the future character, the planners agreed that this is best determined by consideration of the planning framework that applies, recent developments approved in the area, and the likelihood and extent of change given the present development mix and ownership patterns. Therefore, the zoning, permissible FSR and height, and setbacks are the most deterministic planning controls with respect to likely planning outcomes.
The majority of the area is zoned R3 with a maximum permissible height of 15m and FSR of 1.5:1. At cl 4.1A of the LEP, in the R3 zone, multi dwelling housing requires a minimum site area of 800m² whilst 1000 m² is required for RFBs and seniors housing.
The planners agreed that redevelopment of the site from a dwelling house to a high-density form such as an RFB was necessary and appropriate given the existing context of the site. Further, the density is acceptable having regard to the future context for the site given the FSR permissible by the 2017 LEP amendment.
Mr Frayne accepted that undeveloped lots in the area would transition to a form of development compliant with the new FSR and height controls, with that height being 1-2 storeys above the height of the existing RFBs which were developed when the height limit was 4 storeys.
However, he argued that the generally fragmented ownership and development pattern makes it unlikely that the eastern side of Empress Street south of Finney Street would develop to this potential in the foreseeable future.
He accepted the incompatibility of the existing dwelling house on the site remaining given its relationship with adjoining RFB development and the objectives of the zone. However, given the extremely small size and width of the site in a context of wider frontage sites containing RFBs, he considered it not possible for the built form on the site to differ considerably from the surrounding established context and still continue to be appropriately compatible with that context.
Therefore, notwithstanding the proposal's compliance with the FSR and height controls, Mr Frayne argued that the building would not fit appropriately in its context. The development of the site must weigh the existing character more heavily than would be the case in circumstances where there was substantial potential for redevelopment on the same side of the street.
Mr Frayne argued that, other than 18-20 Empress Street which reads vertically, the street address of RFBs on the eastern side of Empress Street generally reads horizontally due to the buildings being wider than they are tall and with the fenestration, balcony design and finishes leading to few dominant vertical features. However, Mr Moroz argued that 24-28, 40-42 and 2-4 Empress Street all have notable vertical proportions.
Nevertheless, Mr Frayne considered the proposal to be inappropriate contextually with regard to the Empress Street streetscape for two reasons.
Firstly, the height reads as 5 storeys with only a slight recess at Empress Street. This is excessive and will not be an appropriate contextual fit within the streetscape particularly given the narrowness of the site.
Secondly, although the colour and setback of the upper storey assist, they are insufficient to prevent the proposal projecting above surrounding sites and thus being visually incoherent and dominant in the streetscape. In particular, the development will be visible and prominent both north and south along Empress Street above the existing buildings, albeit elements would be screened by vegetation when viewed from the south. The proposal read as a highly vertical building towering above its neighbours whereas a lower form at the street level would reduce this verticality.
Mr Frayne had no issue with the height as viewed from Cow Lane considering it appropriate given the rise in the land in that location. The concern was with the visual dominance at Empress Street and, prior to the amendments agreed to, with the proposed elements in the front setback such as the entrance canopy and stairs, and the unrelieved southern wall.
Finally, in submissions, the Council argued that the LEP height control is a maximum which, whilst not being achieved, could not expect to be achieved on a site which is less than half the minimum required area for an RFB in the zone. Further, a more skillful design would revisit the entry location and design of the basement to reduce the impacts associated with the location of the ROW on the adjoining site. The development also does not 'step down' in the street to follow the topography as occurs with existing development.
Mr Moroz argued that the remaining detached dwellings at 6 and 8 Empress Street are likely to be redeveloped in the short-term to a height and density reflective of the LEP controls and are on the same side of the street as the site. Further, 18-20 Empress Street was in one ownership, therefore adding another level was possible. He also noted the likely future redevelopment to the same height opposite at 19-23 Empress Street. These developments were indicative of the likely transition in form envisaged to occur in the street.
He noted that the ADG, at Part 1B - Local character and context, identifies a need to establish the desired future character of an area through a strategic planning process.
Accordingly, that desired character was determined by the Council's strategic review which set the new FSR and height controls for the street notwithstanding the existing built form and height. These controls facilitate the form of development proposed which did not, in any event, seek to maximise either the height or FSR available given the site's constraints.
As it was agreed that the proposed setbacks were acceptable having regard to the site's constraints, the zoning, FSR and height provisions must determine the envisaged future character. What is proposed is consistent with the objectives of the zone and compliant with those standards. As the area is in transition, over time it will have a different character and feel than exists today. What is proposed will be compatible with that character.
In addition, the basement level was set by the development approval for 18-20 Empress Street which impacts the height. Specifically, the entry to the basement from the ROW was on the low side of the site requiring the basement to be elevated above ground level with the residential floors above. The height was nevertheless compliant with the maximum height permissible being between 300mm and 2.1m below that maximum height.
Further, the fifth level is setback 11.22m from Empress Street which is well in excess of DCP requirements which range between 5m and 7m. Therefore, whilst this top level will be visible, Mr Moroz was not of the opinion that it would read as a prominent building feature. The setback creates a discernible break in the verticality of the building and the use of dark materials would further reduce its visual prominence from the street and for neighbours. Mr Frayne also accepted the colours now proposed for this element were a much better fit than had been previously proposed and now had no issues with the materiality of the design.
In this regard, the development also incorporates a number of design elements with the intent of establishing an acceptable built form presentation to Empress Street having regard to both the established and desired character of the area.
Mr Moroz referenced the Court's decision in Voloshin v Randwick Council [2007] NSWLEC 428 where Roseth SC established the Court's planning principles for assessment of height, bulk and scale. At [30] and [31], he states: "30 The debate about height and bulk can be meaningful only against the background of local planning controls, such as maximum height, floor space ratio, site coverage and setbacks. While these controls are usually also based on subjective judgment, they have been through a statutory process involving exhibition and the consideration of public comment. They therefore express the subjective preferences of a local community and should be given greater weight than the subjective preferences of individuals. 31 Some planning instruments and policies include objectives for controls, others do not. Whether such objectives are expressly stated or not, the controls are usually aimed at, on the one hand, constraining the adverse impact on neighbours and surrounding areas and, on the other, achieving a certain urban character. The desired character may be the continuation of the existing or, in areas where redevelopment is envisaged, the creation of a new character."
In this regard, the existing character was of varied building forms, heights and ages. What is proposed reflects the strategic direction the Council has chosen, namely to create a new character by adopting new controls which are already resulting in redevelopment in Empress Street, which will continue. These controls in effect add one additional storey to the height of older RFBs in the street and do not require terracing of development down the street.
The most recently approved developments in the street have the same common features as are proposed in the application, namely: part 4 and part 5 storeys in scale responding to the natural fall of the land; the incursion of some elements within the front setback; and a recessed upper level.
Further, the site cover control is complied with and the development includes 50.3m² of landscaping within the front setback constituting 45% of the front setback area. This reinforces the desired low-key landscaped setting forward of the building line. In this regard, Mr Moroz calculated that some 64% of the front setback area would comprise deep soil landscaping enabling canopy trees to be planted.
Mr O'Gorman-Hughes, barrister for the applicant, also submitted that, given a driveway did not need to be provided on the site, the area normally set aside for such a use could and would instead be primarily landscaping. Mr Moroz also provided examples of a number of existing and proposed developments that had various intrusive elements in the front setback area.
In terms of amenity for future residents, all apartments were larger than the minimum area required by the ADG, will be naturally crossed ventilated, and 83% will receive the required amount of solar access.
Further, there were no controls which reference 'verticality' of buildings but in any event the building is modulated, particularly at upper levels. The fifth storey was only required due to the elevated car park podium and its location as determined by the approval access, but otherwise the RFB was confined to 4 residential levels.
Finally, the use of the front setback area for services had been minimised in order to minimise streetscape impacts. No substation was required, only a fire hydrant. Entry stairs were also proposed but the applicant agreed to modify both the portico and the fence having regard to the Council's concerns. An access lift was also proposed, as it was required for equitable access, but this could be open and screened albeit its location was dictated by the location of the basement entry.
In submissions, the applicant reiterated that the strategic introduction of the new controls in 2017 meant that height was supported in the area beyond that of the existing dwelling stock, including the existing RFBs, and the character of the area would change, and this had to be considered acceptable. Additionally, this was with a backdrop of new buildings up to 33m tall at the top of Empress Street adjoining the Hurstville town centre.

Minimum lot size

The lot size does not meet the required LEP minimum at cl 4.1A of 1000m². Therefore cl 4.6 of the LEP must be satisfied in order for consent to be granted to the application.

The clause 4.6 request and applicant's position

A cl 4.6 written request (the request) was submitted with the amended application and comprised part of a bundle of documents tendered by the applicant (Exhibit C).
The request seeks to demonstrate that compliance with the minimum lot size standard is unreasonable and unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the standard.
The request notes that the existing lot size at 490.4m² is a 509.5m², or 50.96%, variation to the 1000m² standard but argues that decisions of the Court establish that the extent of the numerical variation does not form part of the required test under cl 4.6. One such decision is Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 where there was a 55% exceedence of height and a 20% exceedence of FSR.
The request references the various Court authorities that deal with meeting the requirements of cl 4.6 including Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action).
In Wehbe, Preston CJ identified at least five ways in which it could be demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The request relies on two of these five ways (referred to as Wehbe 1 and Wehbe 3); namely that the objectives of the standard are achieved notwithstanding the numerical non-compliance (Wehbe 1) and that the underlying object or purpose (of the standard) would be defeated or thwarted if compliance was required, and therefore compliance is unreasonable (Wehbe 3).
In terms of the Wehbe 1 test, there is only one objective associated with the minimum lot size standard, being to achieve the planned residential density in certain zones.
In this regard, the request argues that the site is zoned R3 Medium Density Residential with a maximum permissible FSR of 1.5:1. This zoning and FSR are the best indicators of what the planned residential density for the site is, namely a development achieving something in the order of 1.5:1 FSR. The proposed RFB development, with an FSR of 1.33:1, therefore assists in meeting the sole objective of the standard.
The request also notes that the site has been isolated by adjoining RFBs on both sides. Importantly, the Council recognised this in approving the adjacent RFB at 18-20 Empress Street by requiring that development to provide a ROW benefiting the appeal site to connect with a future basement car park beneath the site. This ROW has been constructed at RL 51.65. This level was specifically set to enable provision of a basement. Therefore it is reasonable to conclude that this was to facilitate an RFB over a basement being developed on the site. It therefore also follows that the Council had planned to allow an RFB form of development on the site, that form best achieving the site's development potential notwithstanding its isolation.
In accordance with that decision, the application proposes to use the ROW to access a basement car park to service an RFB. Therefore the objective of the standard is met by the proposed development notwithstanding the numerical non-compliance with the lot size as the planned residential density for the site anticipates an RFB with basement parking.
It is also unreasonable or unnecessary to require strict compliance with the standard in these circumstances where there are no significant or unreasonable adverse impacts from the variation and an important planning goal (increased density) is achieved by allowing the variation.
In terms of Wehbe 3, if strict compliance was required, the result would be that the site could not achieve its planned residential density. If the standard was strictly applied, it would preclude all forms of medium density residential development given cl 4.1A requires a minimum site area of 800m² for multi dwelling housing and 1000 m² for RFBs and seniors housing. Therefore, none of these types of medium density housing could be developed. Instead, all that could be achieved would be lower density housing unlikely to achieve the objective of the clause to achieve the planned residential density in an R3 zone. It would also reflect an outcome that may be expected on an isolated site which is what the Council sought to avoid in requiring the ROW to service appropriate redevelopment of the site. Therefore, the objective of the standard would be defeated or thwarted if compliance was required and, accordingly, such compliance is unreasonable.
The request also notes that the proposal is compliant with, albeit below, the permissible FSR and height. Therefore, the lot size has no bearing on the development's ability to appropriately respond to LEP and DCP standards and controls notwithstanding the numeric variation to the standard.
In this regard, the building has well-articulated facades with a range of materials and its scale and form is congruous with a medium density scale and with the character of its setting. The development is an appropriate response to the site and its context and will be in unity with the planned residential density envisaged for the area despite the shortfall in site area.
The request also argues that the proposed building has been designed as far as practicable with the intent of mitigating any adverse impacts on the amenity of adjoining land in terms of solar access and privacy. It responds to the site's proximity to the Hurstville town centre and will be a contemporary and appropriately scaled RFB in the locality whereas the existing cottage on the site is at odds with the scale of development observed within its immediate context.
Finally, the proposed built form characteristics will be not inconsistent with that observed in a number of developments, either approved or under construction, in proximity which accord with the height and FSR increases permitted by the 2017 LEP amendment. In this regard, it is anticipated that the built form and scale of development on undeveloped sites within the immediate and local context will change as these properties are redeveloped to accord with the height and FSR controls. Conversely, retaining the existing single storey cottage on the site would be at odds both with this new development and with the older adjoining RFBs.
The request then details the environmental planning grounds, or EPGs, said to be sufficient to warrant the contravention sought. It largely relies on and adopts the same arguments as provided to demonstrate that compliance is unreasonable or unnecessary in the circumstances.
In summary, these EPGs are that the site is isolated by adjacent RFBs at 18-20 and 24 Empress Street. However, the approval of the RFB at 18-20 Empress Street expressly sought to ensure that the appeal site could be redeveloped to its potential under the zoning, requiring that an ROW be provided on 18-20 Empress Street at a level and location that would enable access to a basement beneath the appeal site to service a future RFB.
The circumstances in which the Council imposed the requirement for an ROW on an adjacent site to service an RFB redevelopment of the appeal site, and the general planning benefits of not isolating the site, are relevant EPGs which are sufficient to justify the variation to the standard sought.
Conversely, strict compliance with the standard would result in an isolated site precluding its redevelopment in accordance with the objective of the standard.
Further, however, the proposed development is of a form and scale not incompatible with that envisaged by the planning controls for the site and provides additional dwellings in close proximity to public transport and the facilities and services available within the Hurstville town centre.
The request also references the objects of the EPA Act at s 1.3 being EPGs that Preston CJ stated in Initial Action could be considered. One such objective is (c): "to promote the orderly and economic use and development of land". What is proposed achieves that objective which could not otherwise be achieved if the standard was not varied.
Finally, the site is unusual given the quantum variation to the standard sought and is therefore not typical of an EPG that might apply to other sites within the R3 zone.
The request then deals with the public interest consideration, namely whether the development meets the objectives of the standard and of the zone, which is the test under sub cl 4.6(4)(a)(ii). This test is subject to the Court's separate finding of satisfaction and is not reliant on the adequacy of the cl 4.6 request. Nevertheless, the request also claims that the public interest would be met by, having already addressed the objective of the standard, considering also the two objectives of the R3 zone that are relevant to the application.
In terms of the first R3 zone objective, the request states that the proposal provides for the housing needs of the community within a medium density residential environment. It proposes 6 new dwellings in an RFB format in a well serviced location in proximity to public transport, open space, and services. The built form and architecture are consistent with that likely to be encountered in a medium density setting and will reflect the evolving context.
In terms of the second zone objective, the request states that the development provides a variety of housing types within a medium density residential environment with the RFB containing 3x3 bedroom and 3x2 bedroom apartments, catering for a variety of households. Moreover, the 3 bedroom dwellings are larger than have been approved or exist in current developments within the locality.
The request concludes that there would be no public benefit in maintaining the standard which would otherwise unreasonably restrict the development potential of the site by sterilising the form of development encouraged by the zoning. It would not allow the positive redevelopment of the isolated aged lower density housing stock that exists on the site. Importantly, the numerical shortfall and site area will not result in any unreasonable impacts from the development on adjoining development or the public domain. Therefore there is no public benefit in requiring compliance with the standard.

The Council's position

The Council did not accept that the cl 4.6 written request justified the minimum lot size contravention given the development proposed.
In this regard, whilst an RFB was appropriate for the site, the lot size and width did not facilitate the height, bulk and scale proposed. Supporting a contravention of the standard should be on the basis of an appropriate built form outcome which responded to the site's circumstances, which was not achieved by this application nor demonstrated by the written request.
In this regard, Mr Frayne referenced the numerous concerns with the development as outlined in responding to the streetscape and character issues, as previously summarised.

Communal open space

The ADG requires an area of communal open space, or COS, equivalent to 25% of the site be provided which, in this instance, equates to 122.6m². The DCP requires 180m² although the Council applies the ADG, rather than the DCP, control.
No COS is proposed. The Council sought for it to be provided as a rooftop terrace with the removal of an upper level apartment to facilitate this.
Mr Moroz argued that the ADG acknowledges that small lots may not be able to provide the 25% and allows alternative arrangements to offset the lack of COS provision. In particular, Objective 3D-1 references "an adequate area" of COS being provided to enhance amenity and provide opportunities for landscaping. However, the design guidance notes that, where developments are unable to achieve the required provision, such as on small lots, COS should be provided elsewhere such as in a rooftop terrace or common room, or by providing larger balconies or increased private open space, or by demonstrating good proximity to public open space.
The applicant noted that: Mr Frayne had accepted that it was inappropriate to provide a common room; rooftop terraces were prohibited by the DCP; larger balconies were provided than were required by the ADG (in most instances substantially larger); and the site was less than 200m from public open space.
Therefore, the small-scale of the development (only 6 apartments) with primary balconies notably larger than the minimum required in the ADG, and with convenient access for future residents to Empress Reserve close to the site (and which had barbecue facilities, covered play areas picnic table and areas of open space) confirmed that COS on the site is not warranted. Further, the balconies had greater minimum widths than the ADG required and were off primary living areas, therefore serving as a natural extension to living spaces. In addition, more deep soil landscaping was proposed on-site than required, which would add to the amenity of future residents of the 6 apartments.
Mr Moroz also questioned the merits of providing a rooftop terrace on such a narrow site which would inevitably result in potential acoustic impacts to neighbouring properties.
Conversely, Mr Frayne argued that the building and site lacks open areas for recreation with the outlook from balconies poor as they face the street and rear lane. Therefore, the balconies were not capable of providing the level of amenity that a central COS area could provide in terms of openness and space for outdoor recreation.
Further, the role and purpose of a public reserve such as Empress Reserve is inherently different to that of semi-private COS provided within a development. Empress Reserve is also already relied upon by the residents of the older 1970s RFBs in the street which do not have COS.
For these reasons, Mr Frayne considered the provision of COS both possible and desirable. The COS could be provided as a rooftop terrace as the Council had permitted in other developments, subject to careful design and an appropriate plan of management to control use. This terrace could replace an upper level apartment.
In submissions, the applicant reiterated that the DCP states that, in the R3 zone, rooftop terraces are generally prohibited, and are also prohibited in multi-unit developments other than where associated with an apartment.
In oral evidence, Mr Frayne thought this was because of likely amenity impacts in locations that were not high density but he advised that the Council had effectively abandoned this control, with rooftop terraces approved for RFBs including in the vicinity.
However, Mr O'Gorman-Hughes submitted the reason the applicant had not proposed a rooftop terrace was given the narrow constraints of the site and the close proximity of the proposed development to neighbours, including to their bedroom windows. Further, by the time planter boxes were provided for privacy, the width would only be some 5m which made usability of such space for communal gatherings questionable. The ADG also notes that that the size, location and design of COS will vary depending on a site's context and scale of development, and that COS is particularly important in higher density developments (to provide amenity). This is not a high density development with only 6 apartments on a site with limited size or ability to provide any COS, which the Council accepted could not be provided at ground level.

Conditions of consent

Not all of the proposed conditions of any consent were agreed. In particular, the Council sought to impose deferred commencement conditions requiring elements of redesign, which the applicant opposed. In particular, these sought to relocate the building 500mm closer to Cow Lane in order to reduce the height and visibility of the RFB and to require the provision of rooftop COS in place of an existing top floor apartment. A number of conditions were associated with the redesigns sought, which were therefore also opposed.
The applicant did agree to one proposed design change, to reduce the width of the front entry stair, but argued that this should not be a deferred commencement condition but be part of the other agreed minor design changes outlined in operational condition 10, where the changes are required prior to a construction certificate being issued for the development.
The applicant also sought a change in the wording of an agreed design change in condition 10(c) requiring screening of a (fire) booster, to ensure operational requirements were not jeopardised by any such screening.
The applicant also sought that any reference to the requirements for the driveway design refer to the rear driveway off Cow Lane only (given no changes could be undertaken to the driveway to be utilised from Empress Street that was on the adjoining property).
Finally, the applicant sought to delete an operational condition requiring increased setbacks for balustrading and structures to Empress Street which the Council sought in order to provide increased landscaping and improved streetscape presentation. This requirement was opposed by the applicant on the basis that these were (unjustified and unnecessary) design changes.

Findings

In order to gain consent to contravene the minimum lot size standard at cl 4.1A of the LEP, the requirements of cl 4.6 of the LEP must be met.
This, firstly, requires, at subcl 4.6(4)(a)(i), that I am satisfied that the submitted cl 4.6 written request demonstrates that compliance with the standard is unreasonable or unnecessary in the circumstances, and that there are sufficient environmental planning grounds to vary the standard as proposed.
For the reasons that follow, which largely reflect the reasons outlined in the request which I have already summarised, I am satisfied that the written request meets the requirements of subcl 4.6(4)(a)(i), and should therefore be upheld.
Firstly, the request notes that the lot size cannot be increased to meet the minimum lot size required by the LEP given the nature of adjoining development. Further, this was recognised by the Council when approving the redevelopment of an adjoining site, in requiring that development to grant reciprocal rights for the appeal site to use their driveway to access a future basement on the appeal site. Such a basement would not be required other than for a higher density development. This was notwithstanding, and acknowledging, that the size of the appeal site would not meet the required minimum for any form of higher density development under cl 4.1A.
Secondly, it was agreed by the Council that the site can and should be redeveloped for a residential flat building, or RFB, notwithstanding its size, and that to remain developed with a single storey cottage would not meet the objectives of the medium density zoning of the site.
Thirdly, the development demonstrates that the site can be developed for a residential flat building without any unreasonable adverse impacts on neighbouring properties or future occupants notwithstanding its size. Therefore, the lot size does not preclude the form of development envisaged by the zoning.
It would therefore be unreasonable to refuse the development on the basis of the size of the site which is unable to be increased given the circumstances and where the proposed development, nevertheless, meets the objectives of the standard, as the request claims.
These circumstances also provide sufficient environmental planning grounds, as summarised in the request, to support the development notwithstanding the area of the site.
As outlined in the request, the development does not seek the maximum permissible height or FSR acknowledging the constraints of the site area, width and context, but nevertheless provides a form of development and density commensurate with the zoning. (The planning experts agreed that the density was appropriate given the FSR proposed).
As indicated, the development also utilises a common access arrangement specifically intended by the Council to be used for this purpose in any redevelopment of the site. By not providing a driveway on the site, the development is able to meet a number of DCP objectives and controls for RFB development, such as site cover and deep soil landscaping provision.
The upper level is setback from the street, and compliance with core ADG requirements are achieved in terms of solar access and natural ventilation to apartments. This is despite the area and width constraints of the site and albeit separation distances to adjoining development cannot be achieved. In this regard, the two adjoining properties are unlikely to be redeveloped in the foreseeable future and both contain RFBs which were developed under former controls where the height permissible was less than exists today. The minimisation of amenity impacts on these neighbours is a further ground argued in the request to allow the contravention notwithstanding the constraints of such a small, narrow site and the fact that RFBs adjoin to both boundaries (which would normally make acceptable impacts difficult to achieve).
In summary, as outlined in the request, the circumstances in which the Council imposed a requirement for the ROW on an adjacent site to service an RFB redevelopment of the site, and the general planning benefits of not isolating the site, are relevant environmental planning grounds which justify the variation to the standard sought.
The redevelopment also achieves an object of the EPA Act, being to enable the orderly and economic development of the land. Conversely, strict compliance with the standard would result in an isolated site precluding its redevelopment in accordance with an objective of the standard.
I also agree with the ground stated in the request that the site is unusual given the quantum variation to the standard sought and is therefore not typical of an environmental planning ground that might apply to other sites within the R3 zone. Approval to the lot size contravention in this instance will therefore not create an undesirable precedent.
I am also separately satisfied, as I am required to be at subcl 4.6(4)(a)(ii), that the development is in the public interest as it meets the single objective of the standard to facilitate development which achieves the desired density in an R3 zone, and also meets the two applicable objectives of the R3 zone.
In this regard, the development will increase the number of dwellings on the site to align with a medium density, rather than a low density, zoning. Specifically, the development provides for the housing needs of the community within a medium density residential environment. It proposes 6 new dwellings in an RFB format in a well serviced location in proximity to public transport, open space, and services, being the Hurstville town centre. The built form and architecture are consistent with that likely to be encountered in a medium density setting and will reflect the evolving context.
The development also contains 3x3 bedroom and 3x2 bedroom apartments, catering for a variety of households. Moreover, as noted by the applicant and not disputed by the Council, the 3 bedroom dwellings are larger than have been approved or exist in current developments within the locality.
I therefore agree with the applicant that there would be no public benefit in maintaining the standard which would otherwise unreasonably restrict the development potential of the site by sterilising the form of development encouraged by the zoning. It would not allow the positive redevelopment of the isolated aged cottage that exists on the site. Also, relevantly, the numerical shortfall in the minimum lot area required will not result in any unreasonable impacts from the development on adjoining development or the public domain. Therefore, there is no public benefit in requiring compliance with the standard.
In summary, to refuse the development on the basis of the lot size would be to thwart the objectives of the zone and of the standard.
Having been satisfied that the development can be supported under cl 4.6 notwithstanding the lot size, I now turn to the merit considerations in dispute between the parties.
The first concern of the Council was in terms of the height, and associated bulk and scale, of the development, notwithstanding the development is below the maximum height and FSR permissible under the LEP.
In this regard, I consider the height as proposed is not a reasonable basis for refusal, nor that protection, or reflection, of the height and form of the existing adjoining 1970s RFBs is a reasonable expectation. This is particularly given the lack of adverse impacts on neighbours of the proposed development, notwithstanding the narrowness of the site or its size.
Providing amenity is retained for neighbours and will exist for future occupants (as was agreed is achieved by this application), there must be acceptance that applicants will seek a height commensurate with the controls.
In this case however, and in recognition of the limited size and width of the site and its context, a height less than, and up to 2.1m less than, what is permissible is proposed.
The area is agreed to be in transition including Empress Street itself. The height and scale now permissible in the street does not reflect what exists but what is intended. Whilst I accept that more redevelopment is likely to occur on the opposite side of the street to the side on which the site is situated, this will inevitably alter the character of Empress Street to that which exists today.
Further, I agree that 6 and 8 Empress Street, which are underdeveloped sites on the same side as the site, will likely seek to redevelop to the maximum height permissible by the controls. Any such redevelopment would therefore be compatible with the development proposed, being taller than the existing older RFBs on the eastern side of Empress Street.
Whilst the Council seeks to limit the streetscape presentation of the development to 4 storeys to 'fit' with existing development, this does not recognise that the new height controls do not require this. Nevertheless, the application was amended to setback the fifth storey to partially address this concern, and also the Council's concern with the height to width ratio on such a narrow site.
The verticality of the built form outcome is a product of developing an RFB on a narrow site where the height to width ratio will not reflect that achieved for wider, larger sites with the same height control. Nevertheless, the Council accepts that the site should be developed for an RFB and facilitated this in approving the RFB next door with a driveway to serve both properties. It is the location and level of that driveway which has largely determined the height of the development given it requires basement entry at a low point of the site, and thus fixes the level of the basement and of the floors above. Nevertheless, the proposed height remains below that permissible by the controls.
The absence of the need to provide a driveway on the site has obvious other benefits for the development. It enables additional landscaping, and less built form, in the front setback than could otherwise be achieved. This also makes the service and access elements that are required to be provided in the front setback area more acceptable and less dominant.
These elements are also not, in my view, a basis to refuse the application given the lack of ability to meaningfully relocate them on such a constrained site, but a site which Council accepts should be redeveloped for an RFB which requires such elements.
The absence of the driveway enables not only the ability to landscape the front setback but to potentially include canopy trees which will partially screen the built form and structures behind.
The density and form of the development responds to the site's proximity to the Hurstville town centre and will be a contemporary and appropriately scaled RFB in the locality whereas the existing cottage on the site is at odds with the scale of development observed within its immediate context and envisaged by the zoning and controls.
In summary, I consider that the proposed built form will be consistent with that of a number of developments, either approved or under construction, in proximity which accord with the height and FSR increases permitted by the 2017 LEP amendment. Therefore, the built form and scale of development on undeveloped sites within the local context will change as these properties are redeveloped to accord with the height and FSR controls. Empress Street will then contain a mix of modern and older RFBs at varying heights and widths which, nevertheless, collectively meet the objectives of the zone.
In these circumstances, I accept that the form of development proposed is reasonable. Whilst it may be inconsistent with the existing built form of the older RFBs in the street, that is not a basis for refusal given that the dominance of that built form in the streetscape will diminish over time as new developments, compliant with the new height and FSR controls, are developed, as is already occurring.
I therefore accept that disparity will exist between the existing older RFBs in the street and those now being developed, and may remain for the foreseeable future as a consequence of the new controls. However, it is, in my view, better to support development reflecting new controls whilst having regard to and protecting the amenity of existing development than it is to try and replicate older development which does not reflect the intended or inevitable future character.
Finally, I turn to the issue of the provision of communal open space, or rather lack thereof.
Having regard to the evidence and the circumstances, I consider that provision of communal open space for only 6 units is not required and cannot reasonably be provided without either reducing the density of the development or increasing its height, bulk and scale (which is already of concern to the Council) and with potential amenity impacts for neighbours. Reducing the density to 5 rather than 6 apartments would further reduce the requirement for such communal open space relative to the number of residents that would benefit from its provision.
To offset the lack of communal open space, balcony and apartment sizes are larger than required by the ADG and the site is less than 200m from Empress Reserve, at the end of the street, which provides a range of communal facilities which occupants can utilise.
Further, the DCP precludes rooftop terraces. Albeit in practice the Council not only approves but encourages this form of communal open space, that is not what the Council controls permit. The Council should therefore amend the DCP if the intent is to encourage rooftop terraces.
In any event, I accept that there would likely be amenity impacts if a rooftop terrace was provided, in terms of noise and privacy, given the proximity of neighbouring apartments to both side boundaries. I also note that the only objector to the original application raised a concern with the close proximity of the development to that objector's living areas and the resultant potential adverse impacts.
To address those impacts by either planters or screens would further reduce the area and dimensions, and therefore useability, of any rooftop communal open space provided.
I therefore agree with the applicant that there is insufficient justification to require provision of onsite communal open space for such a small site and development in particular given the provision of relatively large balconies and the close proximity of useable public open space at Empress Reserve to offset this lack of provision onsite. In coming to that position, I note that the parties agreed that provision of a common room was inappropriate and that communal open space could not reasonably be provided at ground level.
As there are no other merit issues raised with the amended application, or which warrant refusal, approval to the amended application is granted accordingly.
I now deal with the disputed conditions of consent.
The majority of conditions in dispute involve design changes sought by the Council which I have already indicated are not warranted, namely: relocation/lowering of the building; providing rooftop communal open space; and increasing setbacks for structures to Empress Street. Accordingly, these design changes are deleted as are related conditions dealing with these elements.
I also agree with the applicant that the agreed required reduction in the width of the front entry stairs should not be a deferred commencement condition but incorporated into operational condition 10, where other changes are required prior to a construction certificate being issued. Condition 10 is amended accordingly.
There therefore remains no deferred commencement conditions which is appropriate given there are no outstanding pre-conditions which preclude the consent from operating.
I also agree with the applicant that any reference to the requirements for the driveway needs to be confined to the rear driveway off Cow Lane. The affected conditions are amended accordingly.
Finally, in terms of the screening of the fire booster, I agree that any such screening has merit but must ensure operational requirements are not jeopardised. The wording of part (c) of condition 10 is therefore amended as follows: "(c) any booster assembly is to be appropriately screened with landscaping or structures where possible without impacting on the required access to, or operation of, the booster."

Orders

The orders of the Court are: 1. Leave is granted for the applicant to rely on amended plans. 2. The clause 4.6 written request for a variation to the minimum lot size is upheld. 3. The appeal is upheld. 4. Development Application DA2018/0441 for the demolition of existing structures and construction of a residential flat building at 22 Empress Street, Hurstville is approved subject to the conditions in Annexure A. 5. The exhibits are returned except for Exhibits A, B, C, E and 1.

Jenny Smithson Commissioner of the Court Annexure A (217 KB)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2020

(2018) 236 LGERA 256

(2007) 156 LGERA 446

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (6)

Cited By (1)