COMMISSIONER: This is an appeal against the refusal of Development Application No. 16-02942 for the demolition of all existing dwellings and construction of a 5 level residential flat building containing 46 units (comprising 1 x studio unit, 9 x 1 bedroom units, 31 x 2 bedroom units and 2 x 3 bedroom units) over two levels of basement car parking providing 53 car parking spaces for residents and visitors at 11-13 Clifton Street Blacktown (the site).
The council maintains that the application should be refused for the following reasons:
• inadequate setbacks/ building separation,
• inadequate on site car parking,
• inadequate waste collection facilities, and
• poor solar access.
The previously raised issues of height, drainage, waste control and communal open space were not pressed by the council through amended plans, conditions of consent or additional information.
[2]
The site and surrounding area
The site is Lot Y DP 402694 and Lot X DP 402694. It is rectangular in shape with a northern boundary of 36.58 m, an eastern boundary of 45.72 m, a southern boundary of 36 58 m (Clifton Street frontage) and a western boundary of 45.72 m providing a site area of 1671 36 sq m. The site has a cross-fall from west to east of approximately 3.6m and a rearward slope of approximately 2.75m from the street frontage to the rear. Surrounding land falls generally to the north-east.
The site is currently occupied by two single detached dwelling houses. The rear of the site comprises some trees and other vegetation. Land adjoining the site to the immediate north east and west is occupied by dwelling houses. To the south of the site, on the opposite side of Clifton Street is 16 Clifton Street, a parcel of public open space which provides a pedestrian link with open space between Clifton Bruce and Devitt Streets to the western railway line. Also located to the south is 12-14 Clifton Street, a 4 storey residential flat building with basement parking
The surrounding land is predominantly residential, comprising single dwellings and associated garages on the northern side of Clifton Street, with residential flat buildings on the southern side of Clifton Street between Boyd Street and Sunnyholt Road. The general area is undergoing transition from a low density residential area to a high density residential area.
[3]
Relevant planning controls
The site is within Zone R4 High Density under Blacktown Local Environmental Plan 2015 (LEP 2015). The proposed development is permissible with consent in this zone as a "residential flat building". Clause 2.3(2) provides that the Court "must have regard to the objectives for development in a zone when determining a development application". The zone objectives are:
• To provide for the housing needs of the community within a high density residential environment.
• To provide a variety of housing types within a high density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.
• To permit residential flat buildings in locations close to public transport hubs and centres.
Clause 7.7 addresses Design Excellence and cl 7.3(3) states that "Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence". Clause 7.7(4) states that in considering whether the development exhibits design excellence, the consent authority must have regard to the matters in the subsection.
Blacktown Development Control Plan 2015 (DCP 2015) applies. Part A provides an Introduction and General requirements and Pt C provides for Development in the Residential Areas, including residential flat buildings at cl 6.
State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).
[4]
Setbacks and building separation
The evidence
Mr Steven Layman, an architect and town planner, provided evidence for the council and Mr Peter Smith, an architect and urban designer and Mr Neil Kennan, a town planner provided evidence for the applicant.
Front setback
Mr Layman states that the front setback controls in DCP 2015 allow only open style balconies to protrude 1 m into the required 9 m front setback. Roof eaves and sun hoods may project into the front setback by a maximum of 600 mm. The proposed front balconies project 700 mm beyond the allowed 1 m intrusion into the front setback. Also, the central balcony is not open style and all balconies are fully roofed. The balconies could be set back 8m from the street and achieve the required size and depth by extending into the apartment footprint away from the street. This would ensure the "continuity in landscape treatment and visual buffering from the public domain" sought by the controls. Mr Layman states there is no reason why the proposal cannot comply with the front setback control.
Mr Smith and Mr Kennan are of the opinion that the projection of the balconies between 1 m and 1.7 m is consistent with the intention cl 6.6 of DCP 2015 in that it provides "continuity in landscape treatment and visual buffering from the public domain", and provides "adequate front setbacks to facilitate driveway ramps to basement car parking areas at the correct gradients". The projecting balconies do not impact on either the landscape treatment or the driveway ramps and are therefore not contrary to the intention of the clause.
Mr Smith and Mr Kennan further state that the balconies provide depth and articulation to the facade and provide a well-balanced presentation to the street. Pushing the balconies back 700 mm into the building does not provide a superior outcome and reduces the articulation of front facade. Also, increasing the setback by 700 mm would not allow landscaping different to what is proposed.
Mr Smith and Mr Kennan also note that recent development at 26 Clifton Street includes a five storey residential flat building has a setback that is less than 9m with balconies approximately 7m from the street boundary. Similarly, development on the corner of Wallace and Clifton Street also has a setback less than the 9 m required.
The proposed setback is therefore consistent with cl 6.6.1 of DCP 2015 in that it provides a consistent urban character, and allows for landscaping around the perimeter of the site.
Side setbacks/building separation
Mr Layman states that Pt 2F Building Separation of the ADG provides for minimum separation distances for buildings. The DCP 2015 separation controls are consistent with the ADG up to 4 storeys. In Mr Layman's opinion, DCP 2015 only anticipates 3-4 storey residential flat buildings (see Figure 6.2). Clause 6.1 of Pt C of DCP 2015 provides:
In assessing applications for residential flat buildings 3 storeys or greater, Council will have regard to those standards in the RFDC which are not covered by this Part of the DCP.
On that interpretation, buildings of 5 to 6 storeys are subject to the standards in the RFDC (Residential Flat Design Code) although the RFDC has been superseded by the ADG at the time of the hearing. Mr Layman states that the standards in the RFDC are generally the same as those in the ADG. On this basis, the top 3 levels on the eastern side and the 2 top level of the western side of the proposal should have a side setback of 9 m to allow 18 m separation from habitable rooms/balconies on adjoining future development. The Objectives of the Building Separation Controls in the RFDC are:
• To ensure that new development is scaled to support the desired area character with appropriate massing and spaces between buildings.
• To provide visual and acoustic privacy for existing and new residents.
• To control overshadowing of adjacent properties and private or shared open space.
• To allow for the provision of open space with appropriate size and proportion for recreational activities for building occupants.
• To provide deep soil zones for stormwater management and tree planting, where contextual and site conditions allow,
Mr Layman concludes that setbacks do not achieve appropriate massing and spaces between it and future development and does not appropriately control overshadowing of adjacent properties.
Mr Smith and Mr Kennan do not interpret cl 6.1 of Part C of DCP 2015 in the manner adopted by Mr Layman that cl 6.1 does not apply to development greater than 3 or 4 storeys. They suggest that if that was the case it would not use the words "3 storeys or greater". Also, other diagrams within DCP 2015 (see Figure 6.3) include buildings of 5 storeys. Further, cl 6A of SEPP 65 provides a list of matters for which a DCP has no effect. Relevantly, cl 6A excludes those matters in Part 2 of the ADG where side setbacks are not included. The effect is that setbacks in DCP 2015 apply.
Mr Smith and Mr Kennan note that Part 2 of the ADG "contains tools to support the strategic planning process" (p 27). It provides guidance to council to assist them with preparing DCP controls. It does not contain objectives of design criteria used in assessment of a development application. The RDFC had the same approach and provided no numerical guidance for setback controls.
DCP 2015 has full effect and SEPP 65 and the ADG do not override DCP 2015 with respect to setbacks. The proposed setbacks are consistent with SEPP 65 and the desired outcomes described in cl 6.6.1 of DCP 2015 in that they:
• provide view corridors from the front to the rear of the site which are landscaped,
• do not impact on basement parking,
• provide a consistent character, and
• manage impacts with respect to privacy, solar access and visual intrusion through the placement of windows and are considered acceptable.
The proposed development provides a fragmented and well-articulated facade to the side boundary setback with recesses providing a setback of 8m, the majority of the building being setback 6m and intrusions that allow for windows to be placed.
The proposed configuration of providing protruding elements that enable windows to be placed that direct views down the side setback rather than towards the adjoining development provides a superior outcome and reduces privacy impact compared to a development that strictly complied with the 6m setback and had windows facing the side boundary .
Rear setback
Mr Layman states that the proposal is non-compliant in rear setback at ground level and Level 1. Balconies project 2 m into the setback on these levels. Consistency with the RFDC/ADG would require eastern side levels 4 and 5 and western side level 5 rear to be setback 9m.
Mr Smith and Mr Kennan agree the rear setback is non-compliant with respect to the intrusion of the balconies by 2 m where DCP 2015 only allows an intrusion of balconies by 1m. As demonstrated by the landscape plan there is sufficient space for quality planting in a deep soil environment to screen the development from adjoining development.
The assessment approach
Clause 6(1) of SEPP 65 states:
6 Relationship with other environmental planning instruments
(1) In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.
Clause 6A of SEPP 65 states:
6A Development control plans cannot be inconsistent with Apartment Design Guide
(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:
(a) visual privacy,
(b) solar and daylight access,
(c) common circulation and spaces,
(d) apartment size and layout,
(e) ceiling heights,
(f) private open space and balconies,
(g) natural ventilation,
(h) storage.
(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.
(3) This clause applies regardless of when the development control plan was made.
The ADG do not provide numerical requirements for street setbacks (ADG, Pt 2G) or side and rear setbacks (ADG, Pt 2H) only qualitative requirements. The ADG does however provide numerical requirements for building separation (ADG, Pt 2F).
Clause 6.1 of DCP 2015 relevantly states:
6.1 State Environmental Planning Policy No. 65 and the Residential Flat Design Code
.
.
In assessing applications for residential flat buildings of 3 storeys or greater, Council will have regard to those standards in the RFDC which are not covered by this Part of the DCP.
Clause 6.6 of DCP 2015 states:
6.6 Setbacks - front, rear and side
Setbacks for the front, rear and sides of a development play an important role in ensuring new development fits in with the local built context. The front setback should be maintained throughout areas zoned for residential flat buildings, to ensure continuity in landscape treatment and visual buffering from the public domain and footpaths beyond the site. A secondary benefit of adequate front setbacks is to facilitate driveway ramps to basement parking areas at the correct gradients. Side setbacks are important in ensuring the maintenance of visual permeability through development sites via landscaped corridors and the avoidance of unbroken walls of housing. Rear setbacks are also important to ensure sufficient separation between sites and buildings for visual and acoustic privacy, and maintenance of solar access.
Clause 6.6.2 of DCP 2015 relevantly states:
6.6.2 Standards
The minimum front setback shall be 9m for 3 or more storey buildings and 7.5m for 1 and 2 storey buildings.
The minimum side and rear setbacks shall be 6m.
The front building setback should generally be in line with the setback characteristic of neighbouring properties, but in cases where there is a clear demarcation between proposed new redevelopment and existing single lot housing with lesser setbacks than the standard, the minimum setbacks as stated above apply
.
.
The only projections which will be permitted in the setback areas are open style balconies, roof eaves and sunhoods. Balconies may project into the setback by a maximum of 1m. Roof eaves and sunhoods may project into the setback by a maximum of 600mm.
DCP 2015 does not provide any specific requirements for building separation on separate sites but provides for a minimum separation of 12 m "Where more than 1 building is to be erected on a development site" (cl 6.8).
Findings
On the matter of the front setback and the encroachment of the balcony by 700mm, I agree with Mr Smith and Mr Kennan. I accept that the balconies, notwithstanding their 700 mm encroachment "ensure continuity in landscape treatment and visual buffering from the public domain and footpaths beyond the site". The building is set back the required 9 m and the indenting of the balconies, their offset location on the front elevation and the different balcony designs provide an interesting presentation to the street.
I do not agree with Mr Layman's comments that the central balcony is not open style and all balconies are fully roofed. In my view, the balconies should be seen as "open style balconies" as only the necessary balustrade encloses the balconies. The central balconies have small wing walls but I do not accept that this would deem these balconies to be anything other than "open style balconies". This needs to be compared to what would be seen as a closed style balcony that would presumably have transparent material above the balustrade. Similarly, I do not accept that the floor of a balcony could reasonably be seen to be a "roof" for the balcony below.
The matter of the side boundary setbacks at the upper levels was a major issue between the experts. Mr Smith and Mr Kennan largely rely on the side setback standard in cl 6.6.2 of DCP 2015 whereas Mr Layman relies on the building separation requirements in the ADG to say the side setback should be half of the building separation requirement. Given the potential inconsistency between DCP 2015 and SEPP 65, cl 6(1) of SEPP 65 does not apply, in this case, as the sub clause applies only to an "environmental planning instrument"; a DCP not being characterised as such.
The evidence suggests two main differences that need to be addressed. First, the inconsistency in DCP 2015 for side setbacks and secondly, the relationship between DCP 2015 and SEPP 65 (and the ADG).
There can be little doubt that there is some tension in DCP 2015 for side setbacks. Under the heading "6.1 State Environmental Planning Policy No. 65 and the Residential Flat Design Code", it states that "in assessing applications for residential flat buildings of 3 storeys or greater, Council will have regard to those standards in the RFDC which are not covered by this Part of the DCP". Under the heading of "6.6.2 Standards", DCP 2015 states unequivocally that the "minimum side and rear setbacks shall be 6 m".
The AGD provides for the numerical separation of buildings over different sites whereas the DCP provides a numerical requirement for a setback from the boundary of the site in question. While both have a broad role in determining the relationship of a development with another development, they do it in different ways. Consequently both requirements need to be considered even though there is some tension between the two requirements. In my view, this tension is properly addressed through the application of cl 6.1 that applies to "residential flat buildings of 3 storeys or greater"and SEPP 65. In this case, SEPP 65 (and the ADG) provides more onerous requirements than the consistent 6 m setback required by cl 6.6.2 although this clause provides for a minimum 6 m setback. There is no inconsistency between cl 6.1 and cl 6.2.2 if the 6 m requirement in the latter subclause is regarded as a minimum and not a maximum.
The evidence of Mr Smith and Mr Kennan that the setbacks in DCP 2015 apply is correct but not at the exclusion of SEPP 65 and the ADG. SEPP 65 applies by way of cl 4(1)(a)(i), (b) and (c); being the erection of a new residential flat building of at least 3 or more storeys and cl 28 requires consideration to be given to the ADG (cl 28(2)(c)) where the requirements for building separation are located..
The ADG at Table 1 (p 35) provides for a building separation distance of 6-12 m up to 4 storeys and 9-18 m for up to 8 storeys. The minimum separation distances relate to the distance between non - habitable rooms and the maximum separation distances between habitable rooms. The ADG also provides for the average distance for separation between habitable and non-habitable rooms. In this case, the appropriate separation distance based on whether the rooms are habitable or non -habitable cannot be determined as both adjoining properties are not developed to the form anticipated by the R4 zone.
The ADG refers to "storey", as distinct from "level" that is used in describing the number of floors in this application. . A reference to say, the second storey in the ADG includes the ground level and is actually Level 1 on the proposed development although it does not alter the requirements in the ADG. The proposed development has 6 storeys of residential accommodation under the ADG.
Based on the ADG, the setbacks for up to 4 storeys generally satisfy the half of the 12 m separation distance with the exception of an encroachment of up to 1 m for the second bedrooms on each storey of both elevations. These encroachments are acceptable given the window treatments that minimise any potential overlooking in the future. Similarly, the small encroachment of the front balcony is minimal and is acceptable.
Storeys 5 and 6 require a separation of 18 m between habitable rooms/balconies under the ADG. The ADG further suggests (at p 36) that "where applying separation to buildings on adjoining sites, apply half the minimum separation distance measured to the boundary". This effectively requires a distance of 9m from the boundary, particularly given the undeveloped state of the adjoining lots and the unknown configuration of any development on these lots; that is, whether the adjoining future development will consist of habitable or non-habitable rooms.
At storeys 5 and 6, the proposed development provides for side setbacks from 5 m and 6m for bedroom walls and 7 m to a balcony edge with similar window treatment to the levels below. Again, I accept that the windows minimise any potential overlooking in the future however the increased setbacks at the upper levels are not only to provide visual privacy. The relevant aim, in the ADG, also seeks to:
assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook,
There can be no doubt that the proposed setbacks at the 5th and 6th storey will limit the sunlight and daylight to the adjoining properties when compared to the setbacks in the AGD. The extent of the additional impact is not able to be assessed because there are no approved developments on the adjoining lots. In my view, it would not be appropriate or reasonable to accept the reduced setbacks on the upper two levels because it could unreasonably impact on the reasonable development of these two adjoining properties. This may not result in the orderly and economic development of these properties and is a sufficient reason to refuse the application.
I am also not satisfied that the rear building setback that includes encroachments of balconies into this setback is acceptable. Unlike the street setback, it is likely that any development at the rear will also have balconies facing the proposed balconies and given the significant encroachment into the rear setback problems with the potential for unacceptable visual and acoustic impacts.
[5]
Car parking
Part 3J of the ADG provides the following objective in relation to car parking:
Car parking is provided based on proximity to public transport in metropolitan Sydney and centres in regional areas
Part 3J of the ADG provides the following relevant design criteria in relation to carparking:
"For development in the following locations:
on sites that are within 800 metres of a railway station or light rail stop in the Sydney Metropolitan Area, or
..
..
The minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating Development, or the car parking requirement prescribed by the relevant council whichever is the less"
According to the Practice Note Car parking requirements in SEPP 65 issued by the Department of Planning & Environment, Blacktown is a strategic centre and is a Metropolitan regional centre (CBD) in the Guide to Traffic Generating Development. The development contains more than 20 dwellings so is considered a high density residential flat building.
If the proposed development satisfies this criteria then the following parking is required:
• 30 residential spaces,
• 7 visitor spaces.
If the proposed development does not satisfy the criteria then the following parking is required:
• 50 residential spaces,
• 19 visitor spaces.
The proposed development contains:
• 43 residential spaces,
• 10 visitor spaces.
It was agreed that the proposed development is 882 m from the entrance to Blacktown Station to the entry of the proposed development as measured on Near Map simulating a person walking on the footpath and using legal road crossings. The proposed development is 665m 'as the crow flies" from Blacktown Station.
Mr Morse states that the ADG is vague by not referring to a radius or walking distance measurement however the site passes the test of being located within an 800m radius of the entrance of Blacktown Station. Regardless of the interpretation of the measurement, Mr Morse is of the opinion that the site is located within proximity (less than 800 m) to public transport services that, while not listed in the ADG (which references only railway stations and light rail) the T-Way provides rapid transport connections linking Parramatta, Rouse Hill, Blacktown and Parklea and achieves similar levels of connectivity and remove reliance on private vehicles and thus achieves the objectives of the ADG.
Mr Layman is of the opinion that the relevant distance to be considered is walking distance as the distance "as the crow flies" is of no real meaning because the test of accessibility is walking distance/time.
While I accept that Part 3J of the ADG is not clear on how the 800 m distance is measured, and Mr Layman's approach that the relevant distance is walking distance has some merit, I have taken some guidance from other parts of the ADG. In Part 1B Local character and context, a number of different scenarios are shown for the appropriate scale for the planning and design process. The "wider scale" (Fig 1B.4) and the "neighbourhood scale"(Fig 1B.5) represent services and facilities that are necessary at that scale. The "wider scale" seeks to "identify the sites proximity to centres, transport and major public open spaces" and relevantly, this is done by way of a radius from the site or "as the crow flies". The "neighbourhood scale" adopts the same approach.
For this reason, I am satisfied that the site is "within 800 metres of a railway station or light rail stop in the Sydney Metropolitan Area" and as such the proposed car parking is acceptable.
[6]
Waste collection facility
Expert evidence on this issue was provided by Mr Phillip Byrum for the council and Mr Morse for the applicant. The main issue related to the ability of garbage trucks to enter the basement carpark to collect the waste because of the available headroom. It would appear that the headroom requirement changed during the progress of the application through council however Mr Morse indicated that it may be possible to drop the floor area around 200 mm to address council's concerns but subject to the provision of detailed drawings to verify that access could be achieved.
[7]
Solar access
Part 4A of the ADG provides the following Design criteria in relation to solar and daylight access:
1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas
2. ..
3. A maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid winter
Mr Smith and Mr Kennan state that a 3-dimensional shadow diagram is provided to assist with the assessment of solar access, and shows a section through the clerestory windows to determine that the solar access reaches the inside of the dwelling. They agree that if the clerestory windows on the top floor are included, 78% of the proposed apartments will receive more than 2 hours solar access at the winter solstice, and no more than 15% of apartments will receive no solar access at the winter solstice.
Mr Layman states that the clerestory details do not show the hours of sun penetration at midwinter and that the assessment of solar access referred to by Mr Smith and Mr Kennan is inadequate to determine solar access in accordance with the ADG. The study should specify which units receive greater than 2 hours, less than 2 hours and which receive no solar access. In particular south-eastern and south-western corner units on Levels to 4 appear not to receive 2 hours solar access at midwinter.
I am not satisfied that this is a matter that would warrant the refusal of the application; although it would likely require further information to support the conclusions of Mr Smith and Mr Kennan.
[8]
S 79B costs
Section 97B states:
97B Costs payable if amended development application filed
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).
(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
(3) The regulations may provide for circumstances in which subsection (2) does not apply.
(4) This section has effect despite the provisions of any other Act or law.
By way of a Notice of Motion on 15 September 2016, the Registrar "granted leave for the Applicant to rely on amended plans and documents annexed to the affidavit of Neil Kennan, dated 8 September 2016".. Mr Seton, for the council, submits that s97B costs should be awarded to the council as the amended plans and documents are not a "minor amendment" (s97B(1)).
Paragraph 9 of the affidavit of Neil Kennan states:
9. The amendments to the plans, referred to at paragraph 8 above, are predominantly as follows:
The rear setback has increased to 6 metres at Level 02 and Level 03.
The rear setback has been increased to 9 metres at Level 04 and level 05.
The basement entry and setback has increased to provide for 2 metres of landscaping.
The height of the basement protrusion in the NE corner has been reduced by 700mm to RL63.
The overall building height has been reduced from RL 81.7 to RL 80.7.
The lift overrun has been reduced from RL 82.5 to RL 81.5.
FSR has been reduced to 2.18:1.
Landscaped communal open space has been enlarged to 24.7%.
Waste collection has been introduced in the basement.
Solar access has been revised.
Cross ventilation has been revised.
Landscaping along the rear boundary has been emphasised for privacy.
The total number of units has been reduced by to 46. The amended mix of units is 1 x studio, 12 x 1, 31 x 2 and 2x3 bedroom apartments.
Car parking has been modified to 52 spaces.
A waste truck turning path and loading dock have been incorporated into the design.
Orders for the payment of costs, in accordance with s 97B(2), must be made if the amendments are not "minor". In Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153, Pepper J provided some guidance on whether amendments can be regarded as "minor" where Her Honour states (at 42):
A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA:
(a) first, the question of what is 'minor' is one of fact and degree {Cachia at [25] and the first Groeneveld at [14]);
(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development {Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);
(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);
(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);
(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);
(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and
(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
If the amendments are considered in light of the principles in Futurespace, I am not satisfied that they are minor. The changes involve many aspects of the proposed development and while considered individually some amendments may be considered minor, while others may not. However collectively the changes are not minor and would likely require a reasonable amount of re-assessment. On this basis, an order for costs under s97B is justified, as agreed or as assessed.
[9]
Orders
The orders of the Court are:
The appeal is dismissed.
Development Application No. 16-02942 for the demolition of existing dwellings and construction of a residential flat building at 11-13 Clifton Street Blacktown is refused.
The exhibits are returned with the exception of exhibits 2 and A.
The applicant is to pay costs under s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.
G Brown
Commissioner of the Court
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Decision last updated: 07 February 2017