Laneform Pty Ltd v Hurstville City Council

Land and Environment Court (NSW)|2013-10-14|Before: Mr P

Judgment 1COMMISSIONER: This is an appeal against the refusal of DA No. 12/DA-349 by Hurstville City Council for the construction of a part 2 and part 3 mixed use building comprising basement car park, commercial tenancies and residential apartments at 556 Forest Road Penshurst (the site). 2The ground floor level contains four commercial tenancies to Forest Road and at the corner with Inverness Avenue. The ground, first and second floors contain a total of 27 residential apartments comprising a mix of 1, 2 and 3 bedroom units. The site is the eastern end of Penshurst local centre. 3The council maintains that the application should be refused because of:

the detrimental impact on the streetscape and adjoining residential properties as a result of the breach of the height standard, and consequently whether any variation can be supported, and
the poor residential amenity for some units.

The site 4The site combines a triangular area and a rectangular area to form an irregular shape with a total area of 2002 sq m. The site has a frontage to Forest Road of 61.595m and a frontage to Inverness Street of 54.61m. It is generally level adjacent to Forest Road, but falls towards a low point at its northern corner adjacent Inverness Street, with an overall change in level around 2m. The land is vacant other than for some remnant hardstand areas and retaining walls associated with former use of site as a service station. There is no vegetation on the site. 5Land adjoining the site to the west along Forest Road supports a range of residential and commercial uses. Land adjoining the site to the north and east along Inverness Street supports low density housing. Opposite the site across Forest Road are 3 and 4 storey residential flat buildings. A heritage item is located opposite the site at 469 Forest Road although no heritage contentions are raised by the council in relation to the proposal.

Relevant planning controls 6The site is within Zone B2 Local Centre under Hurstville Local Environmental Plan 2012 (LEP 2012), which was gazetted on 7 December 2012. The proposed development is permissible in this zone with development consent, if defined as "Commercial premises" and "Shop top housing". The objectives of the B2 zone are: · 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 maintain a commercial and retail focus for larger scale commercial precincts. 7Clause 4.3 addresses height and states: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes, (c) to minimise the adverse impact of development on heritage items, (d) to nominate heights that will provide a transition in built form and land use intensity. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 8The Height of Buildings Map provides for a maximum height of 9 m. It was agreed that the development exceeded the 9 m height limit with heights at the street frontage ranging between 9.5 m and 10.3 m (excluding parapet height). 9As the development was lodged with the council on 6 December 2012, the application falls within the provisions of cl 1.8A that states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 10The environmental planning instrument that applied to the site prior to LEP 2012 was Hurstville Local Environmental Plan 1994 (LEP 1994) where the site was within Zone No 3(c) (Business Centre Zone). The proposed development is permissible in this zone with development consent, as it falls within "Any purpose other than a purpose included in item 1 or 3" in the zoning table. The objectives of the 3(c) zone are: (a) to maintain a commercial and retail focus for larger scale commercial precincts, (b) to allow for residential development in mixed use buildings, with non-residential uses on at least the ground level and residential uses above, so as to promote the vitality of business centres, and (c) to provide opportunities for associated development such as parking, service industries and the like. 11Clause 8(3) states: (3) Except as otherwise provided by this plan, the council may grant consent to the carrying out of development on land to which this plan applies only if the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out and has considered the extent to which the proposed development is consistent with those objectives. 12Clause 15A addresses height and states: 15A Height restrictions for land within Zones Nos 3 (a) and 3 (c) (1) Despite any other provision of this plan, but subject to subclause (1A), buildings exceeding 2 storeys in height must not be erected on so much of the land within Zone No 3 (a) or 3 (c) as is shown edged heavy black on the height map for Zones Nos 3 (a) and 3 (c). 13The building has a 3 storey presentation to Forest Road and part of Inverness Avenue with the remainder of Inverness Ave is 2 storey, as is the presentation to the adjoining residential developments. There was no disagreement that the development breached the 2 storey height requirement however an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided to show that strict compliance was unreasonable and unnecessary in the circumstances of the case.

The assessment approach 14There was no dispute that cl 1.8A applies and LEP 2012 is a mandatory consideration in the assessment of the application under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142). 15The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 16If the draft LEP is imminent and certain (which it must be, given that it is currently in force), Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the B2 zone and whether the proposed development will undermine the objectives of this zone. 17In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 18His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 19The questions to be answered are firstly, as LEP 2012 is imminent and certain, what weight should LEP 2012 be given in the consideration of the application and secondly, whether the proposal undermines the expressed future planning objectives for the area in LEP 2012.

The evidence 20Expert evidence on height was provided by Mr Lindsay Fletcher for the applicant and Ms Gabrielle Morrish for the council. They firstly agreed that unit 25 should be deleted to provide a better transition to the adjoining residential dwelling at 1 Inverness Avenue (being one dwelling that forms part of a dual occupancy with the dwelling at 1A Inverness Avenue at the rear) as well as removing any potential amenity impacts on this dwelling and secondly, they agreed that unit 8 should also be deleted for the same reasons for the adjoining residential dwelling at 1A Inverness Avenue that is located directly behind 1 Inverness Avenue. 21They agreed on a number of issues in relation to the height, including the acceptability of the breach of the 2 storey or 9 m height standard on the Forest Road given the character established by the 3 and 4 storey residential developments on the opposite side of Forest Road and also the mixed character of the B2 zone that consists of newer developments up to 4-5 storeys and also smaller scale developments that are likely to be redeveloped in the future. They also agreed that a breach of the 2 storey or 9 m height standard was appropriate on the Inverness Street frontage towards the corner with Forest Road. 22Where Mr Fletcher and Ms Morrish disagreed was over the number of third storey units facing Inverness Avenue that should be removed to address the streetscape impacts on this street. Mr Fletcher maintained that with the removal of unit 25 no other issues remained in terms of streetscape Ms Morrish, on the other hand, was of the view that in addition to unit 25, adjoining units 23 and 24 should also be deleted to provide a greater length of 2 storey building form to address Inverness Avenue and the residential dwellings on the opposite side of the street. The consequence being that Mr Fletcher concluded that the SEPP 1 objection was well founded and Ms Morrish concluded that it was not well founded, albeit only for that part of the Inverness Avenue frontage that included units 23 and 24.

The SEPP 1 objection 23The SEPP 1 objection addresses the objection in the manner set out by Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 and by Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446. 24In Winten, and in the absence of any specific objectives for the height standard, the SEPP 1 objection adopts the zone objectives although it is stated that the zone objectives do not have any direct relevance to the height standard so the variation is tested against the built form context and amenity impacts. In this regard, the SEPP 1 objection concludes that the existence of many 4 and 5 storey buildings (even though they may have been approved under a different planning regime) establish the context and character of the area. The proposal creates a step and a suitable transition in the building form where it adjoins residential development in Inverness Avenue. Further, the proposal creates no amenity impacts such as overshadowing or loss of privacy for adjoining or nearby residential properties. 25On this basis, strict compliance with the development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded. 26In Wehbe, one way of testing whether a SEPP 1 objection is well founded is to ask whether the objectives of the standard are achieved notwithstanding non-compliance with the standard. For similar reasons as those set out in the considerations in Winten, the SEPP 1 objection concludes that strict compliance with the development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.

Is the SEPP 1 objection well founded? The assessment framework 27The decision by Preston J in Wehbe supplements the finding in Winten and identifies five ways of establishing that strict compliance is unreasonable or unnecessary. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). This was the approach identified in the SEPP 1 objection. 28As stated in Wehbe, the Court must be satisfied of three matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The three matters are:

the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1).
the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: (1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (2) the promotion and coordination of the orderly and economic use of developed land."
the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 29As LEP 2012 is imminent and certain, it must be given significant weight. The relevant question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms, be consistent with the expressed future planning objectives for the area. I am satisfied that at a land use level, the proposal is consistent with the zone objectives for the B2 zone and the planning objectives for the area. While there are definitional issues between LEP 1994 and LEP 2012, the site can still be used for commercial and residential uses under both instruments. Consequently, the question of assessing different land uses as part of the future planning objectives for the area does not arise, in this case 30Any potential inconsistency with the future planning objectives for the area arises only as part of the building form, and specifically the height, anticipated by LEP 1994 and LEP 2012. Under LEP 1994, the maximum height was 2 storeys and under LEP 2012, the maximum height is 9 m. As stated in the SEPP 1 objection, cl 15A that addresses height has no specific objectives and while an attempt was made to rely on the zone objectives; these were largely irrelevant and unhelpful. With no specific height objectives in LEP 1994, I see no reason why the height objectives in LEP 2012 should not be adopted, not because they are from LEP 2012, but because they provide reasonable objectives for a height standard and generally reflect the more general approach in the SEPP 1 objection (and which was accepted by the council), but with greater specifity. 31These objectives are: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes, (c) to minimise the adverse impact of development on heritage items, (d) to nominate heights that will provide a transition in built form and land use intensity. 32Objectives (c) and (d) are not relevant however objectives (a) and (b) are relevant, in this case. For objective (a), I agree with Mr Fletcher and Ms Morrish that the 3 storey form is compatible with "height, bulk and scale of the existing and desired future character of the locality" when viewed from Forest Road. The existence of residential buildings on the opposite side of Forest Road and even taller buildings within the same zone as the site establish this compatibility. For objective (b), I also agree with Mr Fletcher and Ms Morrish that the proposal, with the deletion of units 8 and 25, minimises "visual impact, disruption of views, loss of privacy and loss of solar access to existing development". No issue arose in relation to "public areas and public domain, including parks, streets and lanes". 33On the disputed question of whether the 3 storey component of the development in Inverness Avenue is compatible "with the height, bulk and scale of the existing and desired future character" of the residential dwellings on the opposite side of Inverness Avenue, I agree with Mr Fletcher that the proposed height is acceptable for number of a reasons. First, and in terms of bulk, the proposal is below the 1.5:1 floor space ratio (FSR) in cl 13 of LEP 1994 with an FSR 1.29:1. Second, and while the storey control in LEP 1994 has not been abandoned in the Wehbe sense, this measurement of height has been replaced by a maximum height in metres in LEP 2012, where it is technically possible to have a 3 storey form and comply with the 9 m limit. Third, and in relation to desired future character of the locality, and even though the existing dwellings on the opposite side of Inverness Avenue are generally single storey, the R2 Low Density Residential zoning of this area allows for Attached dwellings, Dual occupancies and Multi unit dwellings with a maximum height of 9 m. For these reasons, I am satisfied that the proposal is consistent with the adopted objectives of the height standard. 34It follows that the SEPP 1 objection is consistent with the aims of SEPP 1, strict compliance with the development standard, in this case, is unreasonable and unnecessary, does not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is a no significant public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is well founded. 35As the principal issue in the proceedings was the height, at part of the Inverness Avenue frontage, and this has been fully addressed as part of the consideration of the SEPP 1 objection, no further assessment of the height is required beyond stating that it is acceptable, notwithstanding the breach of the height requirement. 36Pursuant to cl 8(3), I am satisfied that the proposal "is consistent with the objectives of the zone within which the development is proposed to be carried out" having considered the extent to which the proposed development is consistent with those objectives.

Poor residential amenity for some units 37Ms Morrish states that the residential amenity for some units is unacceptable. Unit 4 has a study that has no access to natural light, outlook or cross ventilation. Also, the second bedrooms for units 6, 7, 19, 20 and 21 rely on the open walkway for light and air and these rooms will suffer loss of acoustic and visual privacy from people using the walkway. 38Mr Fletcher acknowledges the matters raised by Ms Morrish and concludes that it is not unreasonable for a study to have reduced amenity and details have been provided that visually screen the bedrooms for units 6, 7, 19, 20 and 21 for the relatively short walkway. 39On this matter, I agree with Mr Fletcher. Given the irregular shaped lot and the necessary building form, I accept that the matters identified by Ms Morrish are not optimal but are not, in my view, sufficient to warrant the refusal of the application. The study in unit 4 is not necessarily a room that mandates direct air and light, although it would be clearly a benefit for people using this area. Similarly, direct air and light would be beneficial for the second bedrooms for units 6, 7, 19, 20 and 21 however the screens proposed will prevent visual privacy while allowing air into these rooms. Given the small length of the walkway and the likely number of movements, I would not expect any unreasonable levels of acoustic impacts.

Orders The orders of the Court are: 1.The appeal is upheld. 2. DA No. 12/DA-349 for the construction of a mixed use building comprising basement car park, commercial tenancies and residential apartments at 556 Forest Road Penshurst is approved subject to the conditions in Annexure A. 3.The exhibits are returned with the exception of exhibits 2, A and G.

G T Brown 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: 24 October 2013

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Judgment (9 paragraphs)

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Cases Cited (2)