Lakemba Hotel Pty Limited v Canterbury Bankstown Council

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement was lodged by Squillace Architects.
3. Part 4 of SEPP 65, at clause 28(2), requires the consent authority in determining an application for consent to carry out development to take into consideration: at (b) the design quality of the development when evaluated in accordance with the design quality principles; and at (c) the Apartment Design Guide (ADG). The relevant design principles are contained in Schedule 1 of the SEPP.
4. Relevant to these proceedings Council contends that the application is inconsistent with the following provisions of the Apartment Design Guide: 1. Design Criteria 1, of Objective 3D-1 which requires communal open space to have a minimum area equivalent to 25% of site area; 2. Design Criteria 1, of Objective 3F-1 which requires levels 4 and 5 to have a nine metre setback to the side boundary for habitable rooms; 3. Design Criteria 1, of Objective 4B-1 that states that light wells are not to be the primary air source for habitable rooms. 4. Design Criteria 1, of Objective 3D-1 that requires at least 60% of apartments to be naturally cross-ventilated.
5. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate had been submitted with the original development application, and the relevant requirements incorporated in the proposal. However, no updated BASIX certificate reflecting the amended plans has been provided to the Court. If the conclusion of the Court's assessment is that the application warrants approval, an updated BASIX certificate would be required prior to consent (cl 50(1B) of the Environmental Planning and Assessment Regulation 2000).
6. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)): (a) to provide for a range of development that promotes housing, employment and recreation opportunities for the existing and future residents of Canterbury, (b) to promote a variety of housing types to meet population demand, (c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community, (d) to create vibrant town centres by focusing employment and residential uses around existing centres and public transport nodes, …
7. Pursuant to LEP 2012 the site is zoned B2 Local Centre. The objectives of the B2 zone are as follows: To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. To encourage employment opportunities in accessible locations. To maximise public transport patronage and encourage walking and cycling. To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
8. The proposal is defined as shop top housing and is permissible, with consent, in the zone.
9. Pursuant to cl 4.3 Height of Buildings, the maximum height for buildings on the site is 18m. The proposal has a maximum height of RL 65.530, which results in the following exceedances: 1. 0.1-0.7m to the rear portion of Levels 4 and 5; 2. 1.3m to the top of the plant/ lift overrun, and 3. 0.8m to the roof of the top level of apartments.
10. The objectives of cl 4.3 Height of Buildings are: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities. Council contends that the application does not meet objectives (a) and (c) of the height control and the requested variation to height should not be upheld.
11. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
12. However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: (a) 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.
13. The following definition in the dictionary of LEP 2012 is relevant: building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..
14. Whether the Court accepts the applicant's clause 4.6 variation request, in relation to the variation of the maximum height of the development, is a jurisdictional precondition to consent.
15. The Canterbury Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are: 1. Clause 3.1.12 Car Parking. Relevantly this clause states: i. The number of car parking spaces and bicycle spaces are provide in the Table to Part 6.8. … iii. If the parking calculation results in a fraction of a parking space, the number of spaces required round it off to the nearest whole number. iv. Parking rates apply to the total floor area of all shops, and not to the floor area of individual shops. …. 1. Clause 6.8: Parking and vehicle access. Objectives: O1. Adequate car, bicycle and service vehicle facilities for the building users and visitors, depending on building type and proximity to public transport. O2. Casual parking on streets is available in centres to support local business. O3. Overflow parking and other traffic impacts are minimised in residential streets and neighbourhoods. O4. Servicing by larger vehicles occurs off‐street in such a way that reduces impacts on the pedestrian environment. O5. Vehicle facilities are designed and constructed in accordance with relevant standards and are functional and safe 1. Clause 6.8.3 Minimum parking and servicing requirements. Relevantly this clause states: i. Provide parking and other vehicle facilities as required in the following table, with each type of development. … iii. Parking is the combined requirement based on the rates of parking for each land use. iv. Where the CDCP parking rates do not cover a proposed development a parking assessment is required to determine the specific parking arrangements for the development. The assessment will be undertaken by a qualified traffic planner and analyse: • Parking needs of occupants, staff and visitors, • Bicycle parking, storage and secure facilities, • Service and delivery needs and facilities, • Needs of people with disabilities, • Surveys of similar establishments in comparable locations (or demonstrate requirements by other appropriate means). vi. Council will take into account the following issues, as are of relevance, in its assessment of any application and determination of adequate vehicle facilities in relation to the overall outcome: Type and scale of the development and its potential impacts on local traffic and parking conditions, Surveys of parking provision in comparable recent development, Existing parking facilities prior to further development, Site and building constraints, Heritage and urban design, Availability and proximity to public transport, ƒ Availability and amount of on‐street and public parking, ƒ Location of local services, employment, and retail and recreational facilities, Socio‐economic status (including household size, occupancy rates, car ownership rates) of anticipated patrons and occupants, ƒ Whether any unreasonable overflows of parking onto surrounding streets may result, ƒ Safety of vehicles, pedestrians and cyclists. … i. It may not be possible to provide off‐street car parking due to the constraints of existing sites and buildings. A contribution towards the provision of alternative off‐street car parking may be payable on development, redevelopment or change of use, in centres where it is not possible to comply with parking requirements specified in the CDCP. Refer to Canterbury Section 94 Contributions Plan for further information on centres where Council levies Section 94 contributions.
16. Given the operation of clause 3.1.12 (i), the Canterbury Development Contribution Plan 2013 may apply to the development application if the consent authority determines a shortfall exists. Clause 1.2, Table 1.1provdies a list of development subject to contributions or levies under the plan. At G it states: The subject site is within the relevant map.

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood, in accordance with the DCP 2012. The submissions received can be summarised as follows: 1. When the site was originally rezoned by the Council in 2012 to allow for additional height (to a maximum of 18m), no floor space standard was applied. Residents expressed concern that this amendment was not notified to all adjoining residents; 2. The development relies on a parking variation that should not be supported as parking within the locality is at a premium, and there is no capacity for the parking for this use to be accommodated off the development site; 3. Concern that the development is bulky and out of scale for the locality; 4. Whilst the building is not heritage listed it is an historic part of Lakemba and the demolition of the existing building is not supported; 5. That the development as proposed will create privacy impacts for their property through overlooking from the rear balconies; 6. If the proposal is approved the residents will experience a loss of light and outlook from their adjoining dwellings and yards; 7. A variation to the height limit should not be supported, and if additional height is sought the applicant it should be considered as a planning proposal to amend the planning instrument, not as a development application; 8. Impacts on residential amenity during construction, especially if the adjoining lot (currently used for parking) is utilised for access and deliveries; 9. The applicants parking and traffic study projects only a small increase in patronage occurring from the redevelopment. Residents are concerned that this is an underestimate and that parking provided will be insufficient. As a result, traffic and parking impacts will arise from the proposal. These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

1. The Court heard expert planning evidence from Mr Adam Coburn, for the applicant, and Mr Daniel McNamara for the Council. The experts participated in a joint conferencing process prior to the hearing. The conference sought to address the issues in contention. The experts prepared a joint report that was tendered as Exhibit 5.
2. The Court heard expert traffic evidence from Mr Robert Varga, for the applicant, and Mr Brett Maynard for the Council. The experts participated in a joint conferencing process prior to the hearing. The conference sought to address the issues in contention. The experts prepared a joint report that was tendered as Exhibit 6.

Is the request for additional height is well founded and worthy of support?

1. It is clear from a reading of cl. 4.6 in LEP 2012 that the onus is on the applicant, in seeking flexibility to the height standard, to demonstrate that the breaches of the development standard are justified.
2. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)); 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); 4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard; and within the request find that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). I have applied these tests to the current application in the following.

Consistency with the zone objectives:

1. Mr McNamara contends that the application does not meet the objective of the B2 zone to: facilitate and support investment, economic growth and development for active, diverse and well-designed centres. He argues that a key element in the Council's adoption of the LEP was a desire to limit development within the Lakemba centre to 18m, and in effect five storeys. In support of this reasoning, he relies in part on a report to the Council meeting of 24 November 2011. This report related to the finalisation of the comprehensive LEP. In particular he relies on a table within this report that details the proposed 18m height limit as being equivalent to 5 storeys (Exhibit 5).
2. In considering the question of consistency in relation to the zone objectives, I have utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] as follows: the guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that is compatible.
3. I am not satisfied that it can be reasonable sustained that a proposal for redevelopment of the site is antipathetic, or in conflict, with the objective of the zone [refer par. 17]. The evidence argued by Mr McNamara is more relevantly considered in the assessment of the application against the objectives of the height control, and in the subsequent merit assessment which is detailed in the following.
4. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

Consistency with the objectives of the standard in question:

1. The objectives of cl 4.3: Building Height are: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities.
2. Council contends that the application does not meet objectives (a) and (c) of the height control and a variation is therefore not warranted.
3. The applicants variation request (Exhibit B), prepared by Mr Coburn, addresses the relevant objectives as follows: a) to establish and maintain the desirable attributes and character of an area. The locality is currently undergoing a transition with a number of one and two storey shop top housing developments being replaced with shop top housing developments up to 6 storeys in height. The scale and height of the proposal is generally consistent with other developments that have been approved in the locality. Examples of new shop top housing developments along Haldon Street are detailed below: 142-144 Haldon Street: D353/2011 approved a 6 storey shop top housing development with ground floor retail and commercial uses and 11 residential units above. 101-103 Haldon Street: DA584/2013 approved a 5 storey shop top housing development with 14 residential units including basement parking on 11 September 2014. 196-198 Haldon Street: DA584/2013 approved a 5 storey shop top housing development with ground floor commercial and retail uses, 25 residential units and basement parking on 12 June 2014. 180 Haldon Street: existing 4 storey shop top housing development with ground floor retail and residential above. The proposal is consistent with the desired future character of the area given it is similar to a number of surrounding recent developments. b) to minimise overshadowing and ensure there is a desired level of solar access and public open space. The proposal is accompanied by overshadow diagrams, prepared by Squillace. The diagrams illustrate that the residential properties to the west will retain solar access from 12pm onwards. The additional overshadowing will not impact upon the southern properties until 12pm onwards while it is noted that the shadows will fall onto the roof areas of these properties. It is noted that the non-complying development will not create significant additional overshadowing. c) to support building design that contributes positively to the streetscape and visual amenity of an area. The proposal will contribute positively to the streetscape of Haldon Street given it defines the street edge while the upper levels are set back to reduce the bulk or scale to the public realm. The proposal has a highly articulated facade and incorporates planter boxes to reduce its appearance. The proposal will be consistent with the 6 storey development to 142-144 Haldon Street while it is noted that 152 Haldon Street is currently underdeveloped and earmarked for an increase in density. The proposal creates a 45 degree height plane to the rear which reduces it's the bulk and scale to Davidson Lane. d) to reinforce important road frontages in specific localities. The built form of the development will address Haldon Street while the upper three levels are setback which reduces the built and scale of the development.
4. In the alternative Mr McNamara argues that the development does not meet either objective (a) or (c) of the height control. It is his view that, for the development to meet the objective and contribute positively to the streetscape, it should be of a five storey form. It is his conclusion that the development does not satisfy the requirement to establish and maintain the desirable attributes and character of the area.
5. In reaching this conclusion he relies on: his analysis of the existing streetscape; the inferred intent of the Council in adopting the height control [refer par. 32]; the definition of building height in LEP 2012; and an application of the minimum floor to ceiling heights espoused by the ADG, as detailed in the following: The subject site is within the B2 Local Centre zone, and given allowances for minimum floor to ceiling heights for commercial and residential components of a mixed use building (per ADG requirements), and necessity for plant and lift overruns upon a building (as building height is measured from existing ground level to the highest point of the building, including plant and lift overruns), the intent of the 18m building height to translate to a 5 storey building form is clear. The ADG suggests that residential floor to floor heights of 3.1 m would be suitable to accommodate the design criteria at Objective 4C-1, which requires a minimum 2.7m floor to ceiling height to achieve sufficient natural ventilation and daylight access. A minimum 3.3m floor to ceiling is required for the ground floor level. When allowing for a suitable transfer slab and allowing also a 1-2 metre zone for lift overrun and plant, it is clear that an 18m height limit translates to a desirous 5 storey built form. The proposed 6 storey building is inconsistent with the desired future character of the locality (Exhibit 5).
6. In his assessment Mr McNamara also gives weight to the Lakemba Precinct: Land Use and Infrastructure Analysis report, produced by the NSW Department of Planning and Environment (Exhibit 8), to assess the compatibility of the proposal with the likely and desired future character of the locality. His consideration of this report in relation to the proposed development is as follows: The analysis identifies the centre generally has a traditional, fine grain, built form with 1-2 storey buildings at the street edge. Although buildings within Haldon Street are of varied architectural styling, it is asserted that a consistent form is created by building height and street width proportions. Together with its low vehicular speed and narrow carriageway Haldon Street is recognised to provide a comfortable and attractive public domain for residents. The analysis recommends that the built form of the Lakemba town centre should retain the character of the low scale of buildings along Haldon Street, with apartments up to 5 storeys above, that are setback behind the building facades to maintain sunlight to the streets. The proposed 6 storey building is inconsistent with the desired future character of Haldon Street presented in the Lakemba Precinct: Land Use and Infrastructure Analysis (Exhibit 5).
7. It is Mr Staunton's submission that the planning experts are agreed that within the applicable planning controls there is no five storey control that applies to the site. He argues that within the adopted planning controls Council does not seek a uniform five storey built form, and that given the topography of Haldon Street a stepped street wall is inevitable. Further he argues that the objective of cl. 4.6 is to provide an appropriate degree of flexibility to achieve better outcomes for and from development, which on Mr Coburn's evidence are achieved by the proposal.
8. Mr Seymour argues that the definition of building height within LEP 2012 encourages a building envelope that is less than the maximum, and incorporates roof elements, lift overruns and the like. It is his submission that therefore the strategic intent of the Council was for the entirety of the building to be contained within this height plane.

Findings

1. Based on the evidence before the Court I am not satisfied that the Council, in adopting the planning controls relevant to the site, intended a 5 storey control to apply.
2. I have considered the Lakemba Precinct Study referred to by Mr McNamara, but given the document is not a statutory consideration, and is likely to be subject to change in its final form, I have not given this document significant weight in my deliberations .
3. I accept the evidence of Mr Coburn that the locality is undergoing transition and that the height and scale of the development will be consistent with the relevant approvals in proximity to the site, and not be discordant with the existing character.
4. For the preceding reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development satisfies objective (a) and (c) of the height standard. In forming this conclusion I note that a consideration of consistency with the objectives of the standard, and a determination that noncompliance with the standard would be in the public interest, is different to the consideration of achievement of the objectives of the standard under cl 4.6(3)(a). In the second instance, the applicant is required to demonstrate the objectives are achieved, despite noncompliance (see Moskovich v Waverley Council [2016] NSWLEC 1015 [54]).

• Is it established that compliance is unreasonable or unnecessary?

1. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually bee abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
2. In this appeal, the applicant seeks to utilise Wehbe test 1, namely that the objectives are achieved notwithstanding the noncompliance with the height control.
3. The applicants clause 4.6 variation request, prepared by Mr Coburn, provides the following reasoning in support of the height variation: • The height non compliances are considered to be minor and vary by 0.5 to 7.2% from the height control; • The variation with indicative plant/condenser room and lift overrun is setback from the front, side and rear boundaries and therefore is not highly visible from the public realm; • The variation associated with the rear portion of the top level can be partially attributed to the step in the existing natural ground level which essentially results in a stepped 18 m height building line; • The development maintains an opening to the central portion of the site with a setback from both side boundaries which maintains acoustic and visual privacy and sunlight access to the adjoining northern property. This aligns with the light well of this neighbor, which is built to each side boundary, with the exception of a small recessed light well; • The proposed central courtyard will also respond to the future development potential of the adjoining sites to the immediate south (154 and 156 Haldon Street) and will not unduly hinder the reasonable redevelopment of these sites; • A fully compliant DCP building envelope would permit a development built to the side boundary for the full height of the building. Therefore the inclusion of the central courtyard and side setbacks provides significant amenity benefits for future residents with improved solar access, ventilation and outlook. The amenity benefits to future residents posed by the development are superior to that which would be achieved under a complying DCP envelope, whilst also positively responding to the adjoining properties to the south and north; • The variation associated with the rear portions Levels 4 and 5 only accounts for a small portion while the remainder of these levels are generally below the 18m height limit. Furthermore, it is noted that Levels 4 and 5 are set in from the northern side boundary by 6m; • The height variations will not be highly visible from Haldon Street given they are setback 5m behind the street wall height; • The height of the development will be stepped from the rear boundary which is consistent with the surrounding properties, in particularly 142-144 Haldon Street to the north. Furthermore, the proposal incorporates planter boxes to the rear and northern side elevations edge of Level 5 which softens the built form; • Strict compliance with the height controls would be unreasonable and unnecessary; • The proposal will not significantly impact upon the amenity of the adjoining neighbours with regard to privacy or solar access;
4. During the onsite view a resident adjoining the development to the West raised concerns that the height and proximity of the development will affect their solar amenity and outlook. It is the agreed evidence of the planners, with reference to the overshadowing plans provided, that the proposed development will result in only a marginal increase in overshadowing over what the property currently experiences from the newly constructed development adjoining.
5. Mr McNamara's analysis is detailed in the preceding paragraphs [39-41]. It is his conclusion that the proposed height breach will be discernible in Haldon Street, and that the bulk and scale of the building is not consistent with the adjoining development or the desired future character.
6. It is the submission of Mr Seymour that the applicant's variation request does not establish why compliance is unreasonable or unnecessary. He argues that the applicant has failed to establish the specific circumstances that make compliance with the height control unreasonable or unnecessary.

Findings:

1. The character of the area will continue to be informed by the existing planning controls, and materially by the provisions of the LEP that designate Council's desired built form.
2. The relevant test in this part of the consideration of cl 4.6 is to determine that the objectives of the height control are achieved notwithstanding the noncompliance. The decision in Wehbe v Pittwater Council establishes that in order to establish that the application of a development standard is unreasonable or unnecessary in the circumstances of the case it is sufficient to show that the development achieves the objectives of the development standard. This approach was reiterated in the decision Randwick City Council v Micaul Holdings Pty Ltd at [39] which requires that the Commissioner be satisfied that: the applicant's written request has adequately addressed the matter in subclause (3)(a) that compliance with each development standard is unreasonable or unnecessary.
3. I accept the evidence of the planners that the variation sought does not result in unreasonable overshadowing impacts to adjoining properties.
4. I accept the evidence of Mr Coburn that the following are the relevant specific circumstances:

• The variation associated with the rear portion of the top level can be partially attributed to the step in the existing natural ground level which essentially results in a stepped 18 m height building line;
• The height of the development will be stepped from the rear boundary which is consistent with the surrounding properties, in particularly 142-144 Haldon Street to the north;
• The proposal will not significantly impact upon the amenity of the adjoining neighbours with regard to privacy or solar access.

1. For the reasons detailed in the preceding [par. 47], and following consideration of the visibility of the exceedance from pedestrian level in Haldon Street and Davidson Lane, I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP.

• Are there sufficient environmental planning grounds to justify the variation?

1. The applicant argues that the floor plate proposed by the development provides a superior outcome for the development by providing a void/inset in the floor plan, at a setback of 6m from the northern property boundary, to increase amenity (daylight, privacy, ventilation and outlook) to the future residents.
2. In summary the variation request prepared by Mr Coburn argues that the following environmental planning grounds establish the justification for the variation to the control: The development maintains an opening to the central portion of the site with a setback from both side boundaries which maintains acoustic and visual privacy and sunlight access to the adjoining northern property. This aligns with the light well of this neighbour, which is built to each side boundary, with the exception of a small recessed light wells; The proposed central courtyard will also respond to the future development potential of the adjoining sites to the immediate south (154 and 156 Haldon Street) and will not unduly hinder the reasonable redevelopment of these sites; A fully compliant building envelope would permit a development built to the side boundary for the full height of the building. Therefore the inclusion of the central courtyard and side setbacks provides significant amenity benefits for future residents with improved solar access, ventilation and outlook. The amenity benefits to future residents posed by the development are superior to that which would be achieved under a complying DCP envelope, whilst also positively responding to the adjoining properties to the south and north. (Exhibit 5)
3. In the alternative Mr McNamara does not accept that the asserted any benefits to these units outweigh the dis-benefits. In his view the dis-benefits are firstly to the desired future character and, secondly to what he concludes is the poor amenity of the proposed units. His reasoning is as follows: the assertion that the insert area would provide significant amenity benefits, far greater than a compliant building envelope, is not accepted. The building envelope created by the development controls does not have to be filled. There is no maximum floor space ratio applicable to the development of the site. The building height and setbacks therefore create a 'maximum' building envelope. The building's designer is required to produce a design that satisfactorily addresses the requirements of Council's development controls, State Environmental Planning Policy No. 65 and the Apartment Design Guide, within the prescribed maximum building envelope (Exhibit 5).
4. Relevantly the planning experts undertook an assessment of the development against the provisions of SEPP 65. Relevant to the consideration of the environmental planning grounds, in contention between the parties is the development compliance with the following sections of the ADG: 1. Design guidance at Objective 4B - 1 of the ADG , which states that light wells are not to be the primary air source for habitable rooms; and 2. Design criteria 1 of Objective 4B - 3 of the ADG, which requires at least 60% of apartments to be naturally cross ventilated;
5. It is the evidence of Mr McNamara that the architectural plans of the development demonstrate that it is reliant on light wells as a primary air source for a number of habitable rooms within units 103, 106 and 203 (Exhibit 5).
6. The planners also agree that, contrary to the architect's plans, Unit 102 and Unit 202 do not achieve natural cross ventilation.
7. It is Mr Coburn's evidence that 17 of the 28 units achieve natural ventilation, there for achieving the ADG requirement of 60% of apartments. He accepts that units 103, 106, 203, 206, 302, 304, 402, 404, do not meet the strict definition of naturally cross-ventilated apartments in the ADG. However it is his evidence that these units meet the intent of providing opportunities for cross ventilation, relying on factors such as pressure differentials, to the inclusion of the southern inset (Exhibit 5).
8. Mr McNamara agrees that the proposal does not achieve the ADG benchmark of 60% of apartments being naturally cross ventilated.
9. It is the submission of Mr Seymour that the applicants asserted environmental planning grounds should be rejected by the Court. He argues that in fact it is the insert in the building that creates the amenity impacts for the residents by utilising light wells, and that the development fails to meet the requirements for cross ventilation under the ADG.
10. It is Mr Staunton's submission that the objectives detailed at [par. 6] are guidance and that the light well is sufficient in the circumstances where the development is shop top housing on a deep site.

Findings:

1. In determining this matter, I accept the submission of Mr Seymour that the environmental planning grounds put forward by the applicant as justification for the variation to the height control should not be upheld. I find that the development provides an outcome that both experts agree fails to achieve the ADG benchmark for 60% of apartments achieving natural cross ventilation. The architectural plans also demonstrate that seven apartments will fail to achieve two hours sunlight in mid-winter (ADG requirement 4A).
2. Following consideration of the evidence, I concur with the conclusions of Mr McNamara that the development does not provide improved amenity to the future residents than that which would arise from a scheme that was compliant. I am not satisfied, based on the evidence, that the argument that the alternative design proposed achieves an improved level of internal amenity for the new apartments, in particular in relation to cross ventilation, that is sufficient to justify the variation (clause 4.6(3)(b) of the LEP). Clause 4.6 at 1(b) has the objective of providing flexibility to achieve better outcomes. In this matter I conclude that the application does not demonstrate that it provides a better outcome than that envisaged by the relevant planning controls, and thus I am not satisfied that the development satisfies cl 4.6(3)(b).
3. I accept the evidence of Mr McNamara that the architectural design of the development is reliant on light wells as a primary air source for a number of habitable rooms within units 103, 106 and 203 (Exhibit 5). In combination with the other amenity outcomes outlined in the preceding, I find that this is not level of amenity are not sufficient environmental planning grounds to justify the variation requested.
4. This approach is consistent with the Courts decision in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90. This decision argues that the requirement in cl4.6(3) to justify that there are sufficient environmental planning grounds for the variation, requires identification of grounds particular to the circumstances of the proposed development - as opposed merely to grounds that would apply to any similar development on the site or in the vicinity.
5. Finally, as required by Cl4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or regional planning that would warrant refusal of the variation request.
6. Clause 4.6 is a precondition that must be satisfied before consent can be granted. The objectives of the clause make it clear that the intent of provision is to provide appropriate flexibility, in particular circumstances, to achieve better outcomes for and from development. For the above reasons, I am not satisfied under cl 4.6(4) that it is appropriate to provide that flexibility in this case and consequently there is no power to grant consent to the development application, which does not comply with the height control in cl 4.3 of the LEP, and the application must fail.

Does the residential component of the development achieve an appropriate standard of design quality?

1. Notwithstanding that the precondition is not met, on the basis of my findings at [69-71] I find that the development does not satisfy Principle 6 of SEPP 65, namely to provide good internal amenity through access to sunlight, natural ventilation, and outlook. I find that the application warrants refusal on these grounds pursuant to s79C(1) (a).

Orders:

1. The orders of the Court are: 1. The objection pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 is not sustained; 2. The appeal is dismissed; 3. Development application DA 241/2016 for demolition of existing structures on site and construction of a mixed-use development comprising 28 residential units, fit out and use of the ground floor for commercial premises (comprising a pub and bottle shop) and basement car parking at 146-148 Haldon Street Lakemba is refused. 4. The exhibits are returned with the exception of exhibits 1, A and B. ……………. D M Dickson Commissioner of the Court 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: 14 July 2017