Kingsland Developments Australia Pty Ltd v City of Parramatta Council [2018] NSWLEC 1241 | Case summary

Kingsland Developments Australia Pty Ltd v City of Parramatta Council [2018] NSWLEC 1241 | Case summary | Zoe

[7]

Framework for the use of clause 4.6

Clause 4.6 is reproduced, relevantly, below: 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 sub clause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. …
I interpret cl 4.6 as imposing four preconditions before the Court can exercise the power to allow a contravention to a development standard (see Brown C in Carlingford Investments Pty Ltd v The Hills Shire Council [2015] NSWLEC 1022 at [24]): 1. A first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development is consistent with the objectives of the development standard in question. 2. A second precondition requires the Court to be satisfied that the proposed development is consistent with the objectives for development within the zone. (Under the construction of cl 4.6(4)(a)(ii) a positive finding on these two preconditions must draw a parallel positive finding on public interest as referenced in the clause). 1. A third precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, and with the Court finding that the matters required to be demonstrated have been adequately addressed. 2. A fourth precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed.
A negative finding on any precondition must see the appeal dismissed due to contravention of a development standard, whereas a positive finding would enliven the power to grant development consent subject to a merits assessment.
The first two preconditions for the application of cl 4.6 are concerned with "consistency", and thus require an interpretation of the term. In regard to this, I have been assisted by the interpretation found in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45] including its reference to the Macquarie Dictionary meaning. At paragraph [45] of this judgment, Biscoe J came to the view that the term "consistency' in this context (ie consistency with an objective contained in an environmental planning instrument) could be seen as synonymous with the term "compatible". I have also been assisted here, for me providing further illustration of the meaning, by the Macquarie Dictionary references (also at paragraph [45] of Addenbrooke) where consistency was found to mean "agreeing or concordant", "compatible", "not self-imposed or self-contradictory". I further find useful the interpretation that the test of "consistency" is less onerous than that of "achievement" in Moskovich v Waverley Council [2016] NSWLEC 1015 [53].

[10]

First height objective: to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan

There was a common view that, relevant to the subject proposal, this objective's focus on "transition in built form and land use intensity" was centrally concerned with what happens between the intended 72m high tower structures north of Bridge Street and the low density residential area to the south of the site. Nonetheless, the consistency of the proposal with the first height objective was a central point of disagreement in this case.
Mr Dickson used figures (eg Figure 1) to argue the proposal's response to the first height control objective and its concern about transition. He referenced the 72m building height and 6:1 FSR north of Bridge Street and the 9m height and FSR of 0.5:1 for the residential land to the south of the site. According to Mr Dickson, the proposal constitutes a "strong transition in its bulk" between the taller commercial development north of Bridge Street and residential development to the south. This is achieved by the indicated stepping arrangement of built form within the site, with: the taller built form to the north (up to a maximum of approximately 28.3m) - nearer the 72m height control area across Bridge Street; and less tall built form to the south (around 15m in height) - nearer the low density residential zone. Mr Dickson argues that the proposal "remains well below the transition line from 72m to 9m and achieves a "more natural transition to surrounding areas" than would a building which was compliant with existing height of building controls (that is, by providing say a 21m building height closer to the residential boundary to the south). Figure 1 - Graphic of Mr Dickson's argument on building height transition (Source: Figure 3 of cl 4.6 variation request by Dickson Rothschild Tab 5 Exhibit B)
Mr Mead did not support the subject proposal's stepping approach due to two main points. Mr Mead's view was that the first height objective was most concerned with nominating building heights for different identified spatial areas (as delineated in the LEP's height of building map). The transition in built form and land use intensity was provided by the delineated heights as mapped in the LEP. The emphasis should go on this nomination of building heights within the statutory LEP. As such, the transition was intended to occur at the mapping boundaries. For Mr Mead the 24m height control, across the subject site itself, provided for this objective's intended transition between the 72m height control north of Bridge Street and the 9m height control south of the subject site. Any stepping in height should occur within the bounds of the height controls. It was not appropriate for the subject site to take its cue from the Epping commercial core and its 72m tower proposals.
Mr Mead's second point here was that the subject proposal already needed the lower height shown nearer the residential lands to the south. He acknowledged the reduced height to the south of the site was beneficial but emphasised that the need for reduced height here comes from the fact that the building is 6m closer to the rear boundary at Levels 4 and 5 than the DCP allows: "therefore, it is not a matter of moving mass to provide a better outcome. If that mass were proposed in the first place, it would be unacceptable."
In regard to what I've described as Mr Mead's first point, I believe an unreasonably narrow interpretation has been adopted, not sufficiently mindful of the requirement here (LEP cl 4.6(1)) for a consent authority to have an openness to flexibility in determining whether the alternative solution (a building taller than the height control) is capable of being consistent with the objects of that control. Purpose or intent (of the nomination of building heights) needs to take primacy here. In the case of this particular objective the purpose of the LEP's height mapping is that "a transition in built form and land use intensity" be achieved. In this case the proposal's stepped height approach purposively provides for a transition of this kind. On the evidence of the proposal's physical configuration (ie mindful of the fact of the building height and mass transition that is evidently proposed), the proposal would be seen as consistent with first height objective.
Mr Mead's second point then questions the acceptability of the building height transition that is proposed. In my view the point does not disqualify the proposal in this jurisdictional test (ie in regards to the quest for consistency with this particular height control objective). The DCP setback requirements are part of the merits evaluation of the proposal and this proposal will need to be considered on its merits were it to pass the cl 4.6 test. I do note my opinion now that the proposal's treatment of the height/setback question is not so unreasonable as to trigger an overriding concern as to the legitimacy of the building height transition as proposed.
I find the proposal consistent with the first height objective.

[11]

Second height objective: to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development

Council's key concern here was in regard to visual impact. Mr Mead believed the non-compliant built form will likely be visible, including in the long term, at a height above the adjoining buildings to the west and east, assuming that development to the east will be required to comply with the planning controls, will be visible and out of context with that development. It was indicated that the proposal does nothing to "minimise visual impact" and is inconsistent with objective on those grounds.
The applicant's cl 4.6 request references the intended physical transition from a lower scale area to a high density mixed use town centre for this part of Epping. Mr Dickson argued that the planned tower buildings directly opposite the subject site will be the visually dominant buildings when viewed from Bridge Street and from the south. A set of drawings was provided indicating the scale difference between the buildings to the north and south of the Bridge Street road reservation, which he believed supported the view that the visual impact of the subject proposal was compatible with its context. Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 was referenced. In this case (and in a planning principle adopted by the Court), compatibility, in an urban design context, is seen to mean "capable of existing together in harmony" at [24].
I believe there are different questions involved here. I think the test of consistency with a height control objective of minimising visual impact is not necessarily accommodated by a finding that the visual impact (of a development) is compatible with its context. It seems to me it is a tougher test to minimise impact. It is a test involving the notion that there might have been greater visual impact but in this instance any such impacts are minimised.
For a viewer in the Bridge Street environs, the massing of the non-compliant area of the building is setback 6m from the road boundary, and in any event would be dwarfed by the intended towers to the north. It is clear, as Mr Mead indicates that there is the possibility of a blank wall for two levels were adjacent blocks to develop to the height control (ie 21m). However, this and a similar unevenness to final built levels (eg lift overruns) occurs from time to time and can occur here without bringing about visual impact (in coming to this view I have considered the diagrams provided at Annexure D to the joint expert report). The proposal's "progressive upper level setbacks and building articulation" (cl 4.6 request) would be taken as aspects which "minimised" visual impact, as would the intended accommodation of lift well within the main building massing. There would come a point where a building height at Bridge Street, while still meeting the "transition" objective, would be contradictory to the objective of minimising visual impact. But in my view a two level height overrun of the relatively small floor plate proposed here, and with the other design features indicated, can be seen as consistent with the objective of minimising visual impact. I also include here the consideration that the "transition" objective (cl 4.3(1)(a)) may have been able to be accommodated with a higher structure.
Mr Mead's evidence raised concerns reduced solar access to the adjoining commercial development to the west as a consequence of a combination of its height exceedance and side setbacks. I note the shadow diagrams provided in the current DA drawing set (Exhibit D) (and referenced in the cl 4.6 request) show similar shadow effects on existing buildings for the subject proposal and a compliant building form. It is noted that the drawings also indicate that the overshadowing effects of compliant tower buildings north of Epping Road would have a much greater overshadowing effect for the low density residential properties to the south. Having heard the expert evidence there are no substantive concerns with regard to disruption of views and loss of privacy pertinent to the consideration of the second height objective.
As will be noted later I raised concerns about the privacy effects of the southern portion of the proposed building. However these matters were addressed in evidence.
I find the proposal consistent with the second height objective.

[14]

Third precondition to use of cl 4.6: are there sufficient environmental planning grounds to justify contravening the standard

The cl 4.6 request references the "strategic location of the site in terms of sustainable transport and its connections to the Global Economic Corridor" (the "global economic corridor" is a term often used in Sydney's strategic planning documents and refers to an arc of land running from Sydney airport through the CBD and north-west to Macquarie University. The corridor has been shown as place of clustering of higher value economic activity and jobs. The most recent metropolitan strategy: A Metropolis of Three Cities - the Greater Sydney Region Plan (Greater Sydney Commission) references this spatial arc as the "eastern economic corridor").
The argument here is that the site's "strategic location" supports "relatively significant density", with the 3.5:1 FSR control suggested as inferring an appropriate level of development intensity. The cl 4.6 request argues a "mismatch" between height and FSR controls in the LEP and posits that exceeding the height control to the north provides the opportunity for reduced height to the south and generally reduced external impacts while, at the same time, going some way to meeting density ambitions.
Council's response to this argument was based on two main points. First was to say that an argument based on reducing (what might have otherwise been increased) external impacts as a point of justification for the height exceedance was invalid. I do not rely on this particular argument of the applicant ("generally reduced external impacts") here.
Council's second point raised the finding in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 by Pearson C, a finding not overruled in subsequent appeals in terms of the circumstance of that case (including by the Court of Appeal in Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248). The finding by Pearson C was that the public benefits arising from the additional housing and employment opportunities (coming about as a consequence of the departure from the LEP development standard, and as such likely available to other sites as well) were not sufficient environmental planning grounds to justify contravening the standards. While noting that finding, it is important to acknowledge here that the Court of Appeal judgment provides no specific limitations on Commissioners in exercising discretion in regard to what might constitute sufficient environmental planning grounds to justify contravening a standard. This is confirmed in Moskovich v Waverley Council [2016] NSWLEC 1015.
I agree with the view of Mr Dickson that the site is in a strategically important location, with its proximity to Epping railway station and its existing and proposed expanded connections to Sydney's public transport network as well as the nearby nodes of commercial and education activity (Macquarie Park and the university in very close proximity). It seems to me that there are stronger environmental planning grounds to deliver floor space in locations with good transport and employment and education accessibility than in areas with lower levels of accessibility. That is not to say that other planning controls fall by the wayside, with each case to be considered on its own merits. But it is locations such as this that accommodation is to be encouraged if Sydney is to become less car-dependent and thus more environmentally sustainable. In this case, the site was earmarked for an FSR of 3.5:1 in the LEP. The height non-compliance can assist in moving towards that suggested density, and for me this provides environmental planning grounds sufficient to justify contravening the standard.

[18]

Building massing

Council's argues that the proposal is inconsistent with the desired future character (DFC) of Epping town centre as provided at cl 4.1.5 of the DCP. This position was centred on building massing and its potential impacts. Mr Gough highlighted the following DFC provisions at cl 4.1.5: Building tower elements will be suitably setback from all street alignments so that they do not visually dominate the street, allow a pedestrian scale to be maintained at street level and reduce overshadowing impacts on the public domain.
For the reasons discussed above in regard to the cl 4.6 variation request, I believe the proposed building height at Bridge Street is satisfactory and the building would not visually dominate, or provide for unreasonable overshadowing. The retail uses and design improvements at street level (including removal of previously proposed substation) seem to bring potential for good levels of pedestrian scale activity.
Apart from the LEP's building height non-compliance, there were three other height non-compliances raised. These are addressed in turn below.
Control C.13 of section 4.1.5 of the DCP in regard to height limits for smaller sites which provides: Site amalgamation is encouraged to realise the development potential envisaged. For development exceeding six storeys in height, development sites must have a minimum area of 2,000m² with a minimum street frontage of 40 metres.
The site area is 1007m2 so a maximum height of six storeys would apply under this DCP provision. The building height is nine storeys. Mr Staunton advised that attempts had been made to bring about site amalgamation but that they had been unsuccessful. There are no stated objectives for this provision, with the exception of realising "development potential". For me the relevant concern for the building height is its impact, and this provision, while providing a signal in regard to potential, is not particular useful of itself in assessing the adequacy of the proposal.
The height of the Bridge Street podium exceeds 2-3 storeys as required by design control C.4 of section 4.1.5 of the DCP. In response to this concern I note and concur with the view of the experts, mindful of the drawings at Annexure D to the experts report, that the 4 level podium is appropriate in the circumstances fitting in with the adjacent building at 16-18 Bridge Street.
The building height to the rear of the site does not comply with the setback controls in control C.19 of Section 4.1.5 of the DCP, which show a 9m setback for the lower three building levels and a 15m setback for higher levels. The building has a 9m setback (approx.) for what might be described as 3⅓ levels (because of the 2m fall across the site, roughly ⅓ of the ground level to Bridge Street, presents above ground at the rear of the site). For the next two levels the setback is 12m (approx.). Council's concern is that the non-compliant setbacks result in the proposed development being visually dominating in bulk and scale and inconsistent with the desired future character of the area.
Council's argument is strongest in regard to Level 4 and to a lesser extent the open communal terrace above, where a setback of only 12m is proposed where the DCP control provides for 15m. In regard to visual bulk I concur with the view of Mr Dickson who argues that the visual bulk at the rear elevation would be inoffensive and that certainly the potential future 72 m high buildings on the north side of Bridge Street (consistent with the desired future character) would provide the dominant visual bulk when viewing from the south. I also note the agreed position of the planning experts that the southern building is two storeys below the LEP height limit "and therefore could conceivably provide seven stories at this interface with the lower three setback 9m and the upper four setback 15m" (Exhibit 3, p15). For me it is clear that, when compared to the current proposal (albeit with the non-complying 12m setback for Level 4 and the Level 5 terrace), there would be a greater visual impact on the residences to the south from a seven storey (southern) building element, even with an additional (and therefore compliant) 3m setback (ie totalling the required 15m setback).
At the hearing I raised concerns about potential overlooking to the south from both Level 4 and the communal terrace above. In evidence Mr Dickson agreed to review the matter during the overnight break, and on return to Court provided a design response (Exhibit E) including some visual screening arrangements. Mr Dickson gave evidence that this screening provided "a preferable detail" for these rear elevations. Mr Mead agreed that the arrangement would address visual privacy should this be a concern of the Court.
A further issue in regard to building massing is the proposed side setbacks. Control C.7 of section 4.1.5 of the DCP requires side setbacks above thee storeys to be a minimum of 6m. The side setbacks of the proposed development are 0-1.6m for all levels, contrary to DCP 2011. The experts agree that the proposed setbacks are appropriate given the width of the site and the form of the existing building to the west. Mr Mead brings two qualifications to this view. One qualification is that the building height (fronting Bridge Street) be brought into compliance. In regard to this qualification I note my previous conclusion that the building height at Bridge Street is reasonable. Mr Mead's second precondition is in regard to the separation between the northern and the southern building elements. I address this issue below. But for the sake of the consideration of side setbacks I do not see that issue as determinative. On this basis I conclude that the proposed side setbacks are satisfactory.
Overall I am satisfied in regard to the building massing for the reasons outlined above. In this regard it seems to me the proposal is consistent with the DCP's Epping Town Centre desired future character "protecting the amenity of occupants on adjoining properties and where relevant provid(ing) a sympathetic response to heritage items and conservation areas" (DCP s4.18).

[20]

Apartment amenity

Council's view is that too many of the proposed apartments are non-compliant with ADG standards for sunlight access and visual privacy. Mr Mead's evidence is that 12 of 33 apartments (ie those south facing) receive no direct sunlight to their private open spaces or living rooms in midwinter and the ADG design requirements at Part 4A are not met. His view is that (Exhibit 3): This is a poor outcome that results from the reduced separation at the centre of the site and the excessive height to the front building. The design solution is a symptom of site width and size. He also believes that many of the apartments have poor solar penetration into living rooms with effective depths of 10m, again contrary to ADG.
Mr Mead raises a number of concerns about privacy for the apartments. He notes the 6m separation between the northern and southern residential building components, and non-compliance with the ADG in that regard which required a 12m separation. He also raised concerns in regard to the 6m separation distance between the connecting walkway and bedroom windows, suggesting further non-compliance with the ADG, but also having regard to acoustic privacy. He believes that apartments 2.01, 2.03, 3.01, 3.03, will receive a reduced level of amenity as "bedroom 2" (for each apartment) relies on sliding doors onto a hallway with fixed privacy louvres for daylight. Mr Mead also suggested views out of the south facing apartments (as an amenity benefit) should have low weight as all the outlook points are heavily screened, with louvres and the like, which would restrict views.
In Mr Dickson's view the design optimises for the northern orientation, the greater building height to the north means 21 of the apartments (nearly 2/3) will have solar access for 6 hours in mid-winter. He believes the (12) southern facing will have very desirable views and outlook towards the Chatswood and CBD skyline which are likely to be sought after. He believes the proposal generally satisfies ADG requirements including through the use of various detailed privacy treatments (selected blank walling, highlight windows, privacy screens) and overall Mr Dickson saw the design as responding creatively to site issues in satisfying the relevant ADG objectives.
There was considerable argument in regard to the ADG's building separation controls. Council referred to Part 2F where 12m is suggested as the separation distance between habitable rooms for buildings up to four storeys. This control can be compared with the provisions at Part 3F of the ADG (design criteria to Objective 3F-1) which indicate a 6m separation between habitable rooms for buildings up to four storeys. On this point I generally agree with the applicant. Part 2F of the ADG is concerned with "(providing) tools to support the strategic planning process when preparing planning controls" (ADG, p27). It needs to consider separation distances between existing development and future proposals. On the other hand, Part 3F of the ADG includes distinctive consideration of "buildings on the same site" (see note to design criteria 1 of Objective 3F-1). The reason for the distinction in my view is that there can be full control of building siting and detailing, landscaping and design responses in regard to internal relationships for "buildings on the same site"; whereas across the boundary there is much more limited capacity. The ADG note (ibid) points to Figure 3F-2 reproduced below which indicates the possibility of 6m separation distances between habitable rooms and "blank" walls, which Mr Mead agreed included walls where privacy louvres were properly designed in. Figure 2 - Excerpt from Apartment Design Guide showing separation distances in different settings (Source Figure 3F.2 ADG - Exhibit 2)
In coming to my conclusions on this question of internal amenity wherein SEPP 65 and the ADG provide substantive policy frames. SEPP 65's key concern is to improve the design quality of residential apartment development. Its ambitions also include: contributing to sustainable development, better satisfying changing demand, and maximising amenity (see cl 2); issues born out in the Design Quality Principles (SEPP 65 Schedule 1). Ambitions of this kind are often competing with one another. In this instance, the achievement of compliance with relevant numerical standards (usually in regard to privacy) often relies on architectural detailing. Mr Mead calls this a "defensive" design approach, which in his view resulted in other amenity impacts (eg acoustic concerns about walkways and views to the south reduced due to visual screening). In his closing Mr Gough emphasised this and made the point that the proposal shouldn't have to compromise on amenity. He referred me to p65 of the ADG which includes Objective 3F-2 (again on visual privacy), which provides as follows: Site and building design elements increase privacy without compromising access to light and air and balance outlook and views from habitable rooms and private open space.
The objective suggests "no compromise" on some matters (on access to light and air) and a "balanced" approach to visual privacy and views. I accept Mr Dickson's evidence that there is good cross ventilation for the apartments. But I think it is also clear that compromises have been made in regard to daylight (and sunlight) access, especially with the various visual screening approaches adopted, and to an extent on acoustic privacy.
However I don't think Objective 3F-2 can be viewed without reference to its relations with the wider aims of SEPP 65 introduced above (which include along with amenity: housing affordability and variety to meet diverse and changing demand). What I see with the design is a reasonable approach to balancing SEPP 65's wider aims. Creative approaches have been used to provide visual privacy while providing reasonable amenity. These seem to me to be similar to the approaches recommended in the "design guidance" which follows Objective 3F-2 in the ADG. While I think the amenity of these (southern) units is reasonable, they do not match the sunny apartments to the north. However, and there are certainly limits to this point, it would follow that they may rent or sell for lower prices, which links to the affordability and diversity objectives of SEPP 65. Here I am mindful of the evidence of daylight analysis specialists Windtech (Exhibit C) which indicates that adequate natural light is achieved by all apartments at both June 21 (winter solstice) and March 21 (equinox), and the fact that no acoustic evidence was forthcoming to suggest, for example, non-compliance in regard to sleep disturbance criteria.

[23]

Concerns raised by objectors

I have considered the lay submissions. I note Mr Christie's concerns on behalf of the Epping Chamber of Commerce that more commercial floor space should be provided within the subject development. I agree with the view that it is desirable for there to be a good mix of jobs and housing in Epping as the intended growth occurs. However, the Court needs to assess the application that is before it; and I believe it unreasonably prescriptive in the face of the local and wider floor space demand dynamics to apportion a set area of commercial floor space for this development. I note the evidence provided jointly by the experts is that while there is capacity for LEP's to do so, in this case the relevant planning instruments do not impose any split of commercial/residential development for the site. I also note Mr Dickson's view that the proposed ground level retail/commercial floor space on the site brings better economic activity and employment generation potential than the older style commercial buildings currently occupying the site.
In regard to wider amenity questions, Mr Moffatt's concerns in regard to the substation at the site's Bridge Street frontage seem to have been addressed (there is no substation indicated there in the plans). His concerns regarding future traffic hazard and parking were likely in part addressed as Mr Moffatt's suggestion that parking levels were approximately 60 car spaces was no longer the case (parking for 31 vehicles indicated in statement of facts and contentions - Exhibit 1). In regard to the requested delay of a decision until the foreshadowed Council/RMS traffic study into Epping is released, it is generally necessary for the Court to hear the appeal on the evidence before it at the time a matter is listed.
I note Mr Christie's concerns about height and potential impact on the conservation area to the south, and the other design and amenity concerns raised in submissions during the exhibition period. As indicated earlier, I am of the view that the proposal adequately addresses these matters.

Kingsland Developments Australia Pty Ltd v City of Parramatta Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Cases Cited (7)