Leice Pty Ltd v City of Canada Bay Council - [2021] NSWLEC 1627 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Leice Pty Ltd v City of Canada Bay Council

[2021] NSWLEC 1627

Land and Environment Court (NSW)|2021-09-24

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-09-24

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Judgment

COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of DA/2020/0269 by the Respondent, City of Canada Bay Council (Canada Bay Council). The development application was lodged on 22 October 2020 and as amended seeks consent for demolition of existing structures and construction of a mixed use development comprising part 10, part 17 and part 18 storey building with 201 residential units, ground floor retail and a basement containing 221 parking spaces. The development is proposed at 2-10 Leicester Avenue, Strathfield.
Since the filing of the appeal the development application has been amended with leave of the Court, both on 23 August and 23 September 2021. The development for which consent is sought is summarised below: "Basement parking for 221 vehicles 55 x 1- bedroom residential units 16 x 1-bedroom plus study residential units 89 x 2- bedroom residential units 41 x 3- bedroom residential units 105m² ground floor retail space." (Exhibit K)
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.
The Respondent has confirmed that the development application is uploaded to the NSW Planning Portal, meeting the requirements of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).
Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal on the following grounds: 1. That the waste collection room and the ground floor waste room are located below the flood level. 2. Whether the overall height of the proposed southern building is satisfactory. 3. Whether the proposed setback of the southern building to Cooper Street is acceptable.

[2]

[4]

Planning Controls

In accordance with the requirements of cl 49(1) of the EP&A Regulation, consent has been provided by the owners of the land the subject of the Development Application.
Clause 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires a consent authority to consider: firstly whether the land is contaminated; secondly, if the land is contaminated, whether the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and finally to be satisfied that if remediation is required, it will be carried out prior to the use commencing. The Applicant has prepared a site investigation report which concludes that the subject site is suitable for the proposed residential use (Exhibit A). Based on the conclusion of suitability of the site, the annexed conditions require the preparation of a detailed contamination report to inform construction. Accordingly, I accept that cl 7 of SEPP 55 has been addressed.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the development. I am satisfied that the design quality principles (Sch 1 of SEPP 65) have been taken into consideration, along with the Apartment Design Guide (ADG) in the design of the development. I have reviewed the comments of the Design Review Panel contained in Exhibit 7. Further, the Applicant has filed a Design Verification Statement in accordance with the requirements of cll 50(1AB) and 50(1A) of the EP&A Regulation. In their oral evidence the planning and urban design experts raised no concerns that the development application, as amended does not satisfy the provision of either SEPP 65 or the ADG. Despite the achievement of the required 70% of apartments receiving two hours sunlight, Mr Geoprakis remains concerned with the solar amenity to apartment 1.09 and the units in this configuration on the remaining floors (16 units in total). By reference to the solar analysis provided, these apartments receive the two hours sunlight required: Design Criteria 1, 4A ADG. Further, I accept the oral evidence of Mr Dixon that the reduction in solar compliance by 1% is an appropriate offset to the improvement in privacy relationships between the apartments achieved in the amended plans. I am satisfied that the requirements of SEPP 65 have been met.
The subject works have the potential to infer with ground water due to the depth of proposed excavation. The development application was referred to the NSW Natural Resources Regulator who confirmed by letter of 21 October 2020 that for the purposes of the Water Management Act 2000 a controlled activity approval is not required for the proposed works (Exhibit 7).
The proposed development is development that is within 5m of an exposed overhead electricity power: cl 45(1)(b) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). The development application is also subject to cl 86 of SEPP Infrastructure. Clause 86 addresses excavation adjacent to rail corridors and is trigged by the proposed excavation. Pursuant to cl 86(4), a consent authority must not grant consent to development to which this clause applies without the concurrence of the rail authority. As required by SEPP Infrastructure the development application was referred to Sydney Trains who, via Instruments of Delegation, have been delegated to act as the rail authority for the Inner West and Western Lines heavy rail corridor, including infrastructure. By letter dated 21 September 2021, Sydney Trains provide their concurrence to the development application subject to conditions (Exhibit 8). Those conditions are incorporated in the annexed conditions of consent. The requirements of SEPP Infrastructure are met.
An updated BASIX Certificate has been provided to support the amended development application; this satisfies the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
The site is zoned R4 High Density Residential and SP2 Infrastructure under LEP 2013. The objectives of the zone are a matter for consideration in the determination of the development application. The applicable zone objectives are reproduced below: Zone R4 High Density Residential 1 Objectives of zone • 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. Zone SP2 Infrastructure 1 Objectives of zone • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. • To ensure that works are compatible with and protect the biodiversity values of the natural environment.
Development for the purpose of residential flat buildings is a permitted use in the R4 High Density Residential zone. The ground floor retail use is permissible pursuant to cl 19 of Sch 1- Additional Permitted Uses in LEP 2013. The parties agree and I accept that the development application does not propose any works to lot 26 DP 1059142, zoned SP2 Infrastructure for the purpose of residential flat buildings.
Clause 4.3 Height of Buildings in LEP 2013 and the Height of Buildings Map designate maximum building heights of 35m to the northern section of the subject site and 59m to the southern section.
The proposed development does not exceed these maximum height controls.
Pursuant to cl 5.1 of LEP 2013, Canada Bay Council is the relevant acquisition authority for the land zoned SP2 Infrastructure. The development application does not propose this portion of the subject site to be dedicated to council, however the extent of the site for which development is proposed excludes the land that is required to form a new local road in accordance with clause 4.3 of the site-specific Triangle DCP 2014.
The proposed development includes significant earthworks, as such cl 6.2 Earthworks applies. In granting consent, I have considered the matters in subcl (3) and have formed a view that they do not warrant the refusal of the development application.
Pursuant to cl 6.11 Mix of dwelling sizes in residential flat buildings and mixed use development, I must be satisfied, prior to the grant of consent, that: (a) at least 20% of the dwellings, to the nearest whole number of dwellings, in the development will be studio or 1 bedroom dwellings, and (b) at least 20% of the dwellings, to the nearest whole number of dwellings, in the development will have at least 3 bedrooms.
The amended development application contains 27.4% of 1 bedroom dwellings and 20.4% 3 bedroom dwellings (Exhibit K). I find that the precondition at cl 6.11(4) of LEP 2013 is satisfied.
The Triangle DCP 2014 notes that Part C of DCP 2013 applies: section 1.6 of Triangle DCP 2014. The Flood Controls at C7.5 of DCP 2013 are relevant to the issues in dispute between the parties. The relevant objectives of these controls are: "… O2. To manage flood liable land in manner that is economically and environmentally sustainable and socially responsible O3. To establish whether or not a proposed development or activity is appropriate to be carried out having regard to the economic, property, environmental and human impacts of flooding. O4. To protect community by ensuring that developments with high sensitivity to flood risk (eg. critical public utilities) are sited and designed to provide reliable access, continued operability during emergencies, quick recovery and to generally minimise risk from flooding. O5. To allow development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls and provided that the potential consequences that could still arise from flooding remain acceptable … O12. To minimise the risk to life and property arising from flooding."
Section C7.5 includes the following relevant 'Design Principle': "D16. Council strongly discourages basement car parks on properties within the floodplain. Where site conditions require a basement car park on a property within the floodplain, development applications must provide a detailed hydraulic flood study and design demonstrating that the proposed basement car park has been protected from all flooding up to and including the PMF event. An adequate emergency response and evacuation plan must also be provided where basement car parks are proposed in the floodplain."
DCP 2013 provides, at Table C-K, a Flood Planning Matrix which determines which of the development controls within the section apply to the development. By reference to the table, for medium risk flooding and a residential or commercial use, the relevant controls in Section C7.5 of DCP 2013 are: "Floor Level … C2: Habitable floor levels to be equal to or greater than the 100 year ARI flood level plus freeboard. … C5: A restriction is to be placed on the title of the land, pursuant to S.88B of the Conveyancing Act, where the lowest habitable floor area is elevated more than 1.5m above finished ground level, confirming that the subfloor space is not to be enclosed. Building Component C1: All structures to have flood compatible building components below the 100 year ARI flood level plus freeboard. … Structural Soundness C1: An Engineer's report is required to certify that the structure can withstand the forces of floodwater, debris and buoyancy up to and including a 100 year ARI flood level plus freeboard … Flood Affectation C1: An Engineer's report is required to demonstrate how and certify that the development will not increase flood affectation elsewhere, having regard to: a) loss of flood storage; b) changes in flood levels, flows and velocities caused by alterations to flood flows; and c) the cumulate impact of multiple potential developments in the vicinity. … Carparking and Driveway Access C1: The minimum surface level of open parking spaces or carports shall be as high as practical, but no lower than 0.1m below the 100 year ARI flood level. In the case of garages, the minimum surface level shall be as high as practical, but no lower than the 100 year ARI flood level. … C3: Garages capable of accommodating more than 3 motor vehicles on land zoned for urban purposes, or enclosed car parking, must be protected from inundation by floods equal to or greater than the 100 year ARI flood. Ramp levels to be no lower than 0.5m above the 100 year ARI flood level. … C5: The level of the driveway providing access between the road and parking spaces shall be no lower than 0.2m below the 100 year ARI flood level. C6: Enclosed car parking and car parking areas accommodating more than 3 vehicles, with a floor below the 100 year ARI flood level, shall have adequate warning systems, signage, exits and evacuation routes. C7: Restraints or vehicle barriers to be provided to prevent floating vehicles leaving a site during a 100 year ARI flood. C8: Enclosed underground car parks shall have all potential water entry points protected from the PMF. The intent of this requirement is to mitigate the creation of life threatening circumstances and very high economic loss such as may occur with the complete inundation of an underground car park. Council may consider relaxation of this requirement if it can be shown by modelling that the catchment characteristics are such that the maximum depth of inundation is less than 300mm. Because of the particular catchment characteristics of the Concord West Precinct, an additional requirement within that precinct is for habitable floor levels to be at a minimum of RL 3.0m AHD. Refer to sections 9.3.3, 9.3.6, and 10.2.3 of the CWFS. Evacuation … C3: Reliable access for pedestrians and vehicles is required from the site to an area of refuge above the PMF level, either on site (eg. second storey) or off site C4: Applicant is to demonstrate the development is consistent with any relevant flood evacuation strategy or similar plan. … C6: Adequate flood warning is available to allow safe and orderly evacuation without increased reliance upon SES or other authorised emergency services personnel. Management and Design … C2: Site Emergency Response Flood Plan required where the site is affected by the 100 year ARI flood level (except for single dwelling-houses) C3: Applicant is to demonstrate that area is available to store goods above the 100 year flood level plus freeboard. C4: No storage of materials below the 100 year ARI flood level."
The Triangle DCP 2014 at section 1.9 Public Domain plan provides the following summary of proposed improvements to the public domain: "• Widening of the northern part of Cooper Street to accommodate new footpaths and cycle ways. • Realignment of the southern part of Cooper Street. • Inclusion of a pedestrian link between Hilts Road and Leicester Avenue. • New rear laneway access for properties fronting Leicester Avenue. • Closure of Bakers Lane to vehicular traffic and incorporate into new park. • Closure of a section of Chapman Street and incorporation into development site. • Creation of a public park."
The Triangle DCP 2014 notes that these works will be implemented and created through a mixture of the following: "• Dedication of land by developers. • Development Contributions. • Disposal of Chapman Street. • Formal closure of Bakers Lane and southern section of Cooper Street. • Acquisition of private land by Council."
The overall objectives of the Triangle DCP 2014 are detailed at section 2.2. The following of those objectives are relevant to the issues in contention: "- Develop the Triangle with a compatible mix of retail and residential development which capitalises on its proximity to Strathfield rail station, Strathfield town centre and the Bakehouse Quarter. … - Ensure that building types respond to site conditions, with the tallest buildings addressing the widest spaces along the railway line and Parramatta Road to create a strong urban edge and to act as an acoustic and visual buffer. … - Protect and enhance the amenity of public and private open space. … Improve vehicle access around the Triangle with road widening and the realignment of Cooper Street."
Section 3 of the Triangle DCP 2014 provides principles in relation to urban form including design principles in relation to height. The objectives and controls are extracted below: "Aims A.1 To ensure pedestrian scale street profiles; A.2 To visually mark important entry / exit points in the Triangle; A.3 To ensure that there is no significant loss of amenity to adjacent buildings, streets or urban spaces; and A.4 To provide an acoustic and visual buffer to Parramatta Road and the railway corridor. Controls C.1 Maximum building heights are to not to exceed those shown by Map 2- Maximum Building Heights; C.2 Buildings in the centre of the precinct are to be predominantly five storeys; and C.3 Tall buildings are to be setback above certain heights to maintain a consistent street scale and ameliorate building mass."
The applicable heights in the Triangle DCP 2014 are provided in storeys in Map 2 (as opposed to metres in LEP 2013), the extract relevant to the subject site is reproduced below: Extract of Map 2, Triangle DCP 2014
The interpretation of section 3.5: Setbacks of the Triangle DCP 2014 is contested by the parties. The sections of the contested controls are reproduced below in their entirety: "Aims A.1 Front setbacks in this DCP aim to: - reinforce the street profile with consistent build-to lines; and - provide opportunities for planting and other landscape elements. A.2 Side and rear setbacks are to consider building amenity, privacy, access, solar access and open space areas. Controls Front (street) setbacks C.1 Minimum building setbacks are to be provided in accordance with those shown in Map 3- Minimum Street Setbacks. C.2 No building structures should be provided in the setback area, including stairs, ramps and planter boxes at footpath level. C.3 Building setbacks shown on Map 3 are measured from the new boundary following road widening. Rear/side setbacks C.4 The minimum building separation is controlled by the required provision of deep soil zones, and solar access controls contained in Part 5 of this DCP. C.5 The southern end of Cooper Street will be closed. There is opportunity to formally close this section of Cooper Street and incorporate the land into the adjacent development site. In circumstances where this occurs, the required 4 metre setback may be reduced to nil. …"
The relevant section of Map 3, referred to in Control C1 is extracted below: Extract of Map 2, Triangle DCP 2014
Section 4.3 of the Triangle DCP 2014 contains 'Street Principles' for Cooper Street, including a statement of the following road improvements: "The southern portion of Cooper Street (south of the new road alignment) will be closed to traffic and may form part of the adjoining development site." Section 4.3 includes indicative street cross sections. The Applicant relies on Section J, reproduced below:
The subject site includes a corner building at the intersection of the old Cooper Street and Leicester Avenue. This corner is specifically identified in section 5.2.2 Corner Buildings of the Triangle DCP 2014 is relevant. The relevant provisions are: "Aims A.1 To ensure that corner buildings reinforce the street pattern as visual 'markers' at the ends of each block; A.2 To respond to and address the different characteristics of the streets; A.3 To encourage high quality and innovative design for corner buildings; and A.4 To enhance the legibility of key corner locations within the Triangle through the use of unique and recognisable building designs. Controls C.1 Buildings are to align with and reflect the physical characteristics of each street by: -- Accentuation of the topography; and -- Reinforcing the scale and spatial relationships between elements of each corner site. C.2 Corner buildings are to reflect the architecture, hierarchy and characteristics of the streets they address. C.3 Upper level setbacks may be increased to accentuate key corners, increase articulation and add more interest to corner building design."
The Triangle DCP 2014 provides site-specific controls for waste minimisation, storage and removal. The following provisions are relevant to the issues in dispute between the parties: "Controls for Multi-unit residential development C.9 In multi-unit residential development containing 20 or more dwellings a bulk garbage and recycling collection service is required. Council supplies 660 ltr bulk recycling and garbage bins. Provision must be made for waste collection vehicles to enter and service all bins on site. Bins cannot be presented on the pedestrian footway for servicing. C.10 Garbage chutes are required for all buildings more than 3 storeys in height. All garbage chutes are required to discharge into a compaction unit. Compaction units shall not compact above the ratio of 2:1. Consideration should be given to a chute system that is able to be adapted in the future or space allocated for an additional chute system to be installed, to accept recyclables. It is anticipated that future improvements in resource recovery technologies will allow recyclables to be recovered via a chute system. C.11 Garbage chute outlets must discharge into the central waste and recycling room. The building caretaker should not be required to transfer waste from one side of the building to the other in order to get it from the chute outlet to the waste and recycling room. All transferring of waste from the central waste and recycling room to the collection point must occur underground. … Centralised garbage and recycling room C.16 A centralised waste and recycling room must be provided in an area that is accessible to the users and easy for servicing. The waste and recycling room must be located within the underground carpark or basement. The clearance to the garbage room must be no less than 3.8 m high to allow waste collection vehicles to service bins on site. Waste collection vehicles must move in a forward direction at all times. Where it is not possible to provide this level of access for waste collection vehicles, an alternate area will be required for bin servicing and/or storage. The alternate area must be located on the property boundary line, have a layback of suitable size and be constructed to accommodate collection vehicles. For OH & S reasons access to the alternate servicing/storage room for servicing shall be from the layback to ensure bins are serviced with minimal handling."

[6]

Flooding

The flooding experts agree that the applicable 1%AEP flood level is RL 11.70 AHD. They disagree whether the floor level of the ground floor waste room and waste collection room is required to have 500mm of freeboard above the flood level.
Mr Chow argues that the effect of controls C4 & C5 of Section C7.5 of DCP 2013 is that the proposed retail, substation kiosk, switch room, ground floor waste room and waste collection room should be designed above the flood level, plus freeboard (Exhibit 5).
In his oral evidence Mr Chow conceded that a freeboard of 300mm would be acceptable for the service areas, in other words an RL of 12.00AHD, excepting the retail space which should be set at RL 12.20 AHD (maintaining the 500mm freeboard). The applicant's amended plans have raised the proposed substation kiosk, switch room to RL 12.00. Therefore, the remaining areas of dispute are:

the extent of freeboard required above RL 11.70 AHD for the waste room, or alternatively whether the flooding risk is mitigated by the installation of a flood door.
the appropriate quantum of freeboard above RL 11.70 AHD applicable to the retail space.

Both of the flooding experts agree that the amendment to the proposed development could be accommodated by the imposition of conditions on the development consent establishing the required finished floor level of these areas. Mr Pickles confirms that the floor level required by the Respondent can be feasibly achieved, but for the reasons provided at par 50 he argues that to do so is not required by the planning controls and will not result in the best outcome.
In his evidence Mr Chow argues that waste contained in both the waste room and the waste collection room fall within the definition of 'materials' and therefore the control at C4 of Section C7.5 of DCP 2014 applies, namely: "No storage of materials below the 100 year ARI flood event."
Mr Chow's agreed in the joint expert report (Exhibit 5) in his oral evidence that the applicable flood level is RL 11.70. The amended development application, with a floor level of RL 11.25 to both the waste room and the waste collection room is therefore a variation to DCP 2014 as the control at C4 of Section C7.5 of DCP 2014 is not met. Mr Chow argues that such a variation should not be granted for the following reasons: 1. That the waste room and the waste collection room will rely on the operation of the flood door to remain flood free in a storm event. 2. Given residents will have access to the waste room it is not guaranteed that the flood door will be closed, thereby making the room accessible to flood waters. 3. That the bins and their contents will be a hazard when a storm occurs with the potential to damage structures, create blockage for flood waters and pollution.
In the alternative, Mr Haddad argues that the proposed floor levels of RL 11.25 AHD for both the waste room and the waste collection room is acceptable for the following reasons: 1. The development application includes the installation of flood gates on both the waste room and the waste collection room (Exhibit H). Further, the flood waters in the vicinity of the waste room are modelled to be at the lowest velocity meaning that even if the flood doors were open, the impact of any flood waters on the bin room or the collection room would be minor. 2. Such gates could be operated with an automatic closer, ensuring that they are effective in times of flood. Further, flood sensors could be placed in the walls adjacent to the vehicular driveway at RL 11.25 to trigger the flood gates. 3. Given the above, the bins will not be a hazard outside the development as they will be contained within the bin room. Further, given the depth of flood water is modelled to be 450mm and moving at a very low velocity it is unlikely to result in the bins overturning and the spilling of rubbish. 4. That the setting of the floor level for both the waste room and the waste collection room should be considered in the context of risk and probability. Mr Haddad argues that in his assessment the risk is low, any damage arising from a flood event would be contained within the waste room and the waste collection room. Further, given his reasoning at (2) and (3)above there is unlikely to be any egress of waste material from the either the waste room or the waste collection room.
Mr Chow argues that the retail space falls within the definition of a habitable space and is therefore required to comply with C2 of Section C7.5 of DCP 2013: "Habitable floor levels are to be equal to or greater than the 100 ARI flood level plus freeboard." To comply with this development control, the floor level of the retail space would be required to be raised from RL 12.00 to RL 12.20.
Mr Haddad disagrees that such a floor level is required for the retail space arguing that retail is low risk and that the provision of 300mm is adequate freeboard. Further, he reasons that the desire for further freeboard needs to be balanced against the need for street activation. In the circumstances, Mr Haddad argues that the provisions of C4 should be applied namely: "C4: Floor levels to be equal to or greater than the 100 year ARI flood level plus freeboard. Where this is not practical due to compatibility with the height of adjacent buildings, or compatibility with the floor level of existing buildings, or the need for access for persons with disabilities, a lower floor level may be considered. In these circumstances, the floor level is to be as high as practical, and, when undertaking alternations or additions, no lower than the existing floor level."

[7]

Submissions

Mr Pickles primary submission is that the controls in Section C7.5 of DCP 2013 relied on by Mr Chow, C2, C4 and C5 do not apply in the circumstances. In summary Mr Pickles submits:

That control C2 is achieved by the floor level of all of the residential spaces, including circulation being RL 12.35, representing the flood level with a freeboard of 500mm.
That control C2 does not apply to the retail space as it is not 'habitable' space. Mr Pickles argues that a reference to habitable space is not a reference to retail or commercial space.
That the Council has accepted the use of a flood gate to protect the basement (including resident storage) which represents a greater risk to inundation and economic loss yet is resisting the same approach to the protection of the waste room and the waste collection room.
That the reference in C4 to 'materials' should not be interpreted as meaning a reference to garbage. Rather, it should be considered in the context of the whole of the controls as a cascading of requirements. For example, C3 requires the storage of goods (implies value) at the flood level plus freeboard, whereas C4 requires that no 'materials' are stored below the flood level.
Mr Pickles argues this approach to the application of the controls in Section C7.5 of DCP 2013 is reinforced when they are read in conjunction with the Triangle DCP 2014 requirements for the garbage collection room to be centralised, the servicing to occur on site and be located at ground level.

Further, Mr Pickles submits that the Court should adopt and prefer Mr Haddad's approach to the controls and the flooding risk.
Finally, Mr Pickles notes that as a secondary position the Applicant's architect has confirmed that RL 12.20 can be achieved for each of the retail space, the waste room and the waste collection room. However, this is not the Applicant's preferred position for the following reasons:

It would represent a more onerous standard than that which is required by the planning controls.
On Mr Haddad's evidence the risk of flooding is low and able to be mitigated with the provision of a flood door and sensors.
An increase in floor level at the ground floor will reduce ease of access to the retail space from Leicester Avenue and result in a longer ramp.
To accommodate the increase in floor level to the waste room and the waste collection room it would be necessary for the retail provision to be reduced to allow room for internal ramp access.

In the alternative, Mr Cottom argues that the following condition should be imposed by the Court reflecting Mr Chow's evidence: "Bins storage area within the waste collection and waste room on the ground floor shall be set at RL 11.7m AHD minimum."
Mr Cottom submits that there is a clear distinction in the controls in Section C7.5 of DCP 2013 between what is required for basement parking and for waste rooms. He argues that the Design Principle D16 clearly notes that basement carparks are strongly discouraged in the flood plain and the emphasis therefore in the controls is on protection. He emphasises that the control at C8, which addresses underground carparks, requires protection from the probable maximum flood (PMF), a higher requirement that protection from the 1%AEP flood level. Mr Cottom confirms that the Respondent is satisfied that the amended development application meets the requirements of C8 of Section C7.5 of DCP 2013.
However, Mr Cottom maintains that the amended development application does not meet the DCP 2013 requirements. He submits that waste stored within the waste room and the waste collection room fall within the definition of 'materials' in C4 and are therefore required to be stored at RL 11.7 as opposed to RL 11.25 as shown in the amended architectural plans for which consent is sought. Further, Mr Cottom argues that the Court should accept the evidence of Mr Chow about the impacts of the 450mm inundation of the waste room, the risk of the flood doors being open or not operating in times of flood and the impact of debris. Mr Cotton submits that the Respondent's condition should be imposed requiring the raising of the floor levels to reflect the flooding evidence of Mr Chow.

[8]

Findings

Having considered the planning controls, the evidence and the submissions made by the parties, I accept and prefer the evidence of Mr Haddad summarised at [47] and [49] that the appropriate floor level for the waste room and the waste collection room is RL 11.25. My reasoning is as follows: 1. I do not accept that a reasonable interpretation of the controls is that waste falls either into 'property' or 'materials'. In my view neither C2, C5 or C4 of Section C7.5 of DCP 2013 apply. Waste materials are by their definition those items or products that are unwanted and are being disposed of. Such goods, in my view, are not required to be protected from damage from flood waters. Further, neither room is appropriately classified as 'habitable'. No variation of the controls in Section C7.5 of DCP 2013 is required for the amended development application. 2. I accept that with the addition of flood sensors and self-closing doors, both required by condition of consent, the flood door is an appropriate response to the risk and hazard that may arise from these rooms having a floor level below the 1%AEP flood level of RL 11.70. 3. I am satisfied, with the additional conditions in (2) the development application as amended is an appropriate response to the risk of damage or pollution arising from the waste collection room or the waste room experiencing flooding.
In relation to the appropriate floor level for the retail space, I accept the unrebutted submission of Mr Pickles that the retail space does not fall within the scope of control C2 as the retail space as it is not 'habitable' space. I accept however that the risk of flooding remains, irrespective of its classification. The architectural plans delineate a floor level of RL 12.00 for the retail space, providing some 300mm of freeboard above the agreed 1%AEP flood level. With the inclusion of a requirement for the flood sensors required for the floor doors to also to activate a warning light within the retail space I am satisfied this floor level is appropriate. My reasoning is as follows: 1. I am not persuaded by the evidence of Mr Chow that control C2 of Section C7.5 of DCP 2013 applies on the basis that the retail space is defined as habitable space. In my view retail space is transitory space with people unlikely to occupy such a space for any substantial duration of time, in contrast to for example, internal rooms in a dwelling. 2. Being on the ground floor the space provides clear visual connection with the outside ensuring awareness of the occupants to inclement weather. 3. I accept and adopt the reasoning of Mr Haddad at [49] that the provision of 300mm freeboard is an appropriate response to the flood risk. 4. I am satisfied the development application as amended is an appropriate response to the risk of flooding.
I find that the Respondent's contention is not made out on the evidence and that the development application does not warrant refusal on the basis of flood risk.

[9]

Building Height

The Respondent contends that the proposed architectural design provides insufficient height at the Southern most corner of the subject site. In brief, they seek an increase in height to 18 storeys for the component of the design identified below: Extract of Site Analysis Plan Exhibit K
The planning experts agree that, given the development standard at cl 4.3 of LEP 2013 is expressed as a maximum, the development application is compliant with the standard of 59m (Exhibit 6). As noted at [33] the Triangle DCP 2014 contains a height standard of 18 storeys, it is this control that the Respondent argues is varied by the development application.
In their joint expert report Mr Chambers argues that firstly, there is no requirement in LEP 2013 or the Triangle DCP 2014 for a development to achieve a maximum height. Secondly, that the proposed development meets the intent of the control and finally, that the resolution of the architectural design is an appropriate outcome. His reasoning is as follows: "c) In relation to the issue of height, the proposal is part 17 storeys, but mostly 18 storeys where the height map in the CBLEP [LEP 2013] and the height map in STDCP [the Triangle DCP 2014] allows/ shows 18 storeys. The proposal's height is compliant with the statutory height limits in the CBLEP. No Clause 4.6 variation request is required. In my opinion, it cannot be reasonably said, as a criticism of the proposal, that because the southernmost element of the building has a height of 17 storeys, and not 18 storeys, it is 'contrary' to the STDCP. d) Nothing in the CBLEP or in the STDCP requires a development to achieve its maximum height in metres or its maximum height in storeys. e) In this regard, the architect's decision to limit the height of the southernmost triangular-shaped section of the building to 17 storeys, so as to accommodate rooftop communal open space, does not conflict with the relevant height provisions in CBLEP or in the STDCP. The proposal achieves the stepping down from south to north by having a building of part 17 but mostly 18 storeys stepping down to 10 storeys consistent with the controls. … g) The Respondent's residue height issue now concerns the height of the 17 storey element not being 18 storeys. In my opinion, this should be given little weight. It would be difficult to discern (from nearby the site) that the higher building is comprised of elements of 18 and 17 storeys, however stepping down from 18 to 10 storeys will be readily evident. The intent of the height controls of stepping from south to north, in my opinion is achieved. h) The rationale for the disposition of heights is so that the height is not uniform, so that communal open space can be provided on the roof of the taller part of the building which is accessible to all residents without needing to breach the height limit for lift and stair access in an enclosed structure and to locate the service core centrally within the taller building." (Exhibit 6)
In his oral evidence Mr Chambers summarised the following benefits of the architectural design:

It allows for the masking of the lift overrun as part of the overall architectural design,
Provides for north facing units at the 18th storey,
The communal open space is provided with accessible access via a lift,
Provides good solar access to the proposed communal open space and access to district views,
Recognises that this section of the building has a smaller footprint than the northern building. The reduced height is therefore proportional.

Mr Dickson agrees with the evidence of Mr Chambers and also argues that the development is compliant with both the development controls and the intent of the Triangle DCP 2014. He states: "… c. There is no requirement under the STDCP for future development on the site to step down within the area envisioned for built form up to 18 storeys in Map 2 of Section 3.0 of the STDCP. Map 2 simply prescribes a maximum building height of 18 storeys to the southern end of the block. The only time a 'stepping down' in building form is required is under Control C.7 of Section 3.3 of the STDCP which states, 'Step heights down in the centre of the Triangle and adjacent to the public park to protect residential and public amenity'. The proposal is consistent with this in that the proposal complies with the maximum number of storeys (18 storeys for the southern side and 10 storeys for the northern side) for the site under Map 2 of the STDCP and does not breach the maximum permissible height limit under the LEP. On this basis, the proposal, in terms of height, is consistent with the desired outcomes of Council. … e. Reduced height to 17 storeys at the southern- most end of the site provides a better definition of the southern built form components, whilst allowing equitable communal roof uses towards the edge of the site. This also manages the core and servicing components centrally in the development to minimise views to such." (Exhibit 6)
In contrast Mr Giaprakas argues that, whilst the amended development application complies with the maximum number of storeys, it could be improved by stepping down the building form from the southern-most part, progressively down towards the north where lower building heights occur. He states: "Given the large building footprint, this will assist in reinforcing the unique pointed corner of the site and provide a more gradual and gentle transition of bulk and scale down towards land north of the site. For example, providing 18 storeys to the southern-most part of the building, with an effective height reduction to the central core element to absorb any lift overrun or rooftop shade canopy, should reduce the overall bulk and scale appearance of the building. This will also provide opportunity to improve resident amenity by relocating the rooftop communal open space away from a direct southern exposure, to the larger and a potentially more interesting space for communal use at the top of the central core element of the building." (Exhibit 6)

[10]

Submissions

Mr Pickles argues that, in their terms, both the maximum height control in LEP 2013 and in the Triangle DCP 2014 are maximums. He submits that the Court should give weight to the terms of the control in evaluating the merits of the development application. He notes that the agreed evidence of the planning and urban design experts is that the proposed development application is compliant with these controls.
Further, he submits that in the circumstances s 4.15(2) of the EPA Act applies. Namely that if an environmental planning instrument (such as LEP 2013) contains non-discretionary development standards and development complies with those standards, firstly the consent authority can no longer take the standard (i.e. the height standard) into further consideration, secondly must not refuse the development application on the grounds of non-compliance and finally not impose conditions that requires a standard more onerous that the standard.
In the alternative, Mr Cottom argues that the terms of s 4.15(2) of the EPA Act applies to 'non discretionary standards' which are defined at s 4.15(6)(b) as: (6) Definitions In this section - … (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.
Mr Cottom submits that the maximum height standard at cl 4.3 of LEP 2013 is not such a standard as opposed to for example the provisions at cl 30(1) in SEPP 65 where at subcl (3)(b) it states that: the design criteria specified in subcl (1) are standards to which s 4.15(2) of the EPA Act applies. Mr Cottom concludes that therefore the provisions of s 4.15(2) of the EPA Act do not apply.
Further, Mr Cottom argues that the Respondent does to seek a more onerous standard than that which is required by the Triangle DCP 2014. Instead Mr Cottom argues that the evidence of Mr Giaprakas is that the design of the proposed development does not progress across the site in a manner that reinforces the important corner. In support of his evidence Mr Cottom relies on the provisions of the Triangle DCP 2014 at section 5.2.2 Corner Buildings, extracted at [38], as well as the fact that the subject site is identified in the chapeau of the controls as an important corner in the Triangle.

[12]

Proposed setback of the southern building to Cooper Street

The proposed development proposes a zero setback to parts of the proposed building on the Cooper Street frontage. The Respondent argues that the proposed development provides insufficient setback to Cooper Street, inconsistent with the requirements of the Triangle DCP 2014 which requires a 4m setback: C5 of section 3.5 Triangle DCP 2014. Further, the Respondent argues that the design does not provide adequate public/private interface, either in the current circumstances whilst Cooper Street is open or in the future scenario following road closure when the public domain is utilised for recreation.
Further, the Respondent argues that if the Court is to consider the merit of varying the required 4m setback, the proposed development does not meet the objectives of the control: s 4.15(3A) (b) of the EPA Act.
In their joint report the planning and urban design experts note their agreement that the sites frontage to Cooper Street is approximately 109m, with the extent of the proposed development set at a zero setback having a length of approximately 27.5m (Exhibit 6). The experts disagree as to the merits of the placement of part of the proposed building on a zero setback.
In his evidence Mr Chambers argues that the design of the development's frontage to Cooper Street is compliant with the controls in the Triangle DCP 2014. His reasoning can be summarised as follows:

That there is no designated setback required by the Triangle DCP 2014 from the existing Cooper Street: Map 3 and Map 4 in Section 3.5.
That control C1 applies, namely that 'Minimum setbacks are to be provided in accordance with those shown on Map 3 - Minimum Street Setbacks'. As no setback is shown for the Cooper Street frontage there is no minimum, therefore a zero setback is compliant.
That the assumed building footprints shown on Map 6 shows building form extending to the site boundary with Cooper Street at a zero setback.
That building to the boundary is an appropriate design response given the current site conditions and those that are envisaged in the Triangle DCP 2014 to the future character.

Mr Chambers concludes that the proposal has an acceptable, satisfactory and appropriate relationship to the Cooper Street (Exhibit 6).
In cross examination Mr Cottom put the three following interpretations of the setback controls to Mr Chambers: 1. That because the existing Cooper Street is not part of the site, control C5 applies which requires a 4m setback. This is the position of the Respondent. 2. That the Triangle DCP 2014 imposes no requirement for setback where Cooper Street does not form part of the proposed development site or is 'silent' on the requirement. 3. That the Triangle DCP 2014 requires a zero setback to Cooper Street, therefore a more onerous setback requirement cannot be required by the consent authority.
It was Mr Chambers evidence that, in his view, none of the proceeding interpretations of the setback controls are correct. He argues that the control at C1 does apply, and by reference to Map 3 there is no marked setback (refer extract at [36]). Therefore, the development is compliant with control C1 in Section 3.5 of the Triangle DCP 2014.
In his oral evidence Mr Chambers outlined the following in support of his assessment:

A zero setback acts to define the street edge and emphasis the corner in a manner that achieves the intent of the Triangle DCP 2014.
The design is an appropriate design response to the edge of the precinct and the majority of the building on this frontage is setback in a manner that allows for landscaping and building articulation.
The Public Domain Plan defines how Cooper Street will be closed and ultimately become a landscaped pedestrian access way. The subject site would then transition from fronting local road to fronting a landscape public space.
That the proposed architectural design needs to be, and is, a suitable design response in the current circumstances, and when the road is closed.
The architectural design is not visually overbearing but is consistent with the built form plan in the Triangle DCP 2014 (Map 6) and the desired future character detailed in LEP 2013, and the provisions of the Triangle DCP 2014. High density residential development is the explicit planning intent of the Council in this locality, an outcome which is delivered by the amended development application.

In the alternative, Mr Giaprakas argues that the proposed development is non complaint with the controls in Section 3.5 of the Triangle DCP 2014 which require a 4m setback. His reasoning is detailed in the joint report as follows: "31. Although not indicated in on any setback diagram, the STDCP is clear with regard to setback requirements along the southern end of Cooper Street and what its spatial relationship should be with regard to the public domain. The STDCP requires a minimum of 4 metre setback along Copper Street south only if the development site does not incorporate the southern section of Cooper Street into the development site, as is the case with this development. Alternatively, a zero setback may be appropriate if the southern section of Cooper Street was incorporated into the development site as it would no longer be in the public domain. A zero setback to a street or any form of public domain is not consistent with any setback control for development within the Strathfield Triangle 32. Council's STDCP setback controls provide flexibility in establishing an appropriate building envelope, density, providing amenity and good public/ private interface. For this proposal, there is a requirement for a minimum setback of 4m along Cooper Street (as clearly stipulated in C.5 in clause 3.5 of the STDCP), as the incentive of a zero setback, afforded in the case of amalgamating the relevant southern section of Cooper Street, is not being taken up by the developer in this instance. It would then follow suit that the Cooper Street side of the site would require street setbacks in order to achieve a consistent urban character and amenity envisaged for the Strathfield Triangle by the STDCP. A zero setback to a street or any form of public domain is not consistent with any STDCP setback controls for development within the Strathfield Triangle. 33. The proposal does not incorporate the land forming the southern-most part of Cooper Street into the development site. It would therefore be reasonable to expect that the southern-most part of Cooper Street will likely remain either a road reserve, be transformed into public open space, or some form of public domain. It would be reasonable to expect that any development in this particular location is designed with appropriate building setbacks in order to achieve good visual amenity, and privacy and security for future residents. There is no apparent site constraint driving the design to include zero boundary setbacks and is therefore considered unreasonable and unnecessary." (Exhibit 6)
In cross examination Mr Giaprakas confirmed that the only reference to a 4m setback is contained in control C5 of Section 3.5 in the Triangle DCP 2014. Further, he agreed that the control in C5 applies if the land containing the current Cooper Street is incorporated into the development site, otherwise he accepted that control C1, and therefore the setbacks designated in Map 6, apply. However, Mr Giaprakas argues that a simpler interpretation of the setback controls applies. He argues that the control at C5 should be read to require a 4m setback to Cooper Street where it is not amalgamated into a development site.

[13]

Submissions

Mr Pickles submits that the proposed development is fully compliant with the controls within the Triangle DCP 2014, including the setback provisions at Section 3.5. His reasoning is as follows: "1) Control C1 identifies the minimum setbacks applicable by reference to Map 3 which is titled 'Minimum Street Setbacks'. 2) Map 3 does not delineate any setback requirements for the boundary of the site with Cooper Street, (refer extract at paragraph [x]) 3) Given (1) and (2) the development is compliant with the controls."
Further, Mr Pickles argues that the provisions of s 4.15(3A) of the EPA Act apply meaning that as the development application meets the setback standard a more onerous standard, such as the 4m required by the Council, cannot be applied.
Mr Pickles argues that the following components of the Triangle DCP 2014 support the correctness of the Applicant's approach and the evidence of Mr Chambers. 1. Map 6 in the Triangle DCP 2014 shows 'assumed building footprints' which are shown at a zero setback to Cooper Street. 2. Section J, a cross section of Copper Street, shows the balconies of new development at a zero setback. 3. Control 3 notes that 'Building setbacks shown on Map 3 are measured from the new boundary following road widening'.
In response to the Respondent's reliance on control C5 of Section 3.5, Mr Pickles argues that this control is not engaged for two reasons. Firstly, Cooper Street is not closed and secondly, that part of Cooper Street does not form part of the development site.
In the alternative, Mr Cottom submits that when the provisions of Section 3.5 of the Triangle DCP 2014 are read in conjunction with the Public Domain Plan and the Contributions Plans produced by the Respondent for the Triangle precinct, it is clear that all of the provisions have been prepared on the basis of the closure of Cooper Street. Mr Cottom submits that the exception to this is the control at C5, which he argues applies in the current circumstances firstly because Cooper Street is not closed, and secondly because Cooper Street has not been incorporated into the development site. On this basis, he argues the Court would prefer the evidence of Mr Giaprakas and conclude that the Triangle DCP 2014 requires a 4m setback.
In relation to the Applicant's reliance on Section J in the Triangle DCP 2014, Mr Cottom accepts that this diagram demonstrates a nil setback. However, he argues that again this opportunity is only available where Cooper Street is closed, which is not the circumstances of the current development application.
In conclusion, Mr Cottom submits that the Court would conclude that in the circumstance of the current application where Cooper Street is not closed and the land is not incorporated into the development site, the setback control that applies is C5, with a requirement for a 4m setback. He argues this interpretation is a plain reading of the controls and the outcome that is logical when the controls are read as a whole.

Leice Pty Ltd v City of Canada Bay Council

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cited By (2)