L & G Management Pty Ltd v Council of the City of Sydney

Statutory Framework

1. The site is within the Redfern-Waterloo Potential Precinct Map, identified at cl 4 of the State Environmental Planning Policy (Urban Renewal) 2010 (Urban Renewal SEPP).
2. Clause 3 of the Urban Renewal SEPP is in the following terms: 3 Aims of Policy The aims of this Policy are as follows: (a) to establish the process for assessing and identifying sites as urban renewal precincts, (b) to facilitate the orderly and economic development and redevelopment of sites in and around urban renewal precincts, (c) to facilitate delivery of the objectives of any applicable government State, regional or metropolitan strategies connected with the renewal of urban areas that are accessible by public transport.
3. Subclause 10(2) of the Urban Renewal SEPP provides that the consent authority, or the Court on appeal, must not grant consent unless it is satisfied that the proposed development is consistent with the objective of developing the potential precinct for the purposes of urban renewal.
4. In order to form an opinion of satisfaction, subcl 10(3) of the Urban Renewal SEPP requires that the Court take into account whether or not the proposed development is likely to restrict or prevent the following: (a) development of the potential precinct for higher density housing or commercial or mixed development, (b) the future amalgamation of sites for the purpose of any such development within the potential precinct, (c) access to, or development of, infrastructure, other facilities and public domain areas associated with existing and future public transport in the potential precinct.
5. The site is located within the B4 Mixed Use zone identified by the Sydney Local Environmental Plan 2012 (SLEP) in which commercial premises are permitted with consent.
6. The objectives of the B4 zone are in the following terms: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres.
7. The parties identify the following aims, at subcl 1.2(2) of the SLEP, to be of particular relevance to the contentions in respect of the proposed development: (c) to promote ecologically sustainable development, … (f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors, (g) to ensure that the pattern of land use and density in the City of Sydney reflects the existing and future capacity of the transport network and facilitates walking, cycling and the use of public transport, … (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, …
8. As the floor space ratio (FSR) on the site is a principal contention, the provisions of cl 4.4 of the SLEP apply in the following terms: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
9. The parties dispute how the FSR applies to the site. Relevantly, cl 4.5 of the SLEP provides: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows - (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to - (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be - (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area - (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). … (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. … (8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings. (9) Covenants to prevent "double dipping" When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot. …
10. Division 2 of the SLEP is titled 'Division 2 Additional floor space outside Central Sydney', in which cl 6.14 of the SLEP sets out the terms in respect of which the consent authority, or the Court on appeal, may consent to additional floor space of 0.5:1, according to subcl 6.14(4)(b).
11. Clause 6.14 of the SLEP relevantly provides: 6.14 Community infrastructure floor space at Green Square (1) The objectives of this clause are as follows - (a) to allow greater densities where Green Square community infrastructure is also provided, (b) to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. (2) The consent authority may consent to development that results in additional floor space in accordance with subclause (4) if the development includes Green Square community infrastructure. (3) In deciding whether to grant development consent, the consent authority - (a) must be satisfied that the development is consistent with the objectives of this clause, and (b) must be satisfied that the Green Square community infrastructure is reasonably necessary at Green Square, and (c) must take into account the nature of the Green Square community infrastructure and its value to the Green Square community. (4) Under subclause (2), a building on land in an Area specified in paragraph (a), (b), (c), (d), (e) or (f) is eligible for an amount of additional floor space determined by the consent authority but no more than that which may be achieved by applying the floor space ratio specified in the relevant paragraph to the building - (a) Area 5 - 0.25:1, (b) Area 6 - 0.5:1, (c) Area 7 - 0.75:1, (d) Area 8 - 1:1, (e) Area 9 - 1.5:1, (f) Area 10 - 2.2:1. (5) In this clause - Area means an Area shown on the Floor Space Ratio Map. Green Square community infrastructure means development at Green Square for the purposes of recreation areas, recreation facilities (indoor), recreation facilities (outdoor), public roads, drainage or flood mitigation works.
12. The provisions at cl 6.21 of the SLEP apply to development involving the erection of a new building or external alterations to an existing building, in the following terms: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
13. The parties agree that a finding in respect of design excellence flows from other contentions in this matter, with particular regard to the following matters at subcl 6.21(4): (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - … (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, … (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, … (iii) any heritage issues and streetscape constraints, … (v) the bulk, massing and modulation of buildings, … (xii) achieving appropriate interfaces at ground level between the building and the public domain, …

The floor space ratio is exceeded

1. According to the Floor Space Ratio Map at cl 4.4 of the SLEP, the permissible FSR for the site is 1.5:1.
2. A bonus FSR of 0.5:1 is available to sites in Area 6 if the development includes Green Square community infrastructure, according to subcl 6.14(4)(b) of the SLEP.
3. As a result, an FSR of 2:1 applies to the site, if Green Square community infrastructure is provided.
4. While it is commonly held that the FSR on the site at present, and as proposed, exceeds the maximum permissible FSR, the parties hold competing positions as to how the FSR is to be calculated.
5. In broad terms, the Respondent contends that the FSR is calculated by reference to the site in its current state, being a single lot, Lot 70. Additionally, as the Council has not completed a review of the public benefit offer (Exhibit G, Tab 11) comprising the dedication of land on Botany Road and a monetary offer, subcl 6.14(3) has not been satisfied and so additional floor space is not able to be relied upon.
6. In the alternative, the Applicant submits that as the proposed development is for both subdivision and additional floor space, it is the land in its subdivided state that must be the subject of the calculation of FSR.
7. Responsive to both positions, two written requests have been prepared in accordance with cl 4.6 of the SLEP seeking to justify the contravention of the FSR standard.

The Applicant's position

1. According to the Applicant, subdivision is an essential part of the application before the Court as it results in the creation of two development lots that, in turn, requires the calculation of the FSR resulting from the subdivision.
2. The FSR standard at cl 4.4 of the SLEP provides that the maximum FSR for a building on any land is not to exceed a certain ratio of gross floor area (GFA) when considered in respect of the site area.
3. As there is no reference to the erection of a building in cl 4.4 of the SLEP, the provision applies to existing building(s) on any land, and not just to a new building that might be proposed.
4. This suggests that it is the subdivision, and not the addition of floor space that triggers the breach of the allowable FSR.
5. According to the Applicant, this is supported by subcl 4.5(3)(b) of the SLEP which has the practical effect of requiring a calculation of site area for each of the 2 lots resulting from the subdivision, independent of the other.
6. This approach is consistent with that adopted by the Respondent in 2008 when an earlier application for subdivision was approved, but not acted upon.
7. The effect of subcl 4.5(8) is to require the inclusion of the existing floor space on the northern lot resulting from the subdivision.
8. The effect of subcl 4.5(6) is to confine the calculation of the FSR on the southern lot to the GFA on that lot, and to exclude development on the northern lot as no significant development is proposed to be carried out.
9. According to the Applicant, the proper sequence in which the contentions are to be considered is as follows: 1. First, the site is to be subdivided, which gives rise to a breach of the FSR standard as the existing 8-storey building already exceeds the allowable FSR for the northern lot on the site that results from the subdivision. A written request is required for the existing building on the northern lot, prepared in accordance with cl 4.6 of the SLEP. 2. Second, as the proposed development proposes additional floor space on the southern lot that results from the subdivision, and the public benefit offer includes Green Square community infrastructure, the Court should find that the floor space bonus at subcl 6.14(4) applies. 3. Third, the Court should then consider the cl 4.6 request only for the northern lot of the proposed subdivision as the FSR for the southern lot complies, once the FSR bonus is factored.

The Respondent's position

1. The Respondent submits that the existing development evident on the site is one building comprising, in effect, two stages over a common basement.
2. While the Respondent acknowledges that subdivision is proposed, the land the subject of the development application is the whole of Lot 70 and so the site area is properly considered to be that defined in subcl 4.5(3)(a) of the SLEP.
3. When the GFA of the proposed development is considered in respect of the area of Lot 70, the FSR is 2.65:1, which is 77% in excess of the FSR permitted under cl 4.4 of the SLEP, and 33% in excess of the FSR when the bonus is included in accordance with cl 6.14 of the SLEP.
4. The Applicant proposes subdivision in order to manipulate the FSR standard by subdividing the site which has the effect of separating the northern building on a separate lot so as to confine the exceedance of FSR to the northern lot.
5. The consequence of this is that the southern lot, when assessed in its own right against the FSR standard, and owing to the dedication of a 2.4m wide area of land fronting Botany Road, qualifies for the benefit of additional floor space.
6. However, while the Applicant maintains that the subdivision comes first, it also proposes to separate the land the subject of the dedication from the lots on which development is proposed. This has the effect of excluding the area of the lots to be dedicated, from the lots the subject of development, which it seeks to once again gain the benefit of by adding the area of the lots together as shown in the Summary Compliance table (Exhibit 3, Attachment 3).
7. However, a proper reading of the additional floor space provision within cl 6.14 of the SLEP is that the additional floor space applies to a building on land in an Area, being the Area defined at subcl 6.14(5) of the SLEP as an Area shown on the Floor Space Ratio map. This Area is the single Lot 70, and not the lots resulting from the subdivision.

The FSR standard applies to the land

1. The parties are agreed that authorities that may assist the Court in determining the proper method of applying the FSR in the circumstances of the case is scant.
2. In Matthew Lam v Inner West Council [2017] NSWLEC 1332 (Matthew Lam), the Applicant proposed to subdivide a site of 605m2 in area to create two new lots of around 302m2, with a dwelling erected on each new lot in the form of a semi-detached dwelling.
3. In what Mr Chamie describes as a 'sliding scale', the FSR applicable to a site over 400m2 in area was 0.5:1 while an FSR of 0.7:1 applied to the smaller site area of 302m2.
4. The Applicant sought to apply the greater FSR value on the subdivided lots, which the Commissioner, while not making findings on the point, regarded as a 'logical' application of the control given the proposed dwellings would not be permissible and therefore could not be erected on the current site unless it was first subdivided.
5. Similarly, in Marrickville Development No.3 Pty Ltd v Inner West Council [2019] NSWLEC 1132 (Marrickville No 3), the Commissioner accepted that the site area from which the FSR should be derived was the area described in subcl 4.5(3)(b) of the relevant Local Environmental Plan, being on two or more lots having at least one boundary with another lot on which the development is being carried out.
6. Unlike the circumstances evident in Matthew Lam or Marrickville No 3 which proposed new development in place of existing development, the subject site in this case is occupied by existing development that is, in large part, proposed to be retained. Furthermore, the existing development that is retained exceeds the allowable FSR for the site in its current form, being a single lot.
7. Clause 4.5(8) of the SLEP requires that the GFA of an existing building within the site is to be included in the calculation of the total floor space, whether or not the proposed development relates to all of the buildings.
8. However, in Mulpha Norwest Pty Limited v The Hills Shire Council (No 2) [2020] NSWLEC 74 (Mulpha) at [34], Pain J considered the effect of cl 4.5 to be essentially definitional in nature so that it "cannot operate independently to determine the land to which the clause applies, but must yield to the operative provision."
9. No issue arises from the essential distinction between this matter and Mulpha as the site does not fall partly on land to which different FSR apply.
10. Instead, I consider her Honour to be clear in finding in Mulpha, at [44] that the land to which the FSR applies is fixed and determined by the FSR Map, which is thus the controlling provision and the site area must yield to the controlling map.
11. Further in Mulpha, her Honour, at [50], entertains the particular circumstances of this case in stating: "Obviously where a particular site is entirely contained within land having the same FSR on the FSR Map, no complications arise in the calculation of the FSR. Ordinarily it might be expected that a site is either coincident or less than the area of the FSR Map. In those cases, cl 4.5 can be applied to the whole site without any difficulty. However, where a site extends beyond the boundaries of land shown in the FSR Map it does not mean that land is extended by a site divined by an applicant. This would be an entirely idiosyncratic outcome determined at the whim of an applicant and contrary to the underlying object of cl 4.5."
12. In Mulpha, the operative provisions were found in cll 4.4 and 7.12 of the relevant local environmental plan, where cl 7.12 contained an FSR incentive map. The comparative provisions in this case are at cll 4.4 and 6.14 of the SLEP, where cl 6.14 sets out the quantum of 'bonus' FSR.
13. Here, as in Mulpha, the Applicant relies on the definitional effect of cl 4.5 to contend that the FSR is dictated by the site of the development and not by the land to which the FSR applies.
14. It does so by asserting that the exceedance of the FSR standard arises from the subdivision of the land which, in turn, creates Lot 2, being the site of the development, to which the proposed development is confined.
15. Following the reasoning set out by Pain J, I conclude that the proper application of the FSR standard is on the land within the FSR Map, being Lot 70.
16. Accordingly, I accept the Respondent's submission that a proper assessment of the FSR standard in this case derives an FSR on Lot 70 of 2.65:1.

The dedication of land is proposed

1. The Applicant proposes to comply with the requirement of cl 6.14 of the SLEP by providing for community infrastructure in two ways: 1. Firstly, by dedicating land along the frontage of the site addressing Botany Road, and; 2. Secondly, in the form of a monetary contribution set out in the public benefit offer to the value of $64,485.
2. The Applicant submits that as the requirement for Green Square community infrastructure is only triggered by development proposing additional floor space, it is only the frontage to the southern portion of the subject site, being on a lot created by subdivision, that is required to be dedicated.
3. To this end, the Applicant has prepared two plans of subdivision contained at Attachment 2 of the planning joint expert report. 1. Draft plan of subdivision prepared by Jonathan Keen dated 24 July 2020 proposes the whole frontage of the site be the subject of the land dedication, being proposed Lot 3. 2. Draft plan of subdivision prepared by Jonathan Keen dated 14 October 2020 proposes the frontage be further subdivided to create Lots 3 and 4.
4. The dedication of land proposed by the Applicant is unacceptable to the Respondent as the area is not free of encroachments, contrary to the requirements set out in section 5.2.3 of the Sydney Development Control Plan 2012 (SDCP) in which the objectives are: "Objectives (a) Ensure a high level of amenity and an appropriate level of supporting community infrastructure is achieved in Green Square. (b) Establish the circumstances under which development to the maximum gross floor area can be achieved, as determined by the maximum floor space ratio applicable to a development site. (c) Identify the public works and community infrastructure to be provided before the land can be developed to the maximum gross floor area."
5. The provisions relevantly provide: "Provisions (1) Where infrastructure works are proposed to the satisfaction of the consent authority, consent may be granted for development up to the maximum gross floor area achievable under Clause 6.14 of Sydney LEP 2012, but only if the development contributes to the desired character of the locality in which it is located and has little or no impacts on the amenity of that locality. (2) The maximum gross floor area permitted under Clause 6.14 of Sydney LEP 2012 can only be achieved where a development provides public works and community infrastructure including: (a) works within the existing or proposed road reservations including: (i) streetscape, bike and pedestrian improvements such as widened footpaths and landscaped setbacks, local parks, pedestrian and bike paths, overpasses and underpasses, landscape works and lighting; … (f) land dedicated for any of the above works; … (4) Where proposed community infrastructure is not to the satisfaction of the consent authority: (a) development to the maximum gross floor area, as determined by the maximum floor space ratio under clause 6.14 of Sydney LEP 2012 will not be possible; and (b) development is to be consistent with the maximum gross floor area as determined by the maximum floor space ratio under clause 4.4 of Sydney LEP 2012."
6. Also relevant to the proposed dedication of land are the objectives and relevant provisions set out in Section 5.2.10 of the SDCP dealing with setbacks: "Objectives (a) Introduce landscaped front setbacks to enhance the setting and appearance of buildings. (b) Promote privacy and enhance the streetscape with private setbacks from the street edge. (c) Enhance the public domain through the provision of setbacks to increase pedestrian amenity and supplement the public open space. Provisions (1) Where land is dedicated for community infrastructure including footpath widening and landscaping under Section 5.2.3, it is to be provided in the locations identified on the Public domain setbacks map. (2) Where land is dedicated under Section 5.2.3, buildings are to be set back from the new street frontage property boundary by a minimum of 1.0m to provide a landscape setback, unless the frontage is a nominated active frontage on the Active frontages map. The land dedicated to Council shall be free of encroachments and structures and be clear to the sky. … (5) The street setback is to be landscaped and treated in a manner that contributes to the streetscape and the desired future character of the area. …"
7. The site is identified on the Public domain setbacks map. It is also identified on the Active frontages map. The effect of which is to nullify the requirement for a 1m setback otherwise stipulated by Provision (2).
8. There are existing building elements that encroach into the proposed land dedication at present, including an access ramp, stairs and masonry planter boxes. The majority of these encroachments are proposed to be demolished.
9. An electrical substation kiosk is also currently located in the area of the proposed land dedication. This is proposed for relocation.
10. The encroachments that are proposed to remain include:

• A portion of the external entry stair, chair lift and handrail to the north of the site
• A portion of a column, floor slab and associated wall elements at the ground floor colonnade of the existing northern building (ground floor colonnade).

1. The encroachments into the proposed land dedication caused by the ground floor colonnade appear in the diagram on the Draft plan of subdivision dated 14 October 2020.
2. The encroachment is in the form of a triangular portion of the existing building that protrudes in to the 2.4m wide area of land proposed to be dedicated. The extent of the encroachment is measured by survey as follows:

• 230mm encroachment in the basement walls,
• 345mm encroachment at the ground floor (including an encroachment of 165mm in the form of a column),
• 250mm encroachment at the first floor.

1. In the joint expert report, the Respondent's planning expert, Mr Ben Chamie, relies on Schedule 4 of the SDCP to identify acceptable encroachments over, or into, public roads. All of the elements identified as acceptable are required to have a minimum clearance above the road or footpath.
2. Schedule 4 was not initially in evidence, but was provided by the Respondent following the hearing.
3. The objective of Schedule 4 is in the following terms: "Objective (a) Projections beyond private property boundaries over or into the public road/ footpath are to contribute to the amenity and character of the street, not cause obstruction or a loss of safety for users of the street, and meet the relevant requirements of the Roads Act 1993."
4. Acceptable encroachments are set out in the provisions of Schedule 4, and may be summarised as follows: 1. Projections for decoration or sun shading devices if the projection extends not more than 450mm over the road/footpath alignment; is at least 3m above the footpath; is at least 800mm from the face of the kerb; and is constructed primarily of masonry, reinforced concrete, steel or other approved non-combustible material. 2. Balconies and bay windows may project beyond the alignment of a road/footpath if the projection extends not more than 450mm over the road/footpath alignment; comprises not more than 50% of any road frontage of the building at any level; is at least 3.2m above the footpath and at least 800mm from the face of the kerb; and does not result in adverse impacts on the amenity of an adjoining property. 3. Footings that do not project more than 450mm if the projection is at least 1.35m below footpath level; and 750mm if the projection is at least 3m below footpath level.
5. The Applicant's planning expert, Mr Anthony Betros, considers the encroachment minor, particularly as its removal would require the demolition of a structural element or of the whole building which is unfeasible, unwarranted and would result in the loss of significant embodied energy.
6. Mr Chamie also considers that the offer made by the Applicant to dedicate land was made at the eleventh hour, preventing the Respondent's Voluntary Planning Agreement Committee from having sufficient time to consider the offer prior to the commencement of proceedings.
7. Secondly, in respect of the monetary contribution proposed by the Applicant at [65(2)], Mr Chamie considers that the Applicant has incorrectly calculated the quantum of community infrastructure floor space on the site by relying on the additional floor space sought on the subdivided site.
8. Instead, the additional floor space is properly calculated on the basis of 0.5:1 additional FSR applied to the 'unsubdivided' site area of 1926m2, resulting in a GFA of 963m2 resulting in a sum of $192,667, and not $64,485 as proposed by the Applicant.

The dedication of land is considered

1. I must consider whether additional, or 'bonus', floor space is applicable to the site in accordance with cl 6.14 of the SLEP in order to first determine the FSR applicable to the site.
2. In deciding whether to grant development consent, subcl 6.14(3) of the SLEP requires the consent authority, or the Court exercising the functions and discretions of the Respondent on appeal to: 1. Firstly, be satisfied that the development is consistent with the objectives of the clause (subcl 6.14(3)(a)); and 2. Secondly, be satisfied that the Green Square community infrastructure is reasonably necessary at Green Square (subcl 6.14(3)(b)); and 3. Thirdly, take into account the nature of the Green Square community infrastructure and its value to the Green Square community (subcl 6.14(3)(c)).
3. It is commonly held by the parties that the Green Square community infrastructure is necessary at Green Square, which is consistent with reference to new public streets, pedestrian and bike links in the scope of infrastructure needed in Green Square, according to the Development Guidelines published by the Respondent titled 'Providing Community Infrastructure in Green Square', dated December 2012 ('Community Infrastructure Guidelines') (Exhibit 4, Tab 8). On this basis, I consider subcl 6.14(3)(b) to be satisfied.
4. The Applicant submits, and I accept, that by proposing the dedication of land for widened footpaths, the proposed development is consistent with the first objective of cl 6.14 of the SLEP.
5. Whether the greater density proposed on the site reflects the desired character of the locality and minimises amenity impacts, which is the second objective of the clause, is the subject of dispute between the parties.
6. In broad terms, Mr Chamie is of the view that the existing 2-storey built form evident on the site is not inconsistent with the desired character. Furthermore, for the proposed development to be consistent with the desired character, and so conform with the second objective of cl 6.14, it should:

• Conform to the FSR standard.
• Provide a public domain setback free of encroachments.
• Provide an active frontage to Botany Road with appropriate access.
• Exhibit design excellence.

1. As conformance with the FSR standard is not an express objective of cl 6.14 of the SLEP, and is the subject of a written request, I consider this at [111]-[130]. I also accept the Applicant's submission that, as shown by Commissioner O'Neill in Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 at [63], a proposal could meet or exceed numerical standards and controls and still not achieve a good design outcome.
2. Furthermore, as shown by Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [53], desired character is not only determined by reference to environmental planning instruments, but can also be informed by the form of development carried out in accordance with consent granted prior, such as the existing built form evident on the site in this case.
3. The nature of the public domain setback, provided for by the Green Square community infrastructure, is properly the subject of subcl 6.14(3)(c) of the SLEP, and is considered below, with reasons given at [107].
4. In respect of the provisions requiring an active frontage to Botany Road, Mr Chamie summarises his primary concerns in the joint expert report as follows:

• The retention of the existing building to the north foregoes the opportunity to redevelop the whole site in a manner consistent with the desired future character of the area.
• In particular, Mr Chamie does not consider ground floor office space fronting Botany Road to satisfy the requirement for an active frontage as glazing is obscure, preventing views to and from the street.
• The entry to street facing tenancies on the ground floor are elevated above the footpath level, and is only achieved through the main entry lobby and not independent shopfront entrances as is evident, for example, at 233 Botany Road.

1. The objectives at Section 3.2.3 of the SDCP in respect of Active frontages are as follows: "(a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to streets. (b) Provide fine grain tenancy frontages at ground level to street frontages. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street."
2. Pedestrian access to the proposed ground floor retail space is at the level of the footpath, and up a set of stairs accessed from Botany Road. Alternatively, universal access is achieved by using a chair lift to the south of the retail space, at the main building entry, with additional ramped access in the lobby.
3. While the experts agree that the frontage proposed to the new development satisfies the provisions at Section 3.2.3 of the SDCP, Mr Chamie notes that this form of access is less direct, and less equitable, than is desirable for a new building.
4. Mr Chamie provides examples of alternative arrangements that are preferable. For example, if a portion of the existing basement car park was removed, the retail space may be lowered, and the entry could be moved northwards to where the level difference between the retail and the footpath is least.
5. General provisions for ground floor active frontages set out in Table 3.1 (Exhibit 4, folio 47) may be summarised as follows:

• The minimum active frontage proportion should be 5m or 80% of each public domain frontage (whichever is the greater).
• Uses should include entries or display windows to shops and/or food and drink premises or other uses, customer service areas and activities which provide pedestrian interest and interaction.
• The minimum preferred 'grain' of tenancies should be 10-14 separate tenancy entries per 100m, and an average tenancy width of 10m.

1. As the site is located on the corner of Botany Road and James Street, the proposed development clearly addresses both frontages.
2. Unlike Botany Road, James Street is not identified on the Active frontages map. However, Mr Chamie considers the interface with James Street to be poorly resolved and heavily reliant on landscape planting that may not be sustainable in this location.
3. In particular, finished floor levels are more than 1m above the James Street footpath with large areas of blank wall, and a substation kiosk at street level that is substandard when compared to an enclosed substation that is integrated.
4. As the site is flood affected, Mr Betros considers it reasonable for the ground floor level to be elevated, whether or not the building on the northern portion of the site is retained.
5. For the reasons that follow, I am satisfied that the proposed development provides an active frontage to Botany Road: 1. Firstly, I accept that the decision to retain an existing building for which consent was granted under a pre-existing planning framework may fail to wholly conform to current requirements. That said, the ground floor of the built form that is to be retained comprises a fully glazed frontage to Botany Road that is suited to a range of uses, including a building entry, that wholly satisfy the provisions at Section 3.2.3(2)(a) of the SDCP. 2. Secondly, I note that the floor plan (Dwg A05, Exhibit A) and west elevation (Dwg A17, Exhibit A) of the proposed new built form on the site show a frontage to Botany Road that is wholly glazed and intended for uses, including two building entries, that are set out in Section 3.2.3(2)(a) of the SDCP. 3. Thirdly, as the site is flood affected, I consider it reasonable and prudent for the frontage to be elevated from the footpath, which is a common feature of buildings in the vicinity.
6. In respect of Mr Chamie's final objection at [90], the experts agree on p37 of the joint expert report, that whether the proposed development exhibits design excellence is determined by consideration of other contentions in this matter.
7. Considering all of the issues set out at [91]-[105], I am satisfied that the proposed development is consistent with the desired character of the locality. I am also satisfied, after consideration of the solar eye diagrams at Drawings A25 and A26 (Exhibit A), that the proposed development minimises the amenity impacts of overshadowing to neighbouring properties south of the site.
8. In respect of the third and final objective of cl 6.14 of the SLEP, I consider the dedication of land to be of value to the Green Square community on three grounds: 1. Firstly, unlike a proposal for new development on a vacant site, or development following demolition of an existing building, the encroachment arises from an existing building that is to be partly retained. 2. Secondly, the vast majority of building elements currently located within the land the subject of the proposed dedication are identified for demolition (Dwg A05, Exhibit A), including existing stairs and ramp access and planters, or for relocation, such as the existing electrical substation. The elements that are proposed to be retained include a structural column and slab which I accept imposes particular difficulties in relocating. Those new elements proposed to be constructed with encroachments on the land proposed to be dedicated include a portion of the chair lift, and a planter bed bearing a handrail for the new entry stairs. 3. Thirdly, on the basis of the survey summarised at [60], I consider the extent of the encroachments to be minor, and unlikely to pose an obstacle to the future use of the land proposed to be dedicated.

The cl 4.6 request is considered

1. The written request identifies the total FSR proposed as 2.64:1 which Mr Chamie contends, at par 24 of the joint expert report, incorrectly quantifies the extent of variation sought by the Applicant as being 0.64:1, and not 0.65:1 when expressed as FSR.
2. I accept there appears to be an error in the written request. However, I note the experts jointly developed the Summary Compliance Table at Attachment 3 of the joint report which, when read together, correctly identifies the FSR for the 'combined site' as 2.65:1.
3. The written request states that compliance with the FSR standard is unreasonable or unnecessary as, in the first instance, the site has the benefit of additional floor space under cl 6.14 of the SLEP when considered against its objectives and for reasons that are similar to those set out at [91]-[109].
4. Additionally, the Applicant considers the demolition of the existing built form on the northern portion of the site to be unreasonable on what are essentially environmental grounds.
5. In simple terms, these grounds are that an existing building, in good condition and recently refurbished, contains embodied energy that would be wasted if demolition is required.
6. However, the written request does not support the retention of the built form on the southern portion of the site on the grounds that it is inconsistent with the desired character due to what is said to be under-development of the permissible building height of 22m, and a ground floor height of 4.5m.
7. The written request also considers compliance with the FSR standard to be unreasonable or unnecessary as the proposed development achieves the objectives of the FSR standard, at [20], despite the non-compliance, on the grounds that follow: 1. In respect of the first objective, which is largely strategic in nature, it is argued that the FSR variation would be indiscernible prior to subdivision, and, after subdivision, would comply with the FSR applicable to the subdivided site and be visually compatible with the existing built form to the northern portion of the site. 2. With respect to the second objective to regulate density of development, built form and land use intensity, and control vehicular and pedestrian traffic, I accept the Applicant's submission that the objective is largely explanatory of the central purpose of the FSR standard and is achieved by the creation of the FSR standard itself as shown by Preston CJ at [49] in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61. That said, I also note the conclusions of the Traffic and Parking Assessment Report prepared by Varga Traffic Planning (Exhibit C, Tab 12) relied on by the written request to the effect that provision for parking complies with the SLEP and so the exceedance of FSR will not result in adverse traffic implications. 3. In respect of the third objective to provide for an intensity of development commensurate with the capacity of existing and planned infrastructure, the written request identifies the close proximity of the site to the existing Green Square railway station, and the proposed Metro station in addition to bus services and cycle lanes which are appropriate to the additional intensity resulting from the FSR exceedance. 4. The fourth objective deals with desired character and amenity impacts of a locality, and is virtually identical in its terms to that of the second objective at cl 6.14 of the SLEP, considered at [91]-[108]. In summary, the written request states:

• It is unreasonable to require the demolition of an existing, recently refurbished building that sits comfortably in the streetscape. This is particularly the case when viewed in context with the residential apartment development opposite at 222 Botany Road, albeit to which a greater height limit applies.
• The proposed built form on the site will comply with the FSR standard, following subdivision of the land, and will not be visually different in terms of bulk and scale to the existing built form.
• As the new built form is lower than the existing built form to the northern portion of the site, and provides a setback to the east of 12-14m, amenity impacts such as solar access, privacy and view loss are appropriately minimised.
• The exceedance of the FSR standard on the site is essentially temporary, pending the subdivision of the site after which the two built forms, when viewed together, will be visually compatible.

1. I note Mr Chamie's view, expressed in the joint expert report, is that the written request fails to address the undermining of a co-ordinated approach to development evident in the objectives of the FSR standard and, owing to the encroachments into the land proposed to be dedicated, does not provide for Green Square community infrastructure.
2. In addressing these concerns, I accept the Applicant's submission that the exceedance of the FSR standard does not undermine the SLEP, but instead gives cl 4.6 of the SLEP work to do, and for the reasons set out at [107], I do not consider the encroachments on the land proposed to be dedicated to disqualify it from being considered Green Square community infrastructure when Section 5.2.3(2)(a)(i) of the SDCP is considered.
3. I am satisfied that the written request has adequately addressed the grounds on which strict compliance with the FSR standard is unreasonable or unnecessary in accordance with cl 4.6(3)(a). In arriving at this state of satisfaction, I note that while the application of the FSR standard is to the Lot of land within the FSR Map, being Lot 70, the proposed new built form complies with the controls applicable to the lot proposed to result from the subdivision. In this way, I accept that the exceedance of the FSR standard on the site is essentially temporary.
4. Next the written request sets out what are considered to be sufficient environmental planning grounds to justify the contravention of the FSR standard, which may be summarised as follows: 1. The excess FSR on the site is the result of new built form that is consistent with the siting and scale of development anticipated by the controls. 2. Given the FSR of the new built form will comply following subdivision, there will be no discernible variation in respect of FSR when the two built forms are viewed together. 3. The exceedance of FSR does not result in adverse environmental impacts. 4. The particular arrangement of built form on this site, being in effect two buildings over a shared basement, is unlikely to form a precedent applicable on other sites where a variation to the FSR standard is proposed.
5. I am satisfied that the written request demonstrates sufficient environmental grounds to justify the contravention of the FSR standard for the reasons summarised above. In particular, I accept that no discernible variation in FSR will result when the two built forms are viewed together, which I regard, together with those matters set out at [91]-[105] as demonstration of some consistency with the existing and desired character of the locality.
6. Likewise, I am satisfied that the mix of compatible uses within close proximity to public transport and access to walking and cycling pathways is consistent with the objectives of the B4 zone, at [18]. Together with my satisfaction at [120], I find that the proposed development is in the public interest. In forming this opinion of satisfaction, I consider the circumstances of this case to be somewhat unique in that the primary bulk and scale is located to the north of the site. The abrupt change in bulk and scale between the built form to the north, and that on the southern portion of the site contributes to the appearance of under-development of the southern portion of the site that has frontages addressing the west, south and east and which contribute to a highly visible curtilage.

No power to impose condition to dedicate land

1. Notwithstanding my conclusion at [109] that the land proposed to be dedicated satisfies the test at subcl 6.14(3) of the SLEP, I must determine whether or not the Court has power to give effect to the dedication of land as proposed by the Applicant.
2. Ms Hammond, counsel for the Respondent, submits that s 7.8 of the EPA Act constrains the Court from imposing a condition that would have the effect of accepting a dedication on Council's behalf. Council does not support any conditions of consent that provide for the dedication of land whether by Voluntary Planning Agreement (VPA) or otherwise.
3. In the alternative, the Applicant submits that, as was the case in the development at 34-38 McEvoy Street, a VPA is not required for the land dedication under the terms of cl 6.14 of the SLEP. Instead, the public benefit offer can be accepted if it is consistent with the terms of the SDCP and the Community Infrastructure Guidelines.
4. In submissions provided to the Court following the close of the proceedings, the Respondent provided the Notice of Determination in respect of development at 34-38 McEvoy Street in which deferred commencement conditions were imposed that provided for a VPA in respect of the dedication, following the process of consideration by Council and public notification.
5. As the parties are agreed that a VPA is either not lawfully able, or is not required, to be imposed to give effect to the land dedication, the parties also agreed to strike out conditions to this effect that were originally proposed in draft conditions of consent.
6. I accept that the Court does not have power to impose a VPA on the Respondent. For whatever reason, the parties have not entered in to a VPA and s 7.8(1) of the EPA Act prevents an appeal being brought on those grounds.
7. I also find the Court is constrained from imposing a condition in respect of the land proposed to be dedicated as the public benefit offer contained behind Tab 11 (Exhibit G) clearly provides for the payment of monies to the Respondent in addition to the dedication of land.
8. As observed by Jagot J at [45] in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733 (citing Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41), s 94 of the EPA Act, as it was then (now s 7.11 of the EPA Act) was the exclusive source of power, absent a VPA, for a consent authority to impose conditions requiring the payment of money.
9. A condition imposed under s 7.11 is only permitted if it is of a kind allowed by, and determined in accordance with, a contributions plan, according to s 7.13 of the EPA Act.
10. Section 3 of the Community Infrastructure Guidelines states that: "The Community Infrastructure described within these guidelines is that which is provided over and above the requirements of the Section 94 Plan and in addition to any requirements for improvements that may arise from consideration of a development application by the consent authority under Section 79C of the Environmental Planning and Assessment Act 1979…"
11. As the Community Infrastructure Guidelines describe the community infrastructure proposed by the Applicant to be of a kind that is outside the scope of the Respondent's Contributions Plan, it follows that a condition in respect of the community infrastructure cannot be imposed under s 7.11 of the EPA Act.
12. As the parties have not entered into a VPA, and the community infrastructure proposed by the Applicant is not of a kind allowed by the Contributions plan, I accept the Court has no power to give effect to the public benefit offer.
13. The land proposed to be dedicated is identified by Roads and Maritime Services (as it was then known) as land vested by it as road along the Botany Road frontage (Exhibit 4, folio 145).
14. Absent the dedication of land, I cannot be satisfied that the proposed development enables the development of infrastructure, other facilities and public domain areas associated with existing and future public transport as I must be in order to grant consent, in accordance with subcl 10(2) of the Urban Renewal SEPP.

Orders

1. The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibits A and B. 2. The appeal is dismissed. 3. Development consent for Development Application No. D/2019/517 for the demolition of the southern two-storey portion of an existing part two-storey, part eight-storey building, remediation, construction of a five-storey building on the southern portion containing commercial and retail uses, minor alterations to the remaining eight-storey part of the building on the northern portion and subdivision to create two new lots and a parcel of land 2.4m wide along the site's Botany Road frontage to be dedicated to Council at 191-195 Botany Road, Waterloo, is refused. 4. All exhibits are returned, except for Exhibits C and 1. …………………… T Horton Commissioner of the Court

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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: 22 February 2021