COMMISSIONER: Residential development is proposed over basement car parking on a site that runs between Wentworth Road and Oxford Street in Burwood.
To this end, the Applicant in these proceedings, Mackenzie Architects International lodged development application 2022.81 (the DA) with Burwood Council (the Respondent), on 10 October 2022. According to the Amended Statement of Facts and Contentions prepared by the Respondent (Exhibit 1, Tab 3), the DA seeks consent for the following:
Demolition of the existing buildings occupying the site.
Excavation of the site to facilitate the construction of two levels of basement parking for 42 cars, waste and other storage, lift and fire stairs.
Construction of an eight storey residential flat building fronting Wentworth Road and comprising 19 apartments, varying in the number of bedrooms.
Construction of a three-storey, multi dwelling housing development fronting Oxford Street and comprising three townhouses.
Communal open spaces and soft landscaping at both the ground level and at the eighth floor level.
As the DA was not otherwise determined, the Applicant appealed its deemed refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court's jurisdiction, filed with the Court on 28 November 2022.
The proceedings commenced onsite where, in the company of the legal representatives and experts, the Court heard oral submissions from two residents of properties adjoining the subject site. The submissions expressed concern at the height of the proposal, and the impact on views and sunlight due to overshadowing.
The Court was also taken to vantage points in Oxford Street, Hornsey Street and Wentworth Road, and to the rear yard of Townhouse 9 of 13-17 Oxford Street in which the setback and height of the proposal was described.
At the outset of the hearing, the Applicant sought to amend the DA, unopposed, by Notice of Motion filed with the Court on 27 October 2023, comprising the following amended plans and other documents:
Amended architectural plans dated 18 October 2023
Amended Stormwater Management Plan dated 26 October 2023
SEPP 65 Design Verification Statement dated 18 October 2023
Waste Management Plan dated 18 October 2023
Residential Flat Building Studies dated 18 October 2023
BCA Compliance Memorandum dated 3 October 2023
Clause 4.6 Exception Application dated 20 October 2023.
The Respondent, as the relevant consent authority, approved the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), subject to the Applicant paying the Respondent's costs thrown away pursuant to s 8.15(3) of the EPA Act.
It is also relevant to record here that, at the close of the hearing, the Court directed parties to confer on the matter of without prejudice conditions of consent so that an agreed set of conditions was filed no later than 23 November 2023.
The Court also granted the Respondent leave to file written submissions in response to the Applicant's written submissions (AWS) in closing.
On 21 November 2023, the parties complied with the Court's direction and filed agreed conditions of consent.
On 23 November 2023, the Respondent filed written submissions, in response to which the Court directed the Applicant to provide any submissions in reply by 1 December 2023. An extension was granted and submissions in reply were filed 4 December 2023.
[2]
The site and its context
The site is located to the south of the railway line serving the Burwood Train station, between Wentworth Road to the west, and Oxford Street to the east, just north of Hornsey Street.
As the site fronts two streets, the site is otherwise known as both 9-11 Oxford Street and 98-100 Wentworth Road, Burwood.
The site comprises four lots, legally described as follows:
Lot A, B and C in DP 447600, and
Lot 100 in DP 841940
Together, the lots described above result in a site area of 967.1m2, having a frontage to Oxford Street that measures 15.4m, and a frontage to Wentworth Road that measures 30.7m.
Two-to-three storey townhouses occupy the site to the south of the subject site fronting Hornsey Street but which are in fact known as 13-17 Oxford Street. As these townhouses front Hornsey Street, the alignment of the lots is oriented at 90 degrees to the subject site, with the rear façade and private open spaces addressing the subject site to the north.
The townhouse development fronting Hornsey Street also continues northwards onto Oxford Street where two further townhouse properties share the address of 13-17 Oxford Street.
An existing ten-storey residential flat building stands on the site to the north of the subject site, signposted as 'Wentworth Towers' and known by its address of 90-94 Wentworth Road. Relevantly, the site on which Wentworth Towers stands also includes a surface car park, free of structures on the southern portion of the site.
To the east of the subject site, opposite the subject site on Oxford Street stand two attached terraces that are listed for their heritage significance in Sch 5 of the Burwood Local Environmental Plan 2012 (BLEP), and the grounds of Burwood High School.
To the west of the site, across Wentworth Road from the subject site, is a four-storey residential flat building known as 91-93 Wentworth Road, and two-storey residential flat buildings on sites known as 95-99 Wentworth Road, and 101 Wentworth Road.
The site and its immediate surrounds are depicted in the aerial photo that appears on Drawing A0002 of the architectural plans (Exhibit E, Tab 2), re-produced below:
The site is located within the R1 General Residential zone, identified by the BLEP in which residential flat buildings and multi dwelling housing development is permitted by consent where consistent with the objectives of the R1 zone that are:
To provide for the housing needs of the community.
To provide for a variety of housing types and densities.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
It is also relevant to record here that a previous development was granted consent on a portion of the site in 2018 (2018 Consent). At that time, the site comprised three lots of land, excluding the land that is now part of the site at 100 Wentworth Road. The 2018 Consent also varied from the development for which consent is now sought in that it comprised a six-storey built form fronting Wentworth Road, and a two-storey built form fronting Oxford Street.
[3]
The issues are distilled
Notwithstanding the resolution of some particulars, the Amended Statement of Facts and Contentions identifies remaining issues as summarised below:
1. The height of the proposed development is excessive.
2. The site does not have adequate width to accommodate the proposed development.
3. The proposal will not be sufficiently setback from street frontages.
4. The proposal is not adequately setback from side/rear boundaries.
5. The proposal does not provide adequate visual privacy for occupants or neighbours.
6. The proposal will unacceptably increase the overshadowing of neighbouring properties.
7. The proposal will not provide adequate landscaping.
8. The design of the proposal will result in unacceptable bulk and scale and lacks the desired levels of design excellence for a proposal of this scale and prominence in the public domain.
9. The design quality of the development, when evaluated in accordance with the Design Quality Principles within State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), is unsatisfactory.
10. The proposal does not achieve the objectives of circulation and the desired level of access throughout the site.
11. The proposal will not provide adequate safety for occupants of the development.
12. The development is not suitable for the site pursuant to s 4.15(1)(c) of the EPA Act.
While the development the subject of the DA, as amended, is described in more detail at [2], it is helpful to now describe it in broad terms.
The proposal presents two primary building forms. To the west, the development presents a residential flat building fronting Wentworth Road, and to the east, it presents "terrace-scale townhouse development", according to the planning expert for the Applicant, Mr Jeremy Swan, fronting Oxford Street.
While not separately contended, the correct characterisation of the development is disputed. The Respondent has framed its contentions having defined the lower scale development fronting Oxford Street as multi-dwelling housing development.
It is relevant to record here that Mr Swan considers it reasonable to characterise the development as a single residential flat building as, firstly, the two primary forms sit over a common basement, and secondly, because the 'terrace-scale' development occupies more than one lot of land, and so is inconsistent with the definition contained in the Dictionary of the BLEP for 'multi dwelling development'.
Likewise, the Applicant submits that the development enjoys shared facilities such as common waste and bulk waste storage, carparking and bicycles facilities and communal open space.
I also note the characterisation of the development as a residential flat building is consistent with the characterisation of the development in the initiating procedure filed with the Court on the date the appeal was lodged.
Furthermore, Mr Swan relies on Part 1A of the Apartment Design Guide to describe the development as a 'hybrid development' envisaged by the ADG in the following terms:
1. Hybrid developments combine different uses or building types in one development. They can incorporate community facilities and larger commercial or retail components, such as offices or a supermarket.
2. Hybrid developments are particularly relevant for larger sites that need to respond to a change in building form and scale within the adjacent context. This approach is best used when:
1. located on large and/or irregular shaped sites
2. a combination of uses is desired to support active urban areas or centres
3. greater diversity of apartment types is desired
4. a development needs to address two or more streets with different scales and/or characters.
In the particular circumstances of this site, the development seeks to address two streets with different scales and/or characters.
The relevance of the characterisation is twofold. Firstly, if the development is a residential flat building, building separation between the primary building forms on the site is to be derived from Objective 3F-1 of the Apartment Design Guide that depicts, at Figure 3F.2, separation distances between apartments within the same site. If the development is a residential flat building and multi dwelling development, setbacks to the multi dwelling development are derived from section 4.3.2 of the Burwood Development Control Plan (BDCP).
That said, the Applicant's written submissions are that the building separation and setback requirements derived from either the ADG or the BDCP are essentially the same and, while not consistent with the provisions of either, are not a reason for refusal.
While my preliminary view is that the development is properly characterised as a residential flat building, it is necessary to first consider whether the Court's power to grant development consent is enlivened by cl 4.6 of the BLEP, notwithstanding the contravention of the height standard by the development.
[4]
The height of building standard is exceeded
The tower form fronting Wentworth Road exceeds the height of building standard of 26m set out on the relevant map at cl 4.3(2) of the BLEP.
A written request authored by Mr Jeremy Swan of the Planning Hub in accordance with cl 4.6 of the BLEP and dated 24 October 2023 is annexed to the joint expert report of the planning experts (Exhibit 2, Tab C). The written request states the exceedance of the height standard measures 2.68m at its maximum.
A dimension of 2.38m is also stated on p5 of the written request, which may have been transposed in error from an earlier reference in the Statement of Environmental Effects also authored by The Planning Hub (Exhibit A, Tab 3). However, reference to architectural drawing A3005 supports the maximum exceedance being 2.68m.
The maximum exceedance occurs at the uppermost level of the lift overrun servicing the rooftop communal open space. A lesser exceedance is also evident in the enclosure of stairs, amenities and services that form a rooftop pavilion, and planter beds and the balustrade at the rooftop level, and the uppermost covering to the balcony of Unit 702 (extension to Unit 702) that also exceeds the height standard and which is not held by the Applicant to be an architectural roof feature.
The principal reason for the exceedance is said to be a built form response to the flood hazard of the site and the provision of communal open space on the rooftop to provide a high level of residential amenity.
The written request does not further explain the flood hazard of the site, however a document titled "Response to flood level enquiry" contained in the Class 1 Application (Exhibit A, Tab 14) indicates the level of the 1% Annual Exceedance Probability (AEP) to be between 16.70 - 16.90AHD. Once a 300mm freeboard is factored, a Flood Planning Level (FPL) of between 17.00-17.20 AHD applies to the site.
The written request seeks to demonstrate that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case because the objectives of the height standard are achieved notwithstanding the non compliance.
The objectives of the height standard at cl 4.3 of the BLEP are as follows:
(a) to establish the maximum height of buildings to encourage medium density development in specified areas and maintain Burwood's low density character in other areas,
(b) to control the potentially adverse impacts of building height on adjoining areas.
In summary terms, the written request asserts the built form is reflective of the future higher density form envisaged for the area, involves a minimal percentage of building volume, only relates to lift overruns and roof structures, does not result in adverse impacts on surrounding development, and is the result of flood hazard on the site.
In respect of objective (a), the written request asserts the proposal provides a scale and intensity that is consistent with surrounding development, and with development envisaged for the site and surrounding area when the location of the site and zoning are taken into account, and that no aspect of the development inhibits the provision of medium density housing, and nor does it compromise low density development in the area. Instead, the development is designed to best respond to the existing and desired future character of the area when recent development and the site's proximity to the Burwood Town Centre are understood.
In respect of objective (b), the written request asserts:
1. The development has been designed to minimise visual impacts on the surrounding area through the appropriate composition of building elements, materials, textures and colours that reflect the building's commercial and residential character.
2. The external appearance of the building reflects consideration of various development controls, and the articulation of the building and its massing and composition reflects the desired future character of the area.
3. Detailed shadow analysis shows the proposed development does not adversely impact the solar access of adjoining properties. In particular, a solar study undertaken by the Applicant compares the impact of the proposed development the subject of this appeal, with the impact of that imposed by the 2018 Consent.
Next, the written request sets out environmental planning grounds it considers sufficient to justify the contravention of the height standard, pursuant to cl 4.6(3)(b) of the BLEP, summarised as follows:
1. The proposed development is consistent with the objectives of the zone and the objectives of the height standard.
2. The subject site is flood affected and its ground floor levels have been raised to be above the flood planning level.
3. The proposal does not result in any adverse impacts on adjoining properties.
4. The subject site is irregular in shape, having two frontages to Wentworth Road and Oxford Street. The development proposes lower buildings fronting Oxford Street to respond to the heritage items across the road on Oxford Street, and has placed the higher building fronting Wentworth Road with the built form setback from the adjoining town house development and stepping up to the higher building located directly north of the subject site.
5. The height variation is a result of providing rooftop communal open space which has excellent access to sunlight and is a high amenity area resulting in a better outcome for future occupants.
In support of the statement at [47(1)], the written request asserts consistency with the objectives of the R1 zone by virtue of the proposed development providing for the housing needs of the community in a well-designed residential development that reflects the existing and desired future character of the zone, with a range of unit types that positively contribute to the variety of housing types and densities in the R1 zone.
While it was shown in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 that a proposal is not to be regarded as other than orderly simply because there is reliance on cl 4.6 for an appropriate planning outcome, development consent cannot be granted to a proposed development that breaches a development standard unless the Court, in exercising the functions of the consent authority, is satisfied of the matters in cl 4.6 of the BLEP, in the circumstances of this case.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action"), this requires satisfaction that:
The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),
The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),
The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
In RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court of Appeal showed that the Court, in exercising the functions and discretions of the consent authority, must in fact be satisfied of the above matters.
Explaining the means by which the Court may reach the requisite opinion of satisfaction required by cl 4.6(3) in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61, Preston CJ states, at [78]-[79]:
"The consent authority's consideration of the applicant's written request, required under cl 4.6(3), is to evaluate whether the request has demonstrated the achievement of the outcomes that are the matters in cl 4.6(3)(a) and (b). Only if the request does demonstrate the achievement of these outcomes will the request have "adequately addressed the matters required to be demonstrated" by cl 4.6(3), being the requirement in cl 4.6(4)(a)(i) about which the consent authority must be satisfied. The request cannot "adequately" address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate the matters. Again, the requirement is one of outcome, not process.
The upshot is that a consent authority, and the Court on appeal, in order to determine whether the applicant's written request has demonstrated the achievement of the matters (the outcomes) in cl 4.6(3)(a) and (b), might need to form a view about whether the matters have in fact been achieved. Take, for example, the matter in cl 4.6(3)(a). One of the ways in which compliance with the development standard might be shown to be unreasonable or unnecessary in the circumstances of the case is if the development achieves the objectives of the development standard, notwithstanding that the development contravenes the development standard. Demonstrating that the development achieves the objectives of the development standard involves identification of what are the objectives of the development standard and establishing that those objectives are in fact achieved. The applicant's written request will need to demonstrate both of these things: correctly identifying the objectives of the development standard and establishing that the objectives are in fact achieved. The consent authority may not be in a position to be satisfied that the applicant's written request does demonstrate both of these things unless the consent authority forms its own view about these things."
In my view, the written request has not demonstrated the development achieves the objectives of the height standard because it has not established that the objectives at [43] are in fact achieved. In particular, while the objectives of the height standard have been correctly identified by the height request, the impacts that are the subject of objective (b) have not been assessed in a manner that the Court can be satisfied demonstrates that compliance with the objectives of the height standard has been achieved.
In the first instance, and setting aside the incorrect reference by the written request to the development's commercial character at [46(1)], it is unclear in what way the composition of building elements, materials, textures and colours serves to control the potentially adverse visual impact of building height on adjoining areas. A statement on p7 of the written request asserts that "the facades and numerous architectural features provide articulation and interest to the elevations and result in a high-quality built form that contributes positively to the streetscape and emerging built form."
5 Hornsey Street
38 Oxford Street
101 Wentworth Road
104 Wentworth Road
However, for whatever reason, these properties are not included in the 3-dimensional CAD model used to generate both the shadow diagrams and the sun-eye diagrams, that presumably inform the assertions made in the written request. Yet it would appear from the sun-eye diagrams that the composition of elements at the uppermost level of the proposal, including the exceedance, passes over the properties listed at [72].
While not described in the written request, Mr Swan considers public land and those properties at the following addresses to answer the description of 'adjoining areas' cited in objective (b):
5 Hornsey Street
13-17 Hornsey Street
Open playing field and play ground at the adjacent Burwood High school on Oxford Street
95-99 Wentworth Road
101 Wentworth Road
The precise impact, if any, of the composition of elements that exceed the height standard, on those properties listed at [74] is unknown. No evidence of assessment has been demonstrated, and so the written request has not demonstrated that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case because the objectives of the standard are complied with, notwithstanding the exceedance.
In short, given the properties at 5 Hornsey Street and 101 Wentworth Road are not depicted in shadow diagrams, or sun-eye diagrams, the assertion made in the written request that the proposed development does not adversely impact the solar access of adjoining areas is unsupported by reference to either the written request or the architectural plans that presumably inform the assertion made in the written request.
As the objectives of the height standard are not demonstrated to have been achieved, the first environmental planning ground advanced in the written request said to be sufficient to justify the contravention of the height standard, at [47(1)], must also fail.
Likewise, as the written request fails to describe the precise nexus between the exceedance and the FPL, the Court is left to rely on Mr Mackenzie's oral evidence that the effect of the flood behaviour on the land is in the order of 1m. However, in the case of the extension to Unit 702 on the west elevation, said by Drawing A3005 to exceed the height standard by 1.92m, it is unclear what, if any relationship there is between the FPL and the height of the extension to Unit 702 that is otherwise independent of any association with other elements at the rooftop level, but which is depicted in shadow diagrams as casting shadow beyond the site.
The written request also argues, in essence, that height that is otherwise allowable is foregone on the Oxford Street frontage so as to address the heritage properties opposite is displaced to the Wentworth Road frontage. Not unrelatedly, the additional height permits a rooftop communal open space that provides high amenity and a better outcome for residents of the proposed development. Neither of these grounds are, in my view, sufficient environmental planning grounds unless the potential impact of that additional height on adjoining areas has been considered. For reasons already set out above, I find such impacts have not been considered, beyond a mere assertion.
As the written request fails to demonstrate that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, and fails to demonstrate there are sufficient environmental planning grounds to justify the contravening of the height standard, I cannot be satisfied that the written request has adequately addressed those matters required to be demonstrated by cl 4.6(3) of the BLEP.
Furthermore, I cannot be satisfied that the proposed development is in the public interest because the proposal is not consistent with the objectives of the height standard.
Accordingly, the Court's power to grant consent is not enlivened and the appeal also fails.
[5]
Orders
The Court orders that:
1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.
2. The appeal is dismissed.
3. Development consent for development application 2022.81 for demolition of existing structures and construction of an eight storey residential flat building, ancillary landscaping, drainage and site works at 9-11 Oxford Street and 98-100 Wentworth Road, Burwood is refused.
4. All exhibits are returned, except for Exhibits A, E and F, 5 and 6.
[6]
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: 21 December 2023
However, the articulation evident in the northern façade is limited to a 200mm setback approximately half-way along this elevation (no dimensions are provided), and a further setback at the north west corner of the tower. This treatment continues up the full height of the northern elevation, including for the extent of the exceedance above the 26m height. The northern elevation is the most exposed due to its zero setback facing the surface carpark to Wentworth Towers. In response, the proposal is one material, identified on the Sample Board drawing (A3007) as precast concrete, albeit finished in both smooth off-form and a textured pattern, with exposed slab edges at certain intervals. From a position on the Wentworth Road footpath, the 200mm offset would be virtually imperceptible, and the further setback of 3m would be largely, if not wholly, concealed because of the depth of the zero setback in the foreground.
As Ms Castellanos, urban design expert for the Respondent, puts it in Exhibit 7:
"The proposal presents a larger built form, overbearingly large and blank walls visible from the public domain without adequate articulation and it doesn't present a legible roof feature. Therefore the proposal does not adhere to the character intended by the controls." (par 46(d))
A similar statement is also found at par 47:
"The proposed built form will present a planar elevation to the street, two blank elevations to the north and east and a stepped blank wall to the south. If [sic] is approved in its current form, the proposal will be the only building of this scale hard against the 6m front setback with no separation to the common boundary with a neighbouring property."
Relevantly, the majority of the northern elevation is not setback from the boundary as required, whether the ADG or BDCP is consulted. The Applicant argues, in written submissions in closing rather than in the written request, that the visual bulk of the building is not changed merely by meeting the height plane (AWS, par 30). Whether or not this is the case, it is not a position advanced in the written request, and relates to an elevation that cannot be said, by the composition of elements, materials, textures or colours to provide articulation or interest in a manner that controls the adverse visual impacts of a blank wall exceeding 26m in height. The height at which the exceedance occurs is in line with that of the blank wall below it such that the composition of elements, materials, textures and colours are all consistent, without articulation or interest demonstrated in the context of the exceedance.
In the case of the exceedance evident at the north west corner of the proposal, it must be said it is located in the most prominent corner of the site, being the approach from the north across the open area of the surface carpark of 90-94 Wentworth Road. A portion of the exceedance is located within what the Respondent contends is an area of land that should not be built upon, but should instead be an area of pathways and landscaping within a setback.
Ms Castellanos' evidence is that side setbacks for residential flat buildings of between 2m-5m are set out at section 4.1.2.1 of the BDCP (Provision P3) and that even a 2m setback would make a difference to the visual impact of the built form in this location.
However, if the provisions of Objective 3F-1 of the ADG are adopted as a reference, a setback in the order of 4.5m would apply for those levels between 5-8 storeys, according to design criteria 1 for non-habitable rooms or, in this case, where no openings are provided that would result in a breach of visual privacy.
The exceedance therefore may be said to be that composition of elements above the height standard of 26m, including that composition that encroaches within 4.5m of the northern boundary, being the setback required by the ADG, with which compliance is required by the relevant provision in section 4.1.2.1 of the BDCP. As such the exceedance has both a lateral and vertical dimension. A lateral dimension of 4.5m measured from the northern boundary encompasses the perimeter planter beds to the roof top communal open space, and portions of the rooftop pavilion and the vertical extension above Unit 702.
Whether a setback of 2m or more is appropriate to the north, I accept Ms Castellanos' evidence that the existing character is, and the desired future character envisages, buildings with setbacks in which landscaping is provided.
I also accept Ms Castellanos' argument, at par 24 of the joint report (Exhibit 3), that a zero setback to the boundary shared with 90-94 Wentworth Road presupposes a particular future development scenario on the adjoining site, depicted on Drawing A0002.2, re-produced below, that the Respondent submits, if adopted, would result in a continuous wall of development across the two sites, at odds with the desired future character.
Taken together, neither of the broad statements summarised at [46(1)] or [46(2)] are demonstrated by reference to the documents that describe the development.
In the second instance, the written request asserts that the proposed development does not adversely impact the solar access of adjoining properties. The analysis undertaken by the Applicant in the sun eye diagrams contained within the architectural plans is threefold; comparing the existing solar access (drawings A4101-A4107) with that, firstly, of the 2018 Consent (Drawings A4301-A4307) and secondly, with the proposed development (drawings A4201-4207). Neither the sun-eye diagrams, nor any of the shadow diagrams (drawings A4001-A4012) are contained in the written request.
Contrary to the assertion made in the written request, the analysis undertaken by the Applicant clearly shows properties at 13-17 Oxford Street adversely impacted by the proposed development when the existing situation is also understood.
In the joint report (Exhibit 7), Ms Castellanos assesses the impact of the proposal on solar access to the townhouses fronting Hornsey Street, denoted as TH, private open spaces of 13-17 Oxford Street as follows:
TH 01 from 9:00 am - 11:00 am. This is a reduction of 2 hours.
TH 02 from 10:00 am - 2:00 pm. This is a reduction of 4 hours.
TH 03 from 12:00 pm - 3:00 pm. This is a reduction of 3 hours.
TH 04 from 12:00 pm - 3:00 pm. This is a reduction of 3 hours.
TH 05 from 1:00 pm - 3:00 pm. This is a reduction of 2 hours.
TH 06 from 1:00 pm - 3:00 pm. This is a reduction of 2 hours.
Mr Mackenzie acknowledges there is an impact, stating at par 57 of the joint report:
"As detailed by the sun eye diagrams A4101-A4407, it has been demonstrated that the difference between the approved DA and the proposed DA is very minor. The difference between the existing building with the roofing over the outdoor areas of 13-17 Oxford Street can be agreed to reduce solar amenity, but as stated above, that doesn't account for the current approved and active DA."
The Respondent submits, and I agree, that the exercise for the Court in finding whether compliance with the standard at cl 4.3 of the BLEP is unreasonable or unnecessary is not one informed by the 2018 Consent, which is not the subject of this appeal, but instead requires an assessment of the impacts of the proposed development on adjoining areas as they exist today. In this particular case, that assessment is whether the proposal controls the potentially adverse impacts of building height on adjoining areas, notwithstanding the non-compliance with the height standard of 26m.
While I accept the assessment by Ms Castellanos at [68], I note the reduction in solar access to the properties at 13-17 Oxford Street is not as a result of the exceedance of the height standard, but of the built form at lower levels that are within the height standard.
Instead, the sun-eye diagrams suggest the impact of the height exceedance is imposed on properties on the eastern side of Oxford Street, south of Hornsey Street, and on the western side of Wentworth Road. For clarity, these properties are identified on the Site Analysis drawing (A0002.2) as follows: