Landmark Group Australia Pty Limited v Holroyd City Council

The relevant planning controls

1. The site is within Zone R4 High Density Residential under Holroyd Local Environmental Plan 2013 (LEP 2013). Residential flat buildings are permitted with consent in the R4 zone. Clause 2.3(2) of LEP 2013 requires the consent authority to have regard to the objectives for development in a zone when determining a development application.
2. The objectives of the R4 zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. No contentions were raised by the council in relation to cl 2.3(2).
4. Part 4 of LEP 2013 contains principal development standards with cl 4.3 addressing Height of buildings and cl 4.4 addressing Floor space ratio (FSR). The building height map identifies two different height standards for the site, 26m across the western portion and 29m to the east of the proposed extension of Dressler Court. The buildings exceed the height development standard in cl 4.3 however the variation is accompanied by a written request under cl 4.6 that concludes that the variation is well founded. This was a conclusion accepted by the council and after a review of the written request; I also agree that it is well founded.
5. The FSR development standard also varies across the site with a maximum of 2.8:1 applying along the railway line and Neil Street frontages and 3.0:1 in the north western portion of the site. The proposed buildings comply with the relevant FSR standards.
6. Nos. 1-7 Neil Street is listed as an archaeological site in Part 3 Archaeological sites of LEP 2013. The provisions of cl 5.10(7) apply and require the consent authority to notify the Heritage Council of its intention to grant consent and take into consideration any response received from the Heritage Council within 28 days after the notice is sent. No action in relation to that provision had been taken at the time of the hearing although a direction was made by the Court to notify the Heritage Council in the event that the Court chose to grant development consent. The council accepted that if there were no other reasons to refuse the applications then any requirements of the Heritage Council could be addressed through a deferred commencement condition of consent.
7. Holroyd Development Control Plan 2013 (DCP 2013) applies to the site and includes General Controls in Part A, Residential Controls in Part B and specific Merrylands Centre Controls in Part M.
8. Relevant Part B controls include Privacy (cl 1.4), Private open space (cl 1.5) Sunlight access (cl 1.8),Setbacks and Separation (cl 6.3) and Dwelling Layout and Mix (cl 6.10).
9. Part M provides more detailed planning for the site. Figure 2 provides details of new roads, new accessways, proposed laneways, existing laneways, vehicular entries and loading bays, prohibited vehicle entry points and road widening. Other relevant requirements are Indicative Street Sections (cl 3.4 and relevantly Section A-A, p520). Building and Ceiling Height (cl 4.2), Street setbacks road widening (cl 4.3), Building Depth and length, Setbacks and Separation (cl 4.4) and Landscaping and Open Space (cl 4.7).
10. Clause 5 provides specific requirements for the Neil Street Precinct where the site falls within Block 5 (Buildings 2, 5 and 6) and Block 6 (Building 1).
11. The development is integrated development pursuant to s 91 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Department of Primary Industries, Office of Water has issued General Terms of Approval (GTA) under the Water Management Act 2000.
12. State Environmental Planning Policy (Infrastructure) 2006 (SEPP Infrastructure) also applies to the application due to the site having frontage to Neil Street, a classified road and being adjacent to a rail corridor. The RMS has granted concurrence for access to and from Neil Street on a temporary basis although the council objects to the temporary access.
13. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)). SEPP 65 and the RFDC apply even though the amended version of SEPP 65 and the Apartment Design Guide have replaced SEPP 65 and the RFDC at the time of the hearing because of the transitional provisions in cl 31 of the amended SEPP 65.

Building 1 - Appeal No 10616 of 2015

1. Building 1 proposes the construction of a 9 storey residential apartment building containing 137 residential units over 3 levels of basement car parking and associated stormwater and landscape works.
2. The applicant provided additional information and the council accepted that some contentions could be addressed through conditions of consent. The council maintains that the following contentions remain in issue and warrant the refusal of the application: 1. inadequate building setbacks, 2. inadequate building separation, 3. inadequate balcony space, and 4. inadequate solar access.
3. Expert evidence was provided for the council by Mr Geoff Baker, an architect and urban designer and Mr Eltin Miletic, a town planner. Expert evidence was provided for the applicant by Mr Russell Olson, an architect and urban designer, Mr David Hoy, a town planner and Mr Steve King, an architect with particular expertise in solar access.

Building setbacks

1. The relevant requirements are a 2.5m building setback to proposed new road (DCP 2013, Part M, Figure 6, p538) and balconies are not to extend beyond the required setback (DCP 2013, Part C, Control C22, p159).
2. Building 1 provides balconies that encroach 1.12m into the 2.5m setback for each of the units that face the proposed new road. Each level has 7 balconies that encroach into the setback. Mr Miletic states that the breach is not minor given that the balconies occupy around 50% of the building façade. A 2.5m setback is minimal and the encroachment adds to the bulk and scale of the 9 storey building. Mr Baker states that the 2.5m setback is absolutely necessary for a 9 storey building to create an acceptable street environment.
3. Mr Olson describes the breach of the 2.5m building line as a minor projection into a wide space. The wide space referred to by Mr Olson includes the proposed new road corridor. Mr Hoy states that the intent of the control is focussed on maintaining solar access and a fully compliant building would still have the same solar access as the proposed building.

Building separation

1. The relevant requirements are a 6-12m separation up to 4 storey buildings, 9-18m separation for 5-8 storey buildings and 9 storeys and above, a 24m separation depending on use of rooms/areas in the units (RFDC, p28). DCP 2013 has the same requirements (DCP 2013, Part 4.5, Control C5, p542) The maximum permissible building plan depth is 18m (DCP 2013, Part 4.4, Control C2, p541)
2. Building 1 has a general setback to its western boundary of 6m although there are some minor encroachments into this setback for balconies and rooms without west facing windows of around 600mm. The shape of Building 1 also differs from the layout shown in Pt 5.6 of Part M in that it is still U-shaped but the area inside the U-shape contains additional development with a consequent reduction in separation between different parts of the building and an increase in building depth.
3. Mr Miletic states that DCP 2013 requires a building depth of 18m. The western wing of the building turns in on itself (compared to Pt 5.6 of Part M) and is greater than 18m. Mr Hoy sates that the building form is entirely consistent with Pt 5.6 of Part M. As this contention was raised in the context of inadequate communal space; this has now been satisfactorily addressed by the provision of roof top communal space has been accepted by the council. Any concerns over visual privacy are addressed through screens or off setting widows or balconies.
4. In relation to the separation between Building 1 and the approved but not constructed building to the west, Mr Miletic states that the approved building to the west has a variable setback of 4.5m and 13m, which provides only part of the building separation under the RFDC. The reduced building separation of Building 1 results in only 65% daylight access for Building 1. A greater separation would result in greater solar access to some west facing units. Mr Baker states that the approved building to the west and Building 1 have habitable rooms and balconies facing each other. The RFDC specifies a 24m separation (12m setback for each site) although Mr Baker accepts that a 18m separation could be applied. The separation distances are 9.9m and 10.5m. Mr Baker notes that the RFDC indicates that appropriate separation between buildings is to achieve firstly, good urban form so that buildings read separately and second, to ensure adequate amenity. In his opinion, these objectives are not satisfied. He rejects the use of privacy screens to windows and balconies where inadequate separation is provided as these measures compromise internal amenity.
5. Mr Olson states that the RFDC principle is that buildings are to equally share the separation distance across boundaries. He notes this building was approved in 2013 and did not comply with the RFDC even though it applied at the time of the approval. This building does not provide a half share of the 18m separation required under the RFDC Mr Olson maintains the setbacks to the west are satisfactory as they are on average, equivalent to the approved building to the west and privacy is maintained between the two buildings..

Balconies

1. The relevant requirements are a minimum depth of 2m (RFDC, p72) and a minimum area of 10 sq m (DCP 2013, Part B, Control C11, p222).
2. The contention identifies that 60% of the balconies have less than 10 sq m when areas of less than 2m in depth are excluded from the area of some balconies.
3. Mr Miletic accepts that all balconies have portions that are 2m deep however not all units have the principal area in front of the living room but in front of the bedroom. Mr Baker supports the concerns of Mr Miletic.
4. Mr Olson and Mr Hoy confirm that all balconies satisfy the minimum depth and minimum area requirements and capable of accommodating a table and two chairs.

Solar access

1. The relevant requirements are that living rooms and private open space for at least 70% of units should receive 2 hours sunlight between 9am and 3pm in mid-winter for dense urban areas (RFDC, p 85) and a building depth of 10-18 m is appropriate unless it can be demonstrated that satisfactory daylight and natural ventilation is achieved (RFDC, p 27).
2. The documentation provided with the development application indicates that the 70% requirement in the RFDC was achieved however further investigation by Mr King found that only 84 of the 137 units (or 61%) achieved the RFDC requirement by applying stricter constraints on acceptable areas of sunlit glass and impacts of overshadowing from the approved building to the west. Notwithstanding the non-compliance, Mr King maintains that given the adverse orientation of the two long street facades, the non-compliance is acceptable.
3. Mr Miletic states that greater solar access could be provided if the building depth was reduced by providing a greater separation along part of the western boundary. For example, unit 1.1.05 and the similar units on the above 7 levels could have solar access if a greater setback was provided to the approved building to the west.

Findings

1. In considering the differences between the parties, I am satisfied that the proposed development should not be approved for a number of reasons. If the matters I have identified in the proceeding paragraphs could have been address through amendments to the plans; I would have taken this course of action. However the unacceptable elements of the design are fundamental to the design and any changes to address these elements would necessitate other changes to the design.
2. First, I agree with Mr Baker and Mr Miletic that the encroachment of the balconies into the 2.5m front setback is unacceptable. From Part M, the building line setback works in conjunction with the building height to establish a continuity of street facades and the establishment of a particular character. This character is to provide a human scale and achieve a pleasant pedestrian environment (DCP 2013, cl 4.3, p536). If considered in this context, the setback is unacceptable. A 2.5m setback is not large for a 8 storey building but with half of this setback taken up with balconies for around half of its presentation to the street, I have little trouble in concluding that the purpose and relevant objectives for the setback in cl 4.3 are not achieved.
3. Second, I agree with Mr Baker and Mr Miletic that the relationship with the approved building to the west is unacceptable. The RFDC provides separation requirements for the proposed development to the approved development to the west. The separation requirements in the RFDC (at p28) state: Designing the controls • For buildings over three storeys, it is recommended that building separation increase in proportion to building height to ensure appropriate urban form, adequate amenity and privacy for building occupants. Suggested dimensions within a development, for internal courtyards and between adjoining sites are: up to four storeys/12 metres •12 metres between habitable rooms/balconies •9 metres between habitable/balconies and non-habitable rooms •6 metres between non-habitable rooms five to eight storeys/up to 25 metres •18 metres between habitable rooms/balconies •13 metres between habitable rooms/balconies and non-habitable rooms •9 metres between non-habitable rooms nine storeys and above/ over 25 metres •24 metres between habitable rooms/balconies •18 metres between habitable rooms/balconies and non-habitable rooms •12 metres between non-habitable rooms •Allow zero building separation in appropriate contexts, such as in urban areas between street wall building types (party walls).
4. The objectives for Building Separation in the RFDC are: •To ensure that new development is scaled to support the desired area character with appropriate massing and spaces between buildings. •To provide visual and acoustic privacy for existing and new residents. •To control overshadowing of adjacent properties and private or shared open space. •To allow for the provision of open space with appropriate size and proportion for recreational activities for building occupants. •To provide deep soil zones for stormwater management and tree planting, where contextual and site conditions allow.
5. Under the RFDC, and for an 8 storey building, a separation of 18m is required between habitable rooms/balconies.
6. DCP 2013, Part 5 4, Control C5 (at p542) provides for a 9m setback between habitable rooms/balconies for a 5-8 storey building and a setback of 3m for non habitable rooms for a 4-8 storey building. The objectives are: O1. Promote sustainable building design and development and reduce reliance on artificial heating, cooling and lighting. O2. Ensure that adequate cross ventilation and sunlight access is achieved in residential apartments within the high density centre. O3. Provide for viable and functional commercial spaces. O4. Consider the amenity of future residents and workers through building design. O5. Provide sunlight access and streetscape amenity to the public domain.
7. Under DCP 2013, and for an 8 storey building, a setback of 9m is required between habitable rooms/balconies and the side boundary.
8. Effectively, the RFDC and the DCP seek to establish a proper relationship between buildings but the two different documents do it in different ways with the RFDC relying on a separation distance between buildings and the DCP seeking to establish the same numerical relationship but not through a separation distance but with an individual setback for each building from the side boundary.
9. This matter is more complicated than just a non-compliance with the RFDC separation requirements and the setback in the DCP because of an approval (DA 2012/493/2) granted by the council on the property to the west (13-15 Neil Street) for two separate buildings; Building A and Building B. Building B adjoins Building 1. The council report on 15 October 2013 that sought to modify DA 2012/493/2 (which was originally approved on 28 October 2013 for Building A and Building B) the setbacks were not changed from the approved setbacks, based on the description of the proposed modifications. There are three different setbacks to the boundary of the approved building; being 4.5m to the face of the building containing lounge/dining room and a balcony, 6.5m to to the face of the building (except Level 1 where the setback to the balcony edge is 4.5m) and 14.1m to to the face of the building and 12.1m to the balcony edge. At these setbacks, the separation distances are 9m, 11.69m (9.69m to the balcony on Level 1) and 20.1.1m to to the face of the building and 18.1m to the balcony edge, respectively.
10. Even though the council report of 15 October 2013 stated that there was compliance with the building separation requirements (p 10) in DA 2012/493/2, the separation distance did not satisfy the RFDC separation requirements for two of the three parts of the approved buildings and the proposed development and two the three setbacks in the DCP. The council report confirmed this when it stated: Building B has a varying setback of 4.5m to 14m; however a minimum setback of 6.5m is maintained from habitable room windows and 12.5m from a balcony. These separations are considered acceptable for any future development of the adjoining property to the east.
11. The achievement of an appropriate separation distance, based on the RFDC, is problematic when developing in a greenfield scenario as there is no basis on which to assess a setback, i.e. should a separation be provided that assumes the development on an adjoining property will be a habitable room/ balcony or a non-habitable rooms. The difference in separation distances is significant. The setback requirements in the DCP provide a more practicable way to determine an appropriate building separation by addressing each building on its own site.
12. The 4.5m setback of Building B to the side boundary relates to a lounge/dining room and a balcony and is non-compliant with the DCP. It could not be reasonably argued, in my opinion, that by restricting visibility from the lounge/dining room and a balcony to protect visual privacy, that this somehow makes these areas non habitable for the purposes of the DCP or the RFDC. The comments of Mr Baker that the use of privacy screens to windows and balconies where inadequate separation is provided compromises internal amenity is a valid comment. The objectives for the building separation in the RFDC and the DCP make it clear that the separation distance seeks to address other equally important matters beyond just visual privacy.
13. Notwithstanding this, and given the existing approval at 13-15 Neil Street, the question that needs to be answered is whether the proposed separation distances and setbacks are acceptable even though they may not comply with the DCP and RFDC setback and separation requirements.
14. I am not satisfied that the 4.5m setbacks or 9m separation is adequate even though both buildings have been designed to avoid direct overlooking as the potential for acoustic privacy concerns still remains from the balcony areas of both buildings. There a number of small encroachments into the proposed 6m setback of around 500mm for parts of the proposed building that further reduces the setback and separation distance although these encroachments are not significant.
15. I am also not satisfied that the 11.69m (9.69m to the balcony on Level 1) separation is adequate given that the 18m separation is not achieved. The 9.69m separation to the balcony on Level 1 is inadequate even though there is an absence of windows in the bedroom adjoining the balcony and movable screens on the proposed balcony.
16. The 20.1m separation between the buildings and 18.1m separation to the balcony edge satisfy the RFDC requirement for separation although the 9m setback under the DCP is not achieved. For this part of the building, a variation to the setback could be supported because of the acceptable separation distance.
17. Third, the solar access is unacceptable. Given that there are few, if any constraints that affect the site, there is no reason why compliance with the RFDC should not be achieved. Mr King found that only 84 of the 137 units (or 61%) achieved the RFDC requirement.
18. Mr Miletic's comments that greater solar access could be provided by providing a greater separation along part of the western boundary is a valid comment, considering the non-compliance with the separation and setback requirements. I note that the objectives for setbacks in the DCP also seek to achieve solar access as well as visual and acoustic privacy.
19. The proposed building also does not satisfactorily address Principle 3: Built Form of SEPP 65 in that it does not display good design in relation to "building alignment" and "manipulation of building elements". The proposed building also does not satisfactorily address Principle 9: Amenity of SEPP 65 in that it does not display good design in relation to "access to sunlight".
20. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 2015/202 for the construction of a 9 storey residential apartment building containing 137 residential units over 3 levels of basement car parking and associated stormwater and landscape works at Neil Street Merrylands is refused. 3. The exhibits are returned with the exception of exhibit 2.

Buildings 5 and 6 - Appeal No 10617 of 2015

1. Proposed Building 5 is 4 storeys in height and contains 14 units, and proposed Building 6 is 10 storeys in height and contains 103 units.
2. The applicant provided additional information and the council accepted that some contentions could be addressed through conditions of consent. The council maintains that the following contentions remain in issue and warrant the refusal of the application: 1. inadequate building setback, 2. inadequate building separation, 3. inadequate communal open space, 4. inadequate solar access, and 5. inadequate balcony space.

Building setback

1. DCP 2013, cl 4.3 Control CI requires a minimum front setback of 2.5m from the future boundary of the proposed park/swale to be dedicated to the council. Building 5 has a nil setback to the swale.
2. Mr Olsen states that the public/ private domain interface with the swale is well-designed, with privacy to the ground floor private open space being provided with a small step up from the swale and a low balustrade. This ensures that the future residents do not feel enclosed by a high fence, and yet have privacy. There is casual surveillance of the swale and street from the ground floor private open spaces of the ground level units.
3. Mr Baker states that the lack of a setback means that the ground floor units cannot have private courtyards facing the swale which comply with the standards in the RFDC (minimum 25sq m and minimum 4m width) and are open to the sky. The proposal provides for a "balcony" the same as the floors above rather than utilizing the setback to provide a "courtyard" private open space area that would achieve better amenity for future residents.

Building separation

1. The relevant requirements are a 6-12m separation up to 4 storey buildings, 9-18m separation for 5-8 storey buildings and 9 storeys and above, a 24m separation depending on use of rooms/areas in the units (RFDC, p28).
2. The setback of the southern facade of Building 6 from the southern boundary is a minimum of 5m.
3. Mr Baker states that the setback is approximately 5m to the edge of the balconies to Levels 2 and 3. Assuming the future building on the site and to the south (Building 4) is at least as tall as Building 6 (10 storeys), the RFDC requires a minimum separation of 12m between non-habitable room and non-habitable room. Shared equally, this means a minimum setback for Building 6 of 6m, not the 5m provided. Furthermore, the presence of habitable rooms with openings on the southern facade of Building 6 means that the setback should be 12m (or half of the 24m separation required habitable room to habitable room). If the opening to the living area of unit 6 on Level 1 and above was fixed translucent glass allowing light but not air and the problem with the bedroom opening were addressed, the setback would be satisfactory.

Communal open space

1. DCP 2014, Part B, cl 6.6, Control C1 provides that a consolidated parcel with minimum dimension of 4m that allows for active and passive recreation shall be provided as common open space. The RFDC requires a minimum of 25% to 35% of site area to be provided as consolidated, configured and designed to be usable and attractive, passive and active.
2. The council maintains that the proposal provides less than 25% in 3 unusable elongated spines of common open space with minimal solar access and opportunities for recreation, which is considered unacceptable on a large brownfield site adjacent to the amenity impacts of the railway corridor.
3. Mr Olsen states that communal open space is provided at ground and on the roof of Building 6. It is acceptable in terms of size, configuration, solar access and functionality. Also, communal open space is provided in substantial areas at ground that are 55m x 9m and 40m x 10m, which are very useable passive spaces. In addition, a path potentially circumnavigating Building 6 will allow for active recreation.
4. Mr Olsen further states that the communal roof terrace on Building 6 adds to the communal open space at ground, with a different type of communal space. It is possible that the future occupants of Building 5 may also use the roof top terrace of Building 6.
5. Mr Baker states that using the lower RFDC percentage of 25% of the site area equates to a minimum of 977sq m of communal open space. In his view, it is not clear if any communal open space is being provided at ground level. The only open space area available that might be considered for this purpose is in the setback area to the north of the buildings, but this is overshadowed by the neighbour to the north and has no area for active recreation.
6. The area of the roof garden on Building 6 is less than one third of the minimum area identified in the RFDC and this area may not be available to the residents of Building 5. While the use of roof gardens for Buildings 1 and 2 as communal open space is acceptable, in part because of their site limitations, Mr Baker believes that an alternative configuration of buildings on the site could yield a large, north-facing communal open space at ground level which could accommodate both passive and active recreation.

Solar access

1. The relevant requirements are that living rooms and private open space for at least 70% of units should receive 2 hours sunlight between 9am and 3pm in mid-winter for dense urban areas (RFDC, p 85) and a building depth of 10-18 m is appropriate unless it can be demonstrated that satisfactory daylight and natural ventilation is achieved (RFDC, p 27).
2. Mr Militec and Mr Baker rely on the detailed assessment of Mr King. He states that the overall proportion of apartments deemed by the architects as complying is over 70% and following a detailed assessment of the compliance table prepared by the architects, Mr King agrees with their assessment. He notes that due to the relative location of the buildings, there is in effect no winter overshadowing impact by these building on its neighbours.
3. Mr King further states that the contention of excessive building depth generally arises from the double loaded arrangement of the building floor plates however from the point of view of building depth contribution to apartment amenity, Mr King considers it more relevant to examine the individual dwellings as single aspect apartments, with little or no relevance to the overall dimension. The apartments would have the same amenity, irrespective of any additional width arising from the access corridors, or from the particular design of the apartments on the other side of such corridors.

Balcony size

1. DCP 2013 , Part B, Control C 11, provides that balconies shall be 10sq minimum, a minimum 2 m width for studio & 1 bedroom units, and minimum 2.4 m width for 2 bedroom or more units. The RFDC (p72) requires balconies to be a minimum of 2m wide to accommodate a table and two chairs and 2.4m wide to accommodate four chairs and a table. The RFDC requires ground floor courtyards to be minimum 25sq m and 4m in width.
2. The council contends that the proposal provides 59 primary balconies less than 10sq m when sections less than 2m wide are excluded. Furniture layouts have also not been provided to demonstrate the usability of undersized balconies as required by the RFDC.
3. Mr Olsen states that courtyards range from 14sq m to 75sq m in area but the geometries of the site create differences in the provision of courtyard areas. There are 17 ground floor apartments, with a total courtyard area of 498sq m. This is an average of 29sq m per courtyard. The areas of courtyards are acceptable, in his view as balconies have an area with a minimum depth of 2m. The RFDC states that "A 2m deep balcony can comfortably accommodate a table and two chairs". Some balconies have parts that are less than 2m wide, but there are no balconies that are less than 2m wide for the whole balcony.
4. Mr Olsen states that the ground floor balconies in Building 5 are 10sq m in area. There are extensive areas of communal open space, the public park and swale and Holroyd Gardens in the near vicinity for communal and public recreation spaces.
5. Mr Baker maintains that various balconies are still inadequate in size when the unusable narrow portions of the balconies are discounted from the overall areas.

Findings

1. In considering the differences between the parties, I am satisfied that the proposed development should not be approved for a number of reasons. If the matters I have identified in the proceeding paragraphs could have been address through amendments to the plans; I would have taken this course of action. However the unacceptable elements of the design are fundamental to the design and any changes to address these elements would necessitate other changes to the design.
2. First, I agree with Mr Baker that the provision of communal open space is inadequate for the future population of Buildings 5 and 6. With the provision of the communal roof terrace on Building 6 some of the issues identified by the council have been addressed although not an acceptable level. The suggestion that a communal roof terrace be provided on Building 5 has merit as it will overcome the logistical and practical difficulty of providing communal open space for the future occupiers of Building 5 on the roof of Building 6. The provision of roof top communal open space also addresses any concerns over solar access to communal open space issues.
3. I however disagree with Mr Baker that the ground level areas identified as communal open space are "barely useable" because the areas are dissected by paths and entries and do not provide a sufficient area to kick a ball. These areas could provide suitable areas of communal open space. In my understanding, communal open space serves a number of purposes beyond providing a venue for activities that involve more active pursuits. Communal open space also provides a landscape character and amenity for the site, an attractive outlook from units and the opportunity for social interaction. I do not accept that the ground level areas could not achieve these functions by minimising the areas of the paths and access ways, appropriate landscaping and seating.
4. I am also not satisfied that the suitability of an area of communal open space should be assessed on the ability to kick a ball. It would seem that an oval (such as the adjoining Holroyd Gardens or similar) would be appropriate for an adolescent to kick a ball rather than a communal open space although much younger children could likely kick a ball without impacting on residents using this area.
5. Second, I do not accept that adequate solar access is provided. There was no dispute that the combined solar access for Building 5 and Building 6 satisfied the requirement that living rooms and private open space for at least 70% of units receive 2 hours sunlight between 9am and 3pm in mid-winter. In my view, this is misleading as Building 5 achieves 100% but Building 6 receives only 63%. Even though Building 5 and Building 6 are contained in one application I do not accept that this should preclude each building being assessed under the requirements in the RFDC.
6. The non-compliance with the solar access requirements for Building 6 falls within the broader concern of the council that the proposed buildings are inconsistent with the form of development envisaged by the DCP. I agree with the comments of Mr Militec that there is no legal reason why a DCP should be blindly followed however if there are substantial changes to the DCP, these changes should only be considered if the changes result in distinct improvements to the DCP requirements. I am not sure that a change to a DCP has to result in a substantial improvement for any support to be given to a variation to a DCP however comparing the proposed layout of buildings in the DCP and the layout proposed in this application. It can reasonably be concluded that, in general terms, that there will be a decreased level of solar access with the form and location of buildings proposed in the application compared to the form and location of buildings proposed in Part M of DCP 2013.
7. Third, I am not satisfied that the balcony areas are adequate. The RFDC does not provide a minimum area for balconies but sets requirements for depth to allow either a table and two chairs (2m) or a table and four chairs (2.4m). The 10sq m requirement comes from DCP 2013 , Part B, Control C 11. While a number of balconies satisfy both the RFDC and DCP requirements, a number do not provide 10 sq m and the minimum width for the whole balcony. For example, unit 5.0.01 is a one bedroom + study unit with a balcony that has a notated area of 10sq m however this area is made up of two distinct areas (as scaled from the architectural plans) of 3.2m x1m (3.2sq m) and 3 x 2.4m (7.2sq m). Given the relatively dense nature of the area, I agree with the council experts that a minimum of 10sq m should be provided with at least a minimum depth of 2 m.
8. The minimum front setback of 2.5m from the future boundary of the proposed park/swale is not, in my view, a significant issue and would not be a reason to refuse the application if there were no other matters that warranted refusal.
9. The proposed building also does not satisfactorily address Principle 3: Built Form of SEPP 65 in that it does not display good design in relation to "building alignment" and "manipulation of building elements". The proposed building also does not satisfactorily address Principle 9: Amenity of SEPP 65 in that it does not display good design in relation to "access to sunlight" and "outdoor space".
10. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA2015/63 proposes the construction of a part 4 and part 10 storey residential apartment development containing 117 residential units over 2 levels of basement car parking and associated stormwater and landscape works.at Neil Street Merrylands is refused. 3. The exhibits are returned with the exception of exhibit 2.

Building 2 - Appeal No 10654 of 2015

1. Building 2 proposes the construction of a 9 storey residential apartment building containing 93 residential units over 3 levels of basement car parking, temporary access to Neil Street and associated stormwater and landscape works.
2. The applicant provided additional information and the council accepted that some contentions could be addressed through conditions of consent. The council maintains that the following contentions remain in issue and warrant the refusal of the application: 1. inadequate building setbacks, 2. inadequate building separation, 3. unacceptable temporary access, and 4. poor internal amenity.

Building setback

1. The relevant requirements are a 2.5m building setback to proposed new park (DCP 2013, Part M, Figure 6, p538) and balconies are not to extend beyond the required setback (DCP 2013,Part C, Control C22, p159).
2. Building 2 does not satisfy this requirement as the bedrooms of Units 2.1.02 and 2.1.03 and above encroach and their balconies occupy the full depth of the setback. Balconies to the east of these unit lines encroach into the setback 1m.
3. Mr Olsen states that the balconies and bedrooms of the western part of the building align with the balconies and bedrooms of the adjoining approved DA at 13-15 Neil Street. He concludes that this is a good urban design outcome.
4. Mr Baker states that the proposal should respect the minimum setback in the DCP. The requirement is of particular concern as the courtyards of ground floor units 2.0.1 and 2.0.3 are only 1.2m and 2.5m deep and are overshadowed by the floor slab above. The necessary privacy fence along the outer edge further restricts access to light and air. The adjoining public walkway will also result in acoustic privacy problems making the internal amenity of these units unacceptable.

Building separation

1. The relevant requirements are a 6-12m separation up to 4 storey buildings, 9-18m separation for 5-8 storey buildings and 9 storeys and above, a 24m separation depending on use of rooms/areas in the units (RFDC, p28). DCP 2013, Part 4.4, Control C6 requires the maximum horizontal length of any building above the podium shall not exceed 50m.
2. There is no proposed setback from the western side boundary. The council contends that given the proposed 53.3m building length east- west, this results in an excessive building length along Neil Street of over 80m when combined with the adjoining approved development to the west. The council advocates a 9m setback.
3. Mr Olsen agrees that the total length of Building 2 and the approved building to the west is 80m however there are building envelopes in Part M of the DCP which are greater than 80m. The envelope on the southern side of Neil Street is 100m long and the envelope on the western side of Pitt Street is 90m long. On the subject site, the DCP envelope east of the approved building (not including the 6m gap) is 58m plus 30m (a bent building) for a total of 88m. The 88m building length would be completely visible from the new street. The DCP envelope of the subject site viewed from Neil Street is 72m long (not including the proposed 6m gap). A 6m gap to the adjoining approved building to the west is not wide enough to make an appreciable difference in the overall building frontage length, which visually would be 100m.
4. Despite the overall length of Building 2 and existing approved building to the west, Mr Olsen considers the two buildings will read as two distinct buildings with quite different architectural styles. Balconies in each respective developments are oriented away from each other. On balance, the proposed zero setback presents a better built form outcome that does not impact on future residential amenity. Mr Olsen further states that building to the blank wall outweighs the disbenefits as a blank wall is covered up. A 6m setback would be in-sufficient to create a substantial break between buildings when viewed from many angles. The space in a dark and unattractive gap created by a 6m setback can be better used to increase openings in other parts of the site.
5. Mr Hoy states that good planning practice requires the sharing of side setbacks. This has been reflected in the RFDC and more recent Apartment Design Guide (the replacement of the RFDC). A party wall approach to the design of 13-15 Neil Street is a good design for the site, just as building up to the blank party wall is also a good design approach.
6. Mr Baker comes to a different conclusion. He states that with the proposal abutting the approved development immediately to the west, the overall length of the two buildings combined is 83m. This is well in excess of the 50m control and is not acceptable. Assuming that the proposal has no openings to habitable rooms or balconies facing west, its separation from the approved building should be 9m. The purpose of this setback is to ensure that the two buildings will clearly read as distinct and separate masses when seen from the new street and park to the north and Neil Street to the south. The width of the eastern facade of the approved building is approximately 13m so that a 9m gap would not be perceived as narrow. Since the gap opens to the north, sunlight will penetrate fully around midday and reflect off the walls facing the proposed building.

Temporary access

1. The council contends that the development application should be refused because it will result in development on land that has frontage, and proves access to a "classified road" as defined in State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) in circumstances where it has not been satisfactorily demonstrated that vehicular access via another road is not practicable.
2. Mr Militec states where frontage to a road other than a classified road is available, it is considered reasonable and practicable to obtain access from that road prior to the issuing an Occupation Certificate. Whilst no objections have been raised on traffic grounds for access from Neil Street from the Roads and Maritime Services (RMS) it has not been demonstrated that alternative access is not practicable from Dressler Court.
3. The current proposal to provide "temporary" access off Neil Street for the completed development could be in place for a significant period of time, possibly years. Access from Dressler Court is available and it is open to the applicant to construct a temporary road (as proposed for Buildings 1, 5 and 6) or propose a Section 94 works-in-kind arrangement for the ultimate construction of the proposed road within the development site.
4. Mr Militec accepts that temporary access off Neil Street during construction is reasonable, but permanent access should be provided from Dressler Court or the future construction of the new road from the adjoining approved development immediately to the west.
5. While the RMS have proposed conditions of consent to be implemented in relation to the proposed temporary access via Neil Street, Mr Militec maintains that these conditions will be difficult and impractical to implement because the conditions require the, provision of a bond to the council for the removal of a temporary driveway, and construction of permanent driveway post occupation of the development. The implementation of impractical conditions requiring council to deal with a future Body Corporate is unnecessary and unreasonable given alternative access to Dressler Court is currently available to the development site.
6. Mr Hoy states that the extension of Dressier Court to service the estate is reflected in Council's s.94 contribution Plan (New Road 2" item TML 28 -Transport Works Program -Merrylands Centre Local Transport - Local transport Works (Residential and Non Residential development)). Mr Hoy states that this is a planned council road and the applicant will be paying contributions towards the provision of this road. The timing for the delivery of this road is therefore the responsibility of council. The temporary access arrangements off Neil Street are therefore appropriate in these circumstances and the conditions sought to be imposed by the RMS are acceptable.

Findings

1. In considering the differences between the parties, I am satisfied that the proposed development can be approved although some amendments need to be made to the design.
2. The setback (or lack of) to the approved building to the west was the significant issue in these proceedings even though the building setback and separation are set out clearly in DCP 2013. The source of the dispute centred on the approval of DA 2012/493/2 at 13-15 Neil Street, particularly Building A.
3. As was with case with the setback to the west of Building 1, the setback of Building 2 is more complicated than just a non-compliance with the RFDC separation requirements and the setback in the DCP because of the approval granted by the council on the property to the west at 13-15 Neil Street. In this case, Building A was approved with a nil setback. Mr Baker and Mr Olsen addressed this constraint through different means with Mr Baker requiring a 9m setback, being half the RFDC separation, and Mr Olsen providing a nil setback for Building 2 where Building A adjoined the boundary and with an indent in Building 2 to break up the joint façade.
4. The council report on 15 October 2013 justified the nil setback by simply stating "Building on Lot A has nil setback along its eastern boundary which is considered acceptable as there are no openings proposed along this elevation that will impact on future development to the east".
5. Faced with a decision of whether Building 2 should have a nil setback or a 9m setback to the west, I am satisfied that the nil setback is the better of the two options for a number of reasons. First, and while the council report relies totally on the absence of any windows in the eastern elevation of Building A; this in itself is a negative aspect of a 9m setback as it will expose a bland, unarticulated and monotonous façade to public viewing. Second, and even though there is no suggestion in the council report of a nil setback for Building 2, the eastern façade of Building A appears to clearly contemplate such a course of action. Third, I accept the comments of Mr Olsen that the different architectural styles of the two buildings will read as two distinct buildings although I would add, not to the same extent as they would with the RFDC separation. Fourth, any outlook from Building 2 in a westerly direction, even at a 9m setback, would be to a largely blank wall and receive no solar access
6. In coming to this conclusion, I do not accept Mr Olsen's evidence on the building envelopes in Part M of the DCP that are greater than 80m support his position as Control C6 in s 4.4 of Part M of the DCP still requires the maximum horizontal length of any building above the podium not to exceed 50m.
7. I would also propose that the indent in Building 2 to provide the appearance of a separation to Building A be increased to 9m while maintaining the same depth on the northern and southern facades. This will provide a greater appearance of separation and allow greater solar access to the rooms in the indent.
8. On the matter of temporary access, I agree with Mr Hoy that the temporary access arrangements off Neil Street are appropriate in the circumstances and the conditions sought by the RMS should be imposed. The Court was taken to the judgment of Preston CJ in Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 where His Honour addresses s 101 of SEPP Infrastructure. This clause states: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
9. A significant and fundamental difference between Modern Motels and this case is that the former sought permanent access whereas the current application seeks only temporary access. This, in my view, is sufficient to distinguish this case from Modern Motels, particularly given that the RMS has accepted that the temporary access is acceptable.
10. If I am incorrect in this conclusion, the relevant part of His Honours judgment is set out in par 42 and states: 42. …. The phrase "where practicable" regulates the desired outcome ("vehicular access to the land is provided by a road other than the classified road"). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road.
11. I am satisfied that it is not practicable to provide vehicular access to the land by a road other than the classified road for a number of reasons. First, there is no other vehicular access to the land other than by Niell Street even though other access is planned (see Part M of the DCP). Second, the provision of the planned access is not the responsibility of the applicant but the council who included the construction of the new planned access as part of a s94 contribution plan. The draft conditions of consent include payment for this new planned road and the council offered no reduction in the s94 contributions if the applicant sought to construct the new road, although this was not an option favoured by the applicant.
12. It appeared from the oral evidence of Mr Militec that the council simply did not want to be placed in a position to enforce the RMS conditions of consent or potentially deal with an Owners Corporation, if Building 2 was strata titled. I find that this is a peculiar response in that council has a statutory obligation to enforce conditions of consent and that there were no traffic reasons why the temporary access to Neil Street would not function until permanent access is provided.
13. The internal amenity issues can be addressed through some minor internal changes and are not, in my view, a significant issue and would not be a reason to refuse the application if there were no other matters that warranted refusal.
14. Similarly, the minimum setback of 2.5m from the future boundary of the proposed park is not, in my view, a significant issue and would not be a reason to refuse the application if there were no other matters that warranted refusal.

Conditions of consent

1. The parties disagreed on a number of conditions of consent, being: Deferred commencement conditions 1-6 Schedule A - these conditions address stormwater disposal however following further details provided by the applicant there was agreement on flooding and stormwater disposal, so these conditions can be deleted. Condition 1- this condition provides for a 3 year time limit to the consent whereas the applicant seeks a 5 year time limit. I accept the applicant's amendment as s 95 of the EPA Act provides that a development consent lapses 5 years after the date from which it operates although the EPA Act provides the opportunity for a reduced time. I am not satisfied that the council provided sufficient reasons to vary the 5 year period in s 95. Condition 10 - this condition requires the payment of s 94 contributions prior to the issue of a Construction Certificate whereas the applicant seeks payment prior to the issue of an Occupation Certificate. I accept the applicant's amendment as the additional demand for goods and services will not occur prior to occupation. Condition 32 - this condition requires, prior to the issue of an Occupation Certificate, the submission of amended plans to show that the development complies with the Disability (Access to Premises-Building) Standards 2010. The applicant seeks deletion of this condition as details have already been provided. This condition re-states the law and is a matter that should be addressed as a specific contention, if there were any non-compliances. The condition can be deleted. Conditions 46 and 47 - these conditions address the temporary construction of a new planned road and are inconsistent with findings on temporary access from Neil Street. The conditions can be deleted. Condition 170 - this condition requires the land required for the new planned road to be transferred to the council at no cost whereas the applicant seeks the land in question to be purchased. I accept the applicant's amendment. Condition 176- this condition repeats condition 179 and can be deleted. Condition 177 - this condition requires all temporary works to be removed firstly, prior to the issue of an Occupation Certificate, and secondly, following the construction of the Dressler Court extension. The applicant seeks the deletion of the requirement of prior to the issue of an Occupation Certificate. I accept this change as the timing of the temporary works is still controlled by the construction of the Dressler Court extension.

Amended plans and conditions

1. The judgment identifies a number of matters that require further consideration by the applicant by way of amended plans and conditions. These are: 1. the indent in Building 2 be increased to 9m in width while maintaining the same depth on the northern and southern facades to provide the appearance of greater separation to Building A, 2. fully internalized rooms are to be amended so that they are not habitable, and 3. the enlargement of windows for units 2.1.01, 2.1.08 and 2.1.09 and above to provide greater amenity.
2. On the filing of agreed amended plans and conditions that reflect the findings in the judgment, orders will be made in chambers that state: 1. The appeal is upheld. 2. Development Application DA2015/203 proposes the construction of a 9 storey residential apartment building over 3 levels of basement car parking, temporary access and associated stormwater and landscape works.at Neill Street Merrylands is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit 2.

Future directions

1. Based on the interim findings, amended plans and amended conditions will need to be prepared. An appropriate timetable will be discussed with the parties when the interim findings are handed down.

Addendum made on 18 May 2016

1. In accordance with the terms of the directions in my judgment of 13 January 2016, I make orders in chambers as follows: 1. The appeal is upheld. 2. Development Application DA2015/203 proposes the construction of a 9 storey residential apartment building over 3 levels of basement car parking, temporary access and associated stormwater and landscape works.at Neill Street Merrylands is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit 2. G T Brown Commissioner of the Court

Amendments 14 January 2016 - Amended the year of orders made 22 June 2016 - In accordance with the terms of the directions in the judgment of 13 January 2016, Commissioner Brown made orders in chambers on 18 May 2016. 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 June 2016