Mars City Pty Ltd v Burwood Council

Land and Environment Court (NSW)|2020-09-16|Before: Exhibit AM

Judgment

COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Burwood Council (the Respondent) of Development Application No. DA/2019/68 seeking consent for construction of a 20-storey boarding house with three levels of above ground car parking, retention of the existing commercial building, and stratum subdivision at 4 Railway Parade, Burwood (the proposed development).

Evolution of the application

On 9 July 2020, the Court granted the Applicant leave to amend the application and rely upon amended plans and other documents identified in an affidavit as 'Exhibit AM-1' (the affidavit).

Approach to the proceedings

On 29 May 2020, the Court listed the matter for hearing, commencing with an onsite view in accordance with its usual practice.
On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy that set out arrangements in respect of face-to-face attendances in Court and on-site.
The parties sought an onsite view prior to the hearing. The Court granted the request and directed that the onsite view proceed subject to those attending being limited to seven (7) people.
In accordance with the direction of the Court, I attended the site and in the presence of the parties and the experts, I was taken to the Railway Parade frontage, where my attention was drawn to the built form of a number of existing properties and recent developments.
In the company of the parties and experts I walked from Railway Parade to Shaftesbury Road and Belmore Street to view the Elizabeth Street frontage, and the existing car park on the site that is adjacent to properties fronting Shaftesbury Road and Belmore Street.
In this location, my attention was drawn to the location of the existing swimming pool in the communal open space to 65 Shaftesbury Road, and to the street frontage of 1-3 Elizabeth Street.

The site and its context

The site is located at the western edge of the Burwood Town Centre within a large urban block bounded to the north by Railway Parade which runs parallel to the Western Railway Line beyond.
The site is a generally 'L-shaped' allotment legally described as Strata Plan 70949, with a northern frontage to Railway Parade of 26.225m in width, and a western frontage to Elizabeth Street of 16.6m in width.
A five-storey commercial office building currently occupies the majority of the northern portion of the site fronting Railway Parade that sits above a basement and ground floor level car park which extends beyond the building into the rear portion of the site that is accessible from Elizabeth Street at the rear of the site.
The block is characterised by a diverse mix of new and old residential apartment developments, commercial buildings, shop top housing along Burwood Road, the Burwood Court House and Police Station along Belmore Street. Older developments are typically lower in heights ranging from around 2 to 5 storeys, while more recent mixed use developments range from around 6 to 18 storeys.
At this point, it is helpful to state that the site itself is bifurcated by a dividing line that marks a change in controls. Unusually, the dividing line demarcating a change in controls is not on the property boundary, but instead it runs through the middle of the site in a north-south direction.
This line demarcates a change in height and FSR controls according to the BLEP.
Relevantly, it also marks a change in what the Burwood Development Control Plan 2013 (BDCP) describes as 'Burwood Town Centre Areas' at Section 3.3.2. As such, part of the site is within the 'Middle ring' area, and part of the site is within the 'Perimeter' area. Figure 1 - Dividing line (shown dashed) that demarcates the change in controls (from Exhibit H)

The contentions are distilled

The backgrounds facts of the matter and contentions as defined by the Respondent are set out in the Amended Statement of Facts and Contentions filed with the Court on 6 August 2020 and marked Exhibit 2.
However, as the hearing evolved, the matters in dispute were distilled as follows:

The Applicant does not have the owners consent.
Whether the proposed development exhibits design excellence.
The location of the gross floor area on the site is incompatible with the character and streetscape of the local area.
The proposed development adversely impacts amenity of neighbouring properties.
The car parking provision is inadequate.

Expert evidence

The Court was assisted by the following experts who conferred prior to the hearing and prepared joint reports: Discipline Applicant Respondent Urban Design Rohan Dickson Gabrielle Morrish Planning Giovanni Cirillo James Arnold Traffic Robert Varga Jason Scoufis Engineering Stefan Hasham Scott McLaughlin

As a result of the experts conferring prior to, and throughout, the proceedings, a number of supplementary joint expert reports were tendered which resolved or narrowed contentions, or which were agreed could be resolved by condition of consent.
The experts in traffic, engineering, urban design, planning were required to give oral evidence.

Planning framework

The site is within the B4 Mixed Use zone identified by the Burwood Local Environmental Plan 2012 (BLEP), in which boarding house development is permitted with consent.
The objectives of the B4 zone are in the following terms: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
As the proposed development is for a boarding house development, the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) apply.
Clause 29 sets out certain standards on which the proposed development may not be refused, if the development achieves compliance with those standards. Most relevantly, the Respondent considers there to be a shortfall in the number of car parking spaces provided.
It is also contended that the design of the development is not compatible with the character of the local area as required by cl 30A of the Affordable Housing SEPP.
As the proposed development is for a new building of three storeys or more in the B4 zone, it is subject to cl 6.5 of the BLEP which states: 6.5 Design excellence in Zones B2 and B4 (1) The objective of this clause is to deliver the highest standard of architectural, landscape and urban design. (2) This clause applies to development involving the erection of a new building of 3 or more storeys on land in Zone B2 Local Centre or Zone B4 Mixed Use. (3) Development consent must not be granted for development to which this clause applies unless the consent authority is satisfied that the development exhibits design excellence. (4) In deciding whether the development exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural, landscape and urban design has been achieved (including in the materials used and in detailing appropriate to the location, building type and surrounding buildings), (b) whether the form and external appearance of the proposed building, and ground level detailing, will significantly improve the quality and amenity of the public domain, (c) how any streetscape and heritage issues have been addressed, (d) whether the amenity of the surrounding area, including any view corridors, vistas or landmark locations, will be adversely affected, (e) how traffic circulation and vehicular access will be addressed and whether the proposed development supports the provision of high quality pedestrian, cycle and service access, (f) whether any adverse effect on pedestrian movement and experience will be avoided (and whether the public transport interchange as the focal point for pedestrian movement in the surrounding area will be reinforced and the ease of pedestrian access to and from that interchange will be facilitated), (g) whether the development supports an integrated land use mix in Zones B2 and B4, including a diversity of public open spaces at the ground level, as well as the roof and other levels of buildings, (h) how the bulk, mass, modulation, separation, setback and height of buildings have been addressed and whether they are appropriate in the context of existing and proposed buildings, (i) whether a high standard of ecologically sustainable design (including low-energy or passive design) will be achieved and overshadowing, wind effects and reflectivity will be minimised.

Owners Consent

The parties are agreed that the owners consent that is in dispute in this matter is the consent from the owners corporation and from the owners of Lots 22 and 23.
Consent from the owner of Lot 15 was also lacking at the commencement of the hearing, however it is agreed that this consent is found at Exhibit E, Tab 6.
According to Mr Hemmings SC, counsel for the Applicant, the owners consent from the owners corporation is already obtained, is without limitation, and can be found at Exhibit C, Tab 3 dated 7 July 2016 (2016 consent).
The 2016 consent carries the common seal of the owners corporation, and is in the following terms: "The Owners of Strata Plan 70949, the registered proprietor of the whole of the Common Property at 4 Railway Parade Burwood irrevocably consents to Gamma Gamma Pty Ltd, CD Architects and its authorised consultants and nominees making enquiries, requesting information, lodging Development Applications, Demolition Applications, Excavation Applications, rezoning, consolidation and Subdivision Applications (where applicable) and dealing in this respect with the authority of Strata Plan No.70949 in relation to the property."
However, correspondence from Mr Christopher Plummer, a representative of the Owners Corporation states that the consent applied to a previous development application has since been withdrawn and that no consent has been given in relation to the development application now before the Court (Exhibit 1, folio 503).
Mr Plummer, on behalf of the owners corporation, requests that the DA be rejected as there is no relevant consent.
The Applicant submits that as shown in Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 (Rose Bay Afloat), the Court is not precluded from granting consent to development because the landowner no longer consents to the development application.
This is due, in part, because development consent is a product of environmental planning law as distinct from the act of development which is a matter of real property (Rose Bay Afloat, at [82]).
So understood, "[t]he submission suggesting a hardship to an owner by the Court determining that once his consent has been given it cannot effectively be withdrawn dissolves when the true nature of a development consent is understood." (Rose Bay Afloat, at [81]).
Furthermore, as shown by Craig J in Rothwell Boys Pty Ltd v Coffs Harbour City Council (2012) 186 LGERA 366; [2012] NSWLEC 19, at [37], quoting the decision of Cripps CJ in Wharf 11 Pty Ltd v Sydney City Council [1991] NSWLEC 21: "development consent does not authorise development. Generally speaking, the process is not concerned with relations between owners and other people who wish to implement the development consent. The fact that a development consent runs with the land does not carry with it the notion that once a development consent has been granted the development can be undertaken on the land against the wishes of the owner."
According to Mr Hemmings, I am being asked by the Respondent to 'go behind' the consent and entertain a 'collateral challenge' to the validity of the owners consent that is not a matter for Class 1 proceedings.
The Court has consistently held that where a landowner has consented to the lodging, or making, of a development application, it is to be taken to apply to that development application, including where that application is amended by the Applicant.
A development application has been lodged, or made, and is now the subject of an appeal. The revocation of consent can have no effect as its purpose, being to authorise the making of the development application, has passed.
For these reasons, I am satisfied that the owners consent from the owners corporation is in evidence.
In respect of the owners consent from the owners of Lots 22 and 23, Mr Hemmings acknowledges that it had not been obtained prior to the hearing, but submits that confirmation of the same is required prior to the delivery of the judgment, and not prior to the completion of the hearing as shown by the Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364.
At the commencement of the second day of the hearing, the Applicant sought leave of the Court to read an affidavit prepared by Mr Greg Gav in respect of negotiations to obtain the owners consent, which may be summarised as follows:

Mr Gav is a director of the company named Gamma Gamma, named in the owners consent at Exhibit C, Tab 3 and of Mars City Pty Ltd, the Applicant.
Mr Skelton, a solicitor acting on behalf of Mr Gav in securing the owners consent from the owners of Lots 22 and 23, was hospitalised without warning due to a medical episode.
Mr Gav has now engaged another solicitor to conclude negotiations and secure the owners consent.

Mr White, counsel for the Respondent, objected to the affidavit being read as its intended purpose was not clear but in any event it should not prevent the Court from finding, at the conclusion of the hearing, that as owners consent had not been secured, the appeal should be dismissed.
According to Mr Hemmings, the affidavit seeks to resolve any dispute as to the currency and effect of the owners consent from the Owners Corporation (in par 1-4), and merely seeks to bring to the attention of the Court, and the parties, the unfortunate circumstances in respect of Mr Skelton who was engaged in negotiations the subject of the contention.
I determined to read the affidavit as it directly related to the contention in respect of the owners consent, and on the basis of what appeared to be a medical emergency that, in my view, is deserving of some consideration.
At the conclusion of the hearing, I directed the Applicant to provide evidence of owners consent within 14 days or I would determine the matter on the evidence before me.
On 25 September 2020, the Applicant filed evidence of consent from the owners of Lot 22 in SP83920, and Lot 23 in SP 83920. On this basis, I am satisfied that owners consent has been provided in accordance with cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations).

Whether the proposed development exhibits design excellence.

The Respondent submits that the proposed development does not exhibit design excellence due to the adverse impact it imposes on the streetscape and the amenity of the surrounding area.
Ms Morrish, on behalf of the Respondent, at p28 of the joint expert report (Exhibit 6), considers the particular issues to be whether: 1. the proposed development is the highest standard of architecture and urban design, including the detailing relative to building type and surrounding buildings. 2. the form improves the quality of the public domain in the way it addresses streetscape issues. 3. the amenity of the surrounding area will be adversely affected and whether high quality pedestrian access is achieved. 4. the proposed development supports an integrated land use mix with a diversity of public open space at ground level and how the bulk, mass, modulation, separation, setbacks have been addressed and if they are appropriate in the context of existing and future buildings.
The Applicant submits that the operative provision at cl 6.5 of the BLEP is not the achieving of the highest standard of architectural, landscape and urban design but is instead the satisfaction required, at subcl 6.5(3), as to whether the proposed development exhibits design excellence (emphasis added).
Subclause 6.5(4) sets out the matters to which regard must be had in arriving at the opinion of satisfaction required by subcl 6.5(3).
The Respondent considers the requirements of cl 6.5 of the BLEP to be complementary with the BDCP. In particular, the objectives at Section 3.2 of the BDCP are in the following terms: "O1 To ensure that new buildings: Represent architectural and urban design excellence. … Respond to surrounding notable buildings and enhances the streetscape. …."
The parties agree that consideration of these matters is best set out in the evidence of the planning and urban design experts.
The planning and urban design experts essentially consider the matters at cl 6.5(4) by reference to the location of gross floor area (GFA) on the site, and its impact on character and streetscape, and the amenity of the neighbourhood.
I propose to consider the expert's evidence in the manner adopted by the experts themselves, commencing with the arrangement of GFA on the site, and the issues that flow from that.
In general terms, the Respondent prefers the proposed development on the Railway Parade frontage, while the Applicant holds there is nothing that so requires, and development fronting Elizabeth Street is consistent with the desired and emerging character of the area.

Location of the gross floor area on the site

Mr Cirillo considers the existing fragmented and irregular subdivision pattern to have determined that the only available portion of the site for development is to the rear of the site.
Furthermore, there is no requirement in the BLEP or the BDCP for the sites fronting Railway Parade to orient all permissible floor space towards that frontage.
In any event, the Applicant submits that the narrow width of the site fronting Railway Parade constrains the development opportunity as demonstrated by the plans at Exhibit J which show a development said to be within a complying envelope.
The planning experts are of the view that the Exhibit J plans show a potential envelope that is impractical and not achievable as it does not comply with the Apartment Design Guide (ADG), or the Residential Flat Design Code (RFDC).
The urban design experts also agree that the Exhibit J plans are 'amiss', and propose amendments that are annexed to the supplementary joint report at Exhibit 9. In summary, the amended plans annexed to Exhibit 9 show a 'two building form', with additional GFA located at both the Railway Parade frontage, and in the form of a smaller tower fronting Elizabeth Street.
To the Respondent, the decision to locate the GFA to the rear of the site fronting Elizabeth Street 'harvests' and 'uses up' all of the allowable GFA for the site, which has the effect of preventing the existing commercial building fronting Railway Parade from realising the development intended by the controls for tower forms similar to those recent developments in the vicinity.
According to Mr Arnold, this is inconsistent with the aims of the area-based controls at Section 3.3 of the BDCP 'Area Based Controls - Burwood Town Centre and Burwood Road North' which include: To provide for a vibrant centre with a level of amenity that reflects its Major Centre status. To provide for a built form that supports appropriate urban design outcomes To ensure a building scale that complements existing heritage items and human-scale streetscape environments.
Without development to the Railway Parade frontage, the low scale 5-storey commercial building will continue to front Railway Parade which is inconsistent with the emerging character of 20-storey tower forms.
Such a development foregoes an opportunity for retail activation on Railway Parade, and the chance to apply the allowable height of 30m (to the east) and 60m (to the west) that would effectively transition between the Middle ring area and Perimeter area.
The consequence is a highly defensive tower to the rear of the site with insufficient setbacks and separation to surrounding properties, and a large blank wall to the southern rear boundary.
In the alternative, the Applicant submits that nowhere in the BLEP or BDCP do the controls require the GFA that is available to the site to be located on the Railway Parade frontage.
Instead, the controls apply equally to Railway Parade and Elizabeth Street and there is no street hierarchy evident in the area-based controls in the BDCP. Street front setbacks (Figure 4 of the BDCP) and Secondary setbacks (Figure 6 of the BDCP) are shown to apply to both frontages.
That said, for reasons illustrated at [32] of this decision the Applicant identifies the controls depicted in Figure 4 and Figure 6 apply to only half the Railway Parade frontage.
This is consistent with the evidence of Ms Morrish which is, in summary, that the controls envisage a taller tower form on the western portion of the site fronting Railway Parade, and a stepping down to a lower form on the eastern part, with a common podium to a maximum of 15m high fronting Railway Parade.
The intended effect of the provisions on the site is for development to provide a downward transition in scale from the Middle Ring area to the Perimeter area.
While acknowledging some departures from the provisions of the BDCP, the Applicant submits that the proposal complies with the height and FSR control, and with the height plane requirement at Section 3.3.1 of the BDCP.
Furthermore, the resulting form is consistent with the height and scale of the development evident at 1-3 Elizabeth Street, and is compatible with the bulk and scale of new development at 6 Railway Parade, and 16 Railway Parade.
For the reasons above, and to the extent there are some non-conformances with the BDCP, the Applicant submits that the Court should apply the provisions of the BDCP flexibly in accordance with s 4.15(3A)(a) of the EPA Act.

Character and streetscape

The urban design experts agree that as the site has two street frontages, consideration of the character of the local area, as required by cl 30A of the Affordable Housing SEPP, includes both Railway Parade and Elizabeth Street.
There is also agreement in respect of the visual catchment relevant to the frontages.
The Railway Parade frontage is within a visual catchment comprising the railway line, station and landscape edging the station precinct, new high rise development as well as existing and recent development in the vicinity including residential apartment development, landscape over the crest of the hill at the railway bridge on Shaftesbury Road.
The Elizabeth Street frontage is within a visual catchment formed by the termination of Elizabeth Street in a cul-de-sac that provides access to the site and includes the car parking structure at the rear of the existing commercial building on the site, and the rear of the new mixed use development at 6 Railway Parade and its vehicle driveway, the commercial development at 5 Belmore Street and its podium base and vehicle access, a small two-storey building at 10 Elizabeth Street which presents a rear façade and covered on-grade parking area, vehicle access and loading area at 1-3 Elizabeth Street including its ground level which also includes residential access to the development and new commercial suites on the corner activating the corner of Elizabeth Street and the rear of the Burwood Court House.
According to Mr Arnold, an important aspect of the desired future character of both Railway Parade and Elizabeth Street is set by Section 3.3.2 of the BDCP which includes a 3m street front setback up to 15m in height, and a 6m secondary setback for the tower above.
The objectives of the Street front setback provision at Section 3.3.2 are as follows: "Objectives O1 To develop and create a strong definition of streets and public spaces. O2 To ensure that the built form assists in forming the character of the public urban space. O3 To provide wider footpaths and improved pedestrian access at identified streets."
The objective of the Secondary setback provision is: "To establish the spatial proportions and enhance the urban qualities of the street."
The assessment of the Elizabeth Street character is whether there is consistency between the proposed development and that of surrounding buildings. However, the assessment of the character of Railway Parade is more focused on what the development does not do, but in the view of the Respondent, should do.
In summary, the Respondent considers the emerging character of Railway Parade to be defined by setbacks to a 15m high podium forming a 'street wall', with a tower over setback further.
This logic is generally adopted in 'Figure 11: Anticipated Future Development (Squillace)' on p12 of the Character Analysis prepared by Mr Dickson (Exhibit C, Tab 8). It should be noted that the Character Analysis also maintains that existing setbacks to Railway Parade are inconsistent (Figure 16, p16), and vary between 0m and 10m.
However, as already stated, the proposed development does not propose a street wall and tower to Railway Parade. Instead, the Applicant locates the available GFA to the rear of the site, which brings into consideration the Elizabeth Street character.
According to Ms Morrish, Elizabeth Street's character is informed by buildings that have a mix of primary and rear addresses to the street. Newer development with a sole address to Elizabeth Street provides non-residential (being commercial) activity at the ground floor in accordance with the provisions of Section 3.2.4 of the BDCP.
Section 3.2.4 of the BDCP deals with Street front activities and building access in the Burwood Town Centre B4 Mixed Use zone, with the following objectives: "O1 To encourage pedestrian safety, visual interest and activity at street level. O2 To promote street front activities, especially along streets of high pedestrian use. O3 To create building entrances that are safe and contribute positively to the streetscape and building façade design." Control P2 is in the following terms: "Ground floor level development must: Promote quality non-residential activities in accordance with the zone. Minimise the number of service doors. Encourage visual interest on service doors with displays etc. Provide access points to and from the public domain at not more than 20 metre intervals. Provide at-grade access at entry points. Incorporate visually interesting streetscape frontages at ground level with attractive entries, clear glazed windows and window displays, artworks, articulated architecture and facade modulation."
The proposed development provides a setback of 2.28m to the ground level only (and not consistently for the 15m high street wall) which is 'totally dominated by vehicle ramps and services', according to the Respondent. The tower above is set back 3m, not 6m, from the boundary to Elizabeth Street and presents a large blank wall to the south which is unlikely to be masked by further development at 5 Belmore Street.
Achieving the setbacks required by the BDCP is important to the objective of widening footpaths, improving the pedestrian access, and avoiding a poor streetscape outcome and relationship between existing and future towers in the immediate vicinity.
Mr Dickson's Character Analysis shows, at Figure 16, a built form in Elizabeth Street that is generally built to the street boundary, forming a street wall that varies in height.
Mr Dickson considers the proposed street wall, which conforms to the street wall height of 15m, but not to the 3m setback, to be consistent with the objective of Section 3.3.2 as it strongly defines the street and assists in providing a human scale street environment where it is currently dominated by vehicular driveways and is unable to be changed given works to the commercial building they serve is not proposed.
If the Street front setback and secondary setbacks were to conform, Mr Dickson's concern is that it would create a 'missing tooth' effect in the street when viewed against the potential development envelope of 5 Belmore Street which would project 7.7m further to the west as a result of the street alignment.
Furthermore, such a setback has the potential to compromise the safety of residents and pedestrians given the obstructed sightlines that would result. It is partly for this reason that the pedestrian entry at the Elizabeth Street frontage is retained to provide street-level activation, according to Mr Dickson. Ms Morrish regards the same entry as narrow, and sandwiched between driveway entrances.
The experts agree that side and rear setbacks are also an aspect of character to the extent they inform the future character of the Middle Ring area and Perimeter area and affect the amenity of surrounding properties through the separation between buildings that comes from setting the building back from the site boundary.
According to Ms Morrish and Mr Arnold, separation distances set out in the RFDC apply, and the relevant objectives in the BDCP are found at the Building Separation/Frontage overview as follows: "Overview Building separation provides appropriate levels of amenity for the private and public domain. Objectives O1 To ensure that development has appropriate massing and spacing between buildings and frontage to any building. O2 To assist in achieving acceptable levels of visual and acoustic privacy."
While the Court was not taken to the RFDC, Ms Morrish states that the provisions require separation distances of 9m for habitable rooms above the 4th storey, and a distance of 12m above the 8th storey. The effect of the provision is that a tower greater than eight storeys in the location shown is not permitted and those distances that are achieved effectively 'borrow' the setbacks of adjoining sites.
The provisions of Control P2 within Section 3.3.2 dealing with Building separation/frontage overview also requires that separation distances be shared equally over property boundaries.
To Ms Morrish, a complying setback to Elizabeth Street would also comply with the separation required by the RFDC to 1-3 Elizabeth Street. The effect of this would be to remove the need for privacy measures that result in a 'defensive' façade.
Setbacks that comply with RFDC guidance would reduce the impact said by the Respondent to arise from the non-conformance, which include visual bulk, overshadowing and view impacts.
It is helpful at this point to explain that one aspect of the dispute between the parties is whether the reference to the RFDC in the BDCP invokes the provisions of the RFDC, or those of the ADG which replaced the RFDC in 2015.
While the Respondent considers reference to the RFDC in the BDCP to be inadvertent, and to more correctly invoke the ADG, the Applicant draws my attention to p7 of the BDCP where the history of amendments to the BDCP are listed.
Four amendments to the BDCP are recorded. Amendment 3 and 4 are noted as a general review of the BDCP, taking effect after the adoption of the ADG on 6 December 2016 and 1 August 2018 respectively.
As it is well known that the RFDC was superceded by the ADG, the specific reference to the RFDC in a document five years after the introduction of the ADG, and after not one but two reviews having been completed subsequent to the adoption of the ADG, I can only conclude that the BDCP means what it says and says what it means.
Furthermore, as the RFDC is cited by the BDCP, it follows that its provisions likely form the basis of decisions being made today in respect of development that will contribute to the desired future character of the Burwood Town Centre.
Should the Council's preference be to cite the ADG, the Council will no doubt at some point in the future, make this simple amendment and remove the ambiguity currently at play.
Until then, the SLEP does not seek to apply the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) to boarding house development and so cl 6A (2) of the SEPP 65 that would otherwise nullify the effect of a development control plan that varies from the provisions at cl 6A (1)(a)-(h), does not apply.
That said, the parties are essentially agreed that the difference lies in the degree of prescription that applies to numerical guidance published in the RFDC and the ADG. Mr Hemmings describes the provisions of the RFDC to be 'rules of thumb' and Mr Cirillo considers the RFDC provisions to be 'recommendations' while the ADG provisions are 'minimums'.
The urban design experts read the provisions dealing with side and rear setbacks differently. The relevant provision under Section 3.3.2 is in the following terms: "Side and Rear Setbacks Objectives 01 To define the urban form of development in the Commercial Core and Middle Ring Areas. Provisions P1 For residential development refer to the building separation setback provisions of the RFDC which supplements SEPP 65 - Design Quality of Residential Flat Development. P2 Other street front development up to 15 metres in height must be built to the side boundary and may be built to the rear boundary. Refer to Figure 7."
Figure 7 appears on p60 of the BDCP as follows:
Mr Dickson relies on Control P2 to permit a zero setback for the first three storeys as no residential uses are proposed at these levels. Above this level, vertical louvres break up the mass of the development when viewed from neighbouring properties and more generally where there are non-conformances with RFDC separation distances, the proposed development achieves the objectives of the BDCP due to mitigation measures including fixed louvres, splayed walls, blank walls and screen planting.
Due to the subdivision pattern in the vicinity of the site, and the stepped form of the proposed development, the separation distances are not uniform to each elevation, or level of the proposed development.
I was assisted by the Respondent in summarising the separation distances that are achieved, and the degree of conformity with the RFDC provisions as follows: 1. To the western elevation, a separation distance of 24m is required above Level 8, and only 21m is proposed. 2. To the southern elevation, a separation distance of 9m is required to levels 5-8, and only 5m is proposed (achieved by the existing setback of the building at No 5 Belmore Street). 3. To the eastern elevation, setbacks at lower levels comply but overshadow the swimming pool in the communal area of 65 Shaftesbury Road. At levels 5-8, a separation distance of 18m is required, and only 12m is proposed. 4. To the northern elevation, a separation distance of 12m is required up to level 4, and only 10m is proposed. From levels 5-8, a separation distance of 18m is required, and only 10m is proposed.
Mr Cirillo provides a detailed assessment of the separation distances proposed at pp17-23 of the joint report which vary, in part, from the summary provided by the Respondent. For example, Mr Cirillo states the separation distance from 65 Shaftesbury Road, at levels 5-8 of the proposed development, is a compliant 18m. This is supported by drawing DA-315 in Annexure A of Exhibit 6.
Further drawings are provided in Exhibit C, Tab 3 providing separation distances to adjoining properties.
As it is put by Mr Arnold in Exhibit 5, the need for separation arises from the objective to achieve 'appropriate massing and spacing between buildings'.

Amenity of the surrounding area

One aspect that flows from the spacing between buildings is the degree of amenity impacted by the proposed development on those buildings from which the proposed development is spaced.
Resident objections contained in Exhibit 1 (tabs 20-45) are strikingly consistent in identifying a number of amenity impacts, including: 1. Overshadowing and overlooking to the communal swimming pool at 65 Shaftesbury Road. 2. Adverse impact on the quality of mobile phone signal reception inside apartments at 65 Shaftesbury Road. 3. Significant adverse impact on the value of apartments at 65 Shaftesbury Road. 4. Additional traffic congestion resulting from traffic generated by the proposed development. 5. Potential for structural damage to adjoining properties resulting from deep excavation on the subject site. 6. Risks to the amenity and safety of residents from boarding house development.
The Court was not presented with evidence in respect of mobile phone signal reception, property value impact or the particular safety risk from residents of the proposed development and so I do not propose to respond directly to these concerns other than to note the Court has consistently held that there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area.
The Court was, however, presented with evidence in respect of those matters set out at [134(1)] and [134(4)].
For completeness, I consider the potential for structural damage to adjoining properties to be properly a matter for conditions of consent in respect of dilapidation reports, excavation methods and the like, should consent be granted.
Ms Morrish notes the residential apartment development at 65 Shaftesbury Road is unlikely to develop as it is in the Perimeter area where different controls apply. The result, according to Mr Arnold, will be a high sense of enclosure with solar access to the pool being severely limited.
Mr Cirillo assesses the overshadowing as minor between 1.45pm-3pm in mid-winter at which time he asserts residents are unlikely to be using an outdoor swimming pool in any event and that an opening to the east relieves the communal open space from this sense of enclosure.
According to the shadow studies prepared by the Applicant, the swimming pool is already substantially affected by overshadowing.
The common open space in which the pool is located is to the south of the existing building on the subject site, and close to the boundary with 67 Shaftesbury Road to the south, which impacts the solar access enjoyed by the swimming pool today.
In short, the swimming pool is located in an area that is bounded on three sides by adjoining properties, and largely bounded to its east by the residential flat building at 65 Shaftesbury Road itself.
From my assessment of the drawings, and my understanding of the expert evidence, I consider the swimming pool at 65 Shaftesbury Road to be, by virtue of its location at natural ground level and close proximity to the western boundary of the subject site, subject to overshadowing by a development even of the scale proposed by Ms Morrish at 8 storeys in height.
The communal open space at 65 Shaftesbury Road is an open space surrounded by development today, and is further compromised by being located on the fault line that runs between the Middle Ring and Perimeter areas of the Burwood Town Centre.
Controls in the Middle Ring area encourage taller development to the north and west of the open space, which will result in greater over-shadowing of the swimming pool over time - if not by this development, by further and future development in the vicinity.
In respect of the separation distance to the east between the proposed development and 65 Shaftesbury Avenue, I accept Mr Cirillo's opinion that the combination of strata title arrangements, and the lack of additional height as an incentive in the Perimeter area is unlikely to catalyse development on the site. For these reasons I consider it reasonable for the separation to be achieved on the assumption of the existing building on the site.
The proposed development presents a blank wall with a zero setback to the southern boundary adjoining 5 Belmore Street that the Respondent believes will promote a like approach in any future development of the adjoining site. The result is likely to be a development at 5 Belmore Street that has no northern aspect.
The site at 5 Belmore Street does have a moderate northern aspect, by virtue of the setback from Elizabeth Street that I will detail later in the judgment. It also has an aspect to the east and west, and so achieving the solar access requirements of the ADG in any future development should be possible without relying on a northern aspect.
The southern wall presents a blank façade to 5 Belmore Street. When considered from the Elizabeth Street frontage, the southern boundary may reasonably be considered a side boundary. The diagram at [126], and the wording of Provision 1 at [125] require setbacks as set out in the RFDC or, where the use is not residential, a zero setback is required to the first 15m.
Ms Morrish would consider a flexible approach to the RFDC requirements in a tower fronting Railway Parade to permit a tower (that is stepped in height) to be built, in part, to the side boundaries (Exhibit 9, par 4).
While not existing, as it is in the Railway Parade properties, the same scenario is posited as a future development form by the Applicant between the proposed development and 5 Belmore Street.
It is not uncommon in a B4 zone for buildings to abut, and to use the common boundary, as in this case, for services, stairs and other non-habitable uses to be located against the blank wall.
The proposed development reflects this approach which is in my assessment, consistent with the diagram at [126]. It does so while conforming to the height plane found in the BDCP.

Carparking

Residents concerns' at the traffic generated by the proposed development are somewhat reflected in the contention pressed by the Respondent that the carparking provision is inadequate.
In summary, Mr Arnold's view is that there is nothing that should prevent or exempt the Applicant from meeting the parking rates set out in the SEPP ARH, which are consistently relied on by the Respondent in similar development in the Burwood Town Centre. An assessment of those rates against the proposal would require 52 car spaces to be provided.
The Applicant submits that while the proposed development does not achieve the level of parking required to trigger the 'must not refuse' provision at cl 29(2)(e), it does satisfy the parking required of boarding house development in the BDCP.
Mr Varga's assessment of section 3.7 of the BDCP is that 1 space is required for each 10 residents of a boarding house, and 1 space per 2 employees or caretakers. In par 8 of the joint report (Exhibit 3), Mr Varga calculates a total of 10.8 spaces are required which he considers reasonable given the site's close proximity to the Burwood train station and to bus services.
A total of 15 car spaces is proposed, and the experts agree that this complies with the parking rates set out in section 3.7 of the BDCP.
I note at this point that Mr Varga's calculation was made prior to the filing of the joint report on 31 August 2020, after which the Applicant was granted leave to rely on plans that deleted Level 8 which I understand has the effect of reducing the number of residents in the development by 7 rooms.
I accept the Applicant's submission that, in essence, failure to achieve the car parking rates set out in cl 29(2)(e) of the SEPP ARH does not invite refusal of the application without first undertaking an assessment of the merits of the car parking proposed.
The site is unquestionably well positioned to access public transport, and conforms to the carparking numbers expected of boarding house development by TABLE 2 - Car Parking Rates in Centres and Corridors at section 3.7 of the BDCP.
This is consistent with the requirement of section 3.7 of the BDCP, Provision P1, that: "Basic parking requirement: Development in the B4 Mixed Use zone in the Burwood and Strathfield Town Centres must provide parking spaces on site for each proposed land use in accordance with the Table 2."
As the car parking rates are in accordance with the table in the BDCP, I accept the Applicant's submissions that the Court is guided by s 4.15(3A)(a) of the EPA Act and cannot require more onerous standards with respect to that aspect of the development. I also consider the site's immediacy to the train station to be a factor likely to ameliorate the need for private vehicle use by the occupants of the proposed development. On this basis, I am satisfied that the car parking is sufficient on numerical grounds.

Boarding house amenities and facilities

The Respondent contends that the amenities and facilities of the boarding house are inadequate for reasons that may be described as twofold; externally, and internally.
Externally, the separation distance between the proposed development and existing buildings is less than the distance required by the ADG and as a result, there is an unacceptable impact on privacy to both the proposed and neighbouring development.
Further, the separation distance is not equitably shared as required by section 3.3.2, Building Separation/frontage overview Provision P2 but instead takes advantage of the existing setbacks already evident on adjoining properties.
Internally, section 3.2.11 of the BDCP contains objectives and provisions in respect of ceiling height in the following terms: "3.2.11 Ceiling Height Objectives O1 To provide adequate amenity. O2 To allow for future mix of uses and contribute to flexibility of use. Provisions P1 Development must provide the following minimum ceiling heights. Dimensions are expressed from finished floor levels to finished ceiling levels: Ground level of all development (commercial and residential): 3.3 metres. Non-residential floors above ground level: 3.0 metres. Residential floors above ground level: 2.7 metres for habitable rooms and 2.4 metres for non-habitable rooms."
In the joint report prepared by the urban design and engineering experts (Exhibit 4), Ms Morrish considers the change in layout from Level 9 to Level 10 will necessitate bulkheads to encapsulate the waste from wet areas above.
The Applicant shows, in annexure C of Exhibit 4, the location of a bulkhead for this purpose and I am advised by Mr Hasham, structural engineer for the Applicant that despite the spans involved and loads from floors above, that no slab downturns or thickening will be required that would obstruct the waste services and require a lower bulkhead than the 2400mm high ceiling in this location.
At the close of proceedings, I directed that the Applicant should resolve the amendments contained in Exhibit H with the remainder of the drawing set, in the event that the Court was minded to grant consent.
Consistent with these directions, the Applicant provided to the Court amended documents that were filed on 24 September 2020.

Consideration

I accept that the operative provision at subcl 6.5 of the BLEP is not the achieving of the highest standard of architectural, landscape and urban design but is instead whether the proposed development exhibits design excellence.
Design excellence is defined by those matters listed at subcl 6.5(4), including relevantly: (a) whether a high standard of architectural, landscape and urban design has been achieved (including in the materials used and in detailing appropriate to the location, building type and surrounding buildings), (b) whether the form and external appearance of the proposed building, and ground level detailing, will significantly improve the quality and amenity of the public domain, (c) how any streetscape and heritage issues have been addressed, … (e) how traffic circulation and vehicular access will be addressed and whether the proposed development supports the provision of high quality pedestrian, cycle and service access, (f) whether any adverse effect on pedestrian movement and experience will be avoided… …. (g) whether the development supports an integrated land use mix in Zones B2 and B4, including a diversity of public open spaces at the ground level, as well as the roof and other levels of buildings, (h) how the bulk, mass, modulation, separation, setback and height of buildings have been addressed and whether they are appropriate in the context of existing and proposed buildings, (i) whether a high standard of ecologically sustainable design (including low-energy or passive design) will be achieved and overshadowing, wind effects and reflectivity will be minimised.
The existing building fronting Railway Parade is a 5-storey building elevated above the footpath level. The height of the existing parapet approximates that of 65 Shaftesbury Avenue. Together, the two buildings form what appears to be a street wall of similar scale to that at 6 Railway Parade and 16 Railway Parade.
Clearly, what is missing is a tower form above that the Respondent considers to be the intent of the controls applicable on the site.
A tower form is evident at 6 Railway Parade and 16 Railway Parade. This may suggest an emerging built form that addresses the current intent of the Council, but it is not the only conceivable built form on this site which spans Railway Parade and Elizabeth Street.
In my view while the arguments for such an emerging built form may be compelling, some weight must be given to the objectives and provisions of the BDCP that appear to treat Railway Parade and Elizabeth Street equally (see Figure 4 and Figure 6 of the BDCP). Elizabeth Street is a frontage that is, in some measure, addressed by the proposed development.
The failure to locate a tower form at the Railway Parade frontage is, in my view, heavily influenced by the Respondent's decision, taken some time ago, for the change in controls applicable to different Town Centre areas to run down the centre of this site. It is an impossible divide.
By way of illustration, the controls depicted in Figure 4 and Figure 6 of the BDCP apply to only half the Railway Parade frontage, strongly suggesting that the site is stranded between Town Centre areas.
It is in this context that the Applicant has elected to consolidate the allowable GFA to the portion of the site fronting Elizabeth Street.
The particular conditions at this part of Elizabeth Street are relevant in two respects. Firstly, the roadway has been described as a cul-de-sac. The intersection of the cul-de-sac and the Elizabeth Street throughway is marked by a dashed line marked on the roadway pavement, and signage requiring a vehicle exiting the cul-de-sac, and joining the thoroughfare to 'give way'.
Secondly, the cul-de-sac largely functions as a turning head. The roadway thickens to permit the turning of vehicles as the spur is not a through-road. Elizabeth Street is in every respect, a lane.
The relevance of the thickening in the roadway that forms the turning head is twofold. It results in a setback from the street wall formed by No 5 Belmore Street that Mr Dickson describes as a form of 'missing tooth', and it leaves as residual, a narrow footway connecting the footpath fronting No 5 Belmore Street to the Elizbeth Street frontage of the subject site.
I do not accept that the effect of the 3m setback required by the BDCP would be a missing tooth as the roadway thickening formed by the turning head at the termination of the Elizabeth Street cul-de-sac is the reason for a substantial setback in the street wall currently.
The missing tooth is evident today by virtue of the setback formed by the turning head and which serves to already obstruct a sightline for passive surveillance that Mr Dickson considers would result from a setback of 3m.
Instead, the existing condition formed by the turning head is sufficiently aberrant to impose on the site the same, or greater effect as would the 3m setback. To require a setback in addition to the setback imposed by the turning head would not, in my assessment, serve to develop or create a strong definition of streets and public spaces, and would not assist in forming the character of the public urban space.
A setback of 2.28m is provided for a modest footpath entry at ground floor. I accept that this aspect of the proposed development is troubling. As Ms Morrish correctly notes, the entry is sandwiched between carpark ramps.
The pedestrian approach to the entry may be along the narrow footway that turns the corner of No 5 Belmore Street to the subject site or, more likely, on the roadway which requires the traversing of the car park ramp to the south of the building entry.
While in any other circumstance this would clearly be an unacceptable approach to take to pedestrian access, Elizabeth Street is in the form of a lane. It has no through traffic. Relevantly, the modest ground entry to the building would be only the second entry to a building in the Elizabeth Street cul-de-sac that is not exclusively designed for vehicles. As such, I accept it will significantly improve the quality of a public domain that is otherwise dominated by vehicle cross overs.
It may well be that a future solution may need to adopt a 'shared street' approach in this turning head and treat the roadway pavement in a manner that recognises the slow speed use by vehicles and the presence of pedestrians accessing this site, and others in the vicinity.
However road improvements are not proposed, and the present circumstances are sufficient to form an opinion of satisfaction that the glazed building entry foyer, modest landscaping and paved treatment of the car park ramps at the ground level will result in a high quality pedestrian access, particularly when considered in the context of the local character in which the pedestrian experience has clearly been an afterthought for so long.
Above the podium, I am satisfied that the bulk, mass, modulation, separation and setback of the building at various levels is well considered.
The arrangement of openings and uses does not result in privacy issues as would generally be the case in residential apartment development which distinguishes the privacy needs of a habitable space from a non-habitable space.
In boarding house development, living, bedroom and kitchen areas are co-located. The RFDC (at p52), and for what it's worth, the ADG (at p62) both advise that "degrees of privacy are influenced by a number of factors…the activities of each of the areas where overlooking may occur, the times and frequency these spaces are being used…the occupants' expectations of privacy and their ability to control overlooking with screening devices."
There are no external balconies or living areas opening on to external open space that would impose an overlooking impact. Services, stairs and circulation areas are positioned to the south, permitting boarding rooms and common areas to address north and west for natural daylight.
Fixed vertical louvres are shown at various openings on the plans, and I consider the respect for privacy by residents of the proposed development fronting Elizabeth Street to be of mutual interest given the overlooking possible in return.
That this has been achieved on a site that is surrounded by existing development without, in my view, imposing unreasonable privacy impacts indicates a certain level of skill in the design that answers the description at cl 6.5(4)(a) and (h) of the BLEP.
The proposed development complies with the height and FSR control in the BLEP, and with the height plane requirement at section 3.3.1 of the BDCP. The resulting form is also largely consistent, in my view, with the height and scale of the development evident at 1-3 Elizabeth Street, and adopts a not dissimilar bulk and scale to 6 Railway Parade, and 16 Railway Parade as shown in Figure 3 of the joint expert planning report, re-produced below:
On this basis, I consider the proposed development to be compatible with the local character of the area in accordance with cl 30A of the Affordable Housing SEPP.
In arriving at this conclusion, I note that a development seeking to focus the gross floor area along Railway Parade frontage would be consistent with, as Ms Morrish puts it, 'urban design 101'. A tower form addressing Railway Parade might even be more compatible with the emerging character of Railway Parade. However, it is not the role of the Court to consider whether a better, alternative proposal should be pursued.
Instead, the Court's role is to assess the acceptability of the proposal before the Court, as well as to consider its environmental impact. In the absence of any control requiring new development to be concentrated along Railway Parade, the failure to do so does not warrant refusal of the development application.

Costs thrown away arising from amended plans

The Respondent submits that the amendments to the application before the Court in Exhibit H are more than minor. In particular, the deletion of level 8 and its consequential impacts on the development requiring the amendment of a large number of drawings, and the resolution of the FSR exceedance are evidence of both the fact and degree of the changes made by the Applicant.
The Applicant considers the amendments to be confined to one level only, and what is described as little more than 'colouring-in' in respect of bulkheads to Level 9 and above shown on Drawing DA-108 Issue F.
In summary, the deletion of level 8 results in the redistribution of height across other levels of the building, and is not a reduction in overall height of the building. The decision by the Applicant to redistribute the height has the effect of amending each level of the proposed development above the deleted level as so is consequential to the elevations, sections and the like.
While the decision to delete Level 8 from the proposed development may appear on first reading to be akin to discrete surgery, the impact on so many of the levels of the building by the equally apportioned surplus height imposes a subtle but consequential impact on the overall built form, which I conclude is more than minor.

Three conditions are disputed

At the close of the hearing, I directed parties to file agreed conditions of consent, which were filed on 23 September 2020. Three conditions are not agreed.
At Condition 16, the Respondent seeks to impose a condition in respect of clothes drying facilities, in the following terms: "Clothes drying areas or facilities shall be provided within an area of communal open space or provided within each residential unit. If provided on the balconies of individual units, the drying facilities must be screened from exterior view, and be designed in such a way that they do not detract from the building's appearance from the public domain."
The proposed condition fails to recognise that communal laundry facilities, including drying facilities are to be provided, and the Applicant seeks the condition to be removed.
I note the amended Plan of Management, filed 24 September 2020 is consistent with the Plan of Management at Exhibit C in stating that shared laundry facilities are provided on Levels 3, 5 and 7 of the building, and include dryer facilities. On the basis of these shared facilities, I am satisfied that clothes drying facilities are provided in a communal area that is screened from external view, and that adequate provision has been made to permit the condition to be deleted.
At Conditions 134 and 135, the Respondent seeks to impose conditions of consent that are consistent with its position at [155] in respect of the number of car parking spaces to be provided.
For the reasons set out at [154]-[163], I accept the Applicant's submissions on the car parking proposed and so I adopt the Applicant's proposed conditions.

Orders

The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans at Exhibit H subject to the Applicant paying the Respondent's costs thrown away as agreed or assessed, pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA/2019/68 seeking consent for construction of a 19-storey boarding house with three levels of above ground car parking, retention of the existing commercial building, and stratum subdivision at 4 Railway Parade, Burwood, subject to conditions in Annexure 'A'. 4. All exhibits are returned, except for Exhibit D. ………………….. T Horton Commissioner of the Court Annexure A (375751, pdf) Architectural Plans (6676177, pdf)

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: 26 November 2020

(2012) 186 LGERA 366

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Judgment (20 paragraphs)

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Cases Cited (7)

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