Maygood Australia Pty Ltd v Willoughby City Council

Land and Environment Court (NSW)|2008-12-30|Before: Mr P

CITATION : Maygood Australia Pty Ltd v Willoughby City Council [2008] NSWLEC 1507

APPLICANT Maygood Australia Pty Ltd PARTIES : RESPONDENT Willoughby City Council

KEY ISSUES: Development Application :- for residential flat building, SEPP 1 variation to FSR, Setbacks. Streetscape, Car parking, Amenties

CASES CITED: Veloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council [2007], NSW LEC 827

DATES OF HEARING: 26/09/08-27/09/08, 01/10/08

APPLICANT Mr P Tomasetti, solicitor Instructed Mr D Balog of D.C. Balog Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms S Duggan Instructed by Ms B Phegan of Mallesons Stephens Jacques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10388 of 2008 Maygood Australia Pty Ltd v Willoughby City Council

JUDGMENT 1 The applicant in these proceedings is seeking to erect a residential apartment building containing 42 units with basement parking for 64 vehicles on the site known as 31 to 35 Devonshire St Chatswood.

2 This appeal arose following the refusal by Willoughby City Council of the development application (DA 635/2007) by Maygood Australia Pty Ltd for the demolition of an existing structure and the construction of a residential flat development. Site and location 3 The subject site is located at 31-35 Devonshire Street, Chatswood. It consists of three allotments on the eastern side of Devonshire Street covering an area of 1988.6 sq. m. On one of the allotments there exists a single storey house, while the remaining two are currently used as a council car park.

4 The three allotments are rectangular in shape, with the exception of the southern most allotment (no 31), which extends a further 4.9 m back towards its eastern boundary. The remainder of the lots are 36.8 m deep. The frontage of the three allotments along Devonshire Street is 52 m. The site falls approximately 3.5 m from the northwest toward the southeast corner of the site.

5 At the northern boundary of the subject site at the end of Devonshire Street is a multi-level car parking station. To the immediate west of the site is a childcare centre and several small-scale buildings. At the rear of the site, to the east, are five single level dwellings, which front onto Claude Street. The remaining areas of Devonshire Street on both sides of the road to the south comprise large-scale apartment buildings. The Proposal 6 The development application consists of three elements: + demolition of existing structures; + construction of a residential flat development of nine storeys containing 42 dwellings plus two basement parking levels for 64 vehicles; and + construction of a driveway, hydraulic works and landscaping works in association with the proposed residential flat development.

Issues 7 A number of the issues were resolved or partly resolved during the course of the proceedings. The issues in contention are summarised below. + Floor space ratio (FSR) The floor space ratio (FSR) of the development is 2.137:1 exceeds the prescribed standard of 1.5:1 as set out at Cl 23 (1) (e) in the LEP. The applicant submitted a SEPP 1 Objection to vary the FSR, however, the Council contends the applicant has not demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case. The relevant controls in the LEP (1995) are clauses 13E and 23:

Clause 13E states: The objectives of the floor space ratio controls contained in this plan are as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to limit the bulk and scale of that development.

The Council shall not consent to the erection or use of a residential flat building if the floor space ratio exceeds:

1.5:1 within Zone 2 (d) + Bulk and scale of the proposed building and site coverage The respondent maintains that the proposal is inconsistent with the established and desired form of development in the locality and the site coverage exceeds Part D3.5 of the DCP. Site coverage is designed to ensure buildings have adequate open space and reasonable privacy provisions. For buildings of 8+ storeys the maximum site coverage is 20%. It was agreed between the planning experts that the proposal has a site coverage of 27.7 %. + Building setbacks The respondent contends that the proposal is inconsistent with the established rhythm of buildings in the context of the streetscape. Further, the non-compliance with building setback controls results in the excessive FSR of the proposal and the bulk and scale of the development is excessive for the subject site. The north face of the proposed apartment facing the multi-level car park is less than the setback provision contained in DCP Part D.3.5. Setback controls in the DCP are 3 m plus 1.2 m per storey above all the ground floors, with the total required setback to apply to all floors from the third floor up. The total setback for a nine-storey building is 12.6 m, applicable to all floors from the 3rd level up. The northern side the garbage room at level 1 intrudes into the required 5.4 m setback by 2.9 m; levels 4 to 9 intrude into the side setback by 6.1 m. + Open space provisions The Council contends the proposal does not achieve the intent of Part D3.6 of the DCP for communal open space:

To provide a range of usable, attractive and accessible landscaped outdoor spaces and recreation areas for the use of the occupants of the dwellings.

To achieve a high standard of amenity in multi-unit housing developments.

In addition, the respondent contends the proposal does not provide an appropriate amount of communal open space as required in Part D.3.6 Control 2 of the DCP (including 47.5 sq m for a children's playground). + Excessive traffic generation and parking spaces The development proposes six additional spaces beyond the requirement of the DCP. The Council also contends the FSR of the development exceeds the controls and the cumulative effect if other sites are developed to the same density/intensity will result in additional traffic volumes . The Council contends that this does not achieve the objectives of 13E (b) that is: to limit traffic generation as a result of development. + Residential amenity and design The respondent contends the proposal is not of good design in terms of SEPP 65 and the future amenity for residents is compromised by the lack of setbacks, building separation distances, and lack of communal open space. Statutory Planning Framework 8 In the Statement of Facts and Contentions the respondent lists the relevant legislation and planning controls, including the following: + State Environmental Planning Policies: State Environmental Planning Policy 1 - Development Standards;

State Environmental Planning Policy 55 - Remediation of land;

State Environmental Planning Policy 65 - Design quality of residential flat development; + Local Environmental Planning Instruments Willoughby Local Environmental Plan (WLEP):

Zoning: Zone 2 (d) - Residential "D" Zone. The site is included in Locality "C" for the purposes of clause 23 of the WLEP .

Clauses 2(b); 2(c); 2(d); 2(e), 2(e); 2(f), 2(i), 2(o);

Floor space ratios - 23(1) (e). + Development Controls Plans: Willoughby Development Control Plan (WDCP)

Part D.3 Multi-unit Housing and Mixed Use Commercial/Residential Development - Aims and objectives 1, 2, 3 and 5;

Part D.3.3 Developments in relation to the streetscape

Part D.3.5 Setbacks Part D.3.6 Open Space Evidence 9 The Court met on-site with the parties and heard from objectors including Mr Morabito, the son of the owner of number 34 Claude St, and Mr Mustica, the part owner of number 42 Claude St. They are concerned that the proposed development would impact on the potential for redevelopment of the sites in Claude Street in the longer term. In the short term they were concerned about impact of the proposed building on the existing cottages in terms of overshadowing bulk and scale and privacy.

10 The Court heard expert evidence on behalf of the applicant from Mr Timothy Rogers, consultant traffic engineer, and Mr Nigel Dickson, architect planner and urban designer. For the respondent, Mr Ian Arnott gave town planning evidence. Joint reports were also prepared and concurrent evidence given by the experts.

11 Mr Rogers and Mr Arnott agreed that the excess parking may not comply with the objectives of the DCP and Mr Rogers recommends that on-site parking be reduced by 6 spaces to comply with the DCP standard to overcome this concern. In evidence Mr Rogers also stated that reducing the car parking by six spaces would also meet with council's DCP objectives. The experts also agreed that the increase in traffic would be minor with a comparison of a complying development to that proposed. They further agreed that the traffic associated with the additional developments on currently undeveloped sites within the locality C, that is three other sites, would cumulatively result in an increase of five vehicles per hour, this includes two vehicles per hour for the subject site. In their opinion this amount of traffic would be minor and the current road system would be able to accommodate this increase. It is noted that the council has not undertaken traffic surveys for the existing car park on the subject site. 12 Mr Dickson and Mr Arnott agreed that the site coverage for the proposal is 27.7% and the council's guideline requires a 20% site coverage. Mr Arnott considers that the reduced setback to the north to the parking station would adversely impact on the public domain of Devonshire Street although he considered the landscaping was satisfactory in a limited setback. He is of the opinion that the reduced setback to the north increases the bulk of the building and does not provide a consistent rhythm in the streetscape.

13 Mr Arnott agreed that while the proposal complies with the residential flat code (RFDC) under SEPP 65 the Council's DCP is more stringent and goes beyond the SEPP. He stated that he was only concerned with the setback to the northern boundary because of the adverse effect on the public domain of Devonshire St. Mr Dickson on the other hand is of the opinion that there are no adverse impacts created by the reduced setback to the car park to the north and the FSR of the development is appropriate in its context and will not be inconsistent with surrounding apartment buildings. In this regard he undertook a visual assessment of existing residential flat buildings. 14 The planners carried out a further assessment of the separation distances and setbacks to boundaries, having regard to the separation distances under the RFDC and the need to have regard to potential redevelopment of the properties at the rear and facing Claude St and the existing apartment building to the south. They agreed that the 'rule of thumb' separation distances in the RFDC could be achieved with the proposed building to provide an equitable sharing of boundary setbacks. However the numeric provisions of the DCP would not be complied with.

15 On the FSR issue, joint conferencing between the planning experts, Mr Arnott and Mr Dickson occurred during the proceedings and the agreed FSR for the development is 2.137:1. The LEP has a standard of 1.5:1.

16 With respect to the objectives of the FSR Mr Arnott stated that the intended character of the area expressed through the LEP controls determines the threshold for the environmental capacity. Mr Arnott also noted that more detailed controls are contained in DCP while the State Government intentions are provided in the SEPP 65 and the Residential Flat Design Code (RFDC).

17 In response, Mr Dickson "believed that the intensity of the development does not exceed the environmental capacity of the site". He contended this is determined by compliance with provisions under the RFDC namely: solar access, natural ventilation, communal areas, acoustic privacy as well as the appropriate fit of the proposal into the existing and perceived future character.

18 Mr Dickson supported his argument by stating that the proposal addresses the requirements of the zone objectives. These broad objectives propose high rise/high density housing close to Chatswood CBD and rail station and that this proposal is consistent with the aims of Locality C in Willoughby Council's High Density Residential Floor Space Map.

19 The planning experts identified that much excess of the FSR related to the non-compliance of the building set on its north side, adjacent to the car park. It was calculated that a 12.6 m non-compliance of the setback on the north face of the development application accounted for 694.35 sq m, which if removed would reduce the FSR to 1.79:1. 20 Mr Arnott contended that non-compliance with the prescribed FSR controls would result in a building with a bulk and scale contrary to the Council's desired future character for the area, which is based on setback and site coverage controls, cf. Veloshin v Randwick Council [2007] NSWLEC 428.

21 Mr Dickson agreed that the findings in Veloshin v Randwick Council [2007] NSWLEC 428 were relevant but noted that the proposed building is well articulated and modulated as a result of its split design and the materials used in construction. These would, he noted assist in reducing the perceived bulk. Assessment and Findings 22 The assessment of the SEPP 1 objection to vary the floor space ratio control is a threshold question. The applicant submitted a SEPP 1 Objection (exhibit B) to vary the FSR standard contained in Division 3, cl 23(1)(e) of the Willoughby LEP from1.5:1 to 2.14:1.

23 In our consideration of the objection the authority of Wehbe v Pittwater Council [2007], NSW LEC 827 is cited. In this decision, Preston CJ stated that there were five different ways in which an objection may be well founded. The applicant relied on two methods outlined by his Honour. The first method is are objectives of the standard achieved, notwithstanding the non-compliance? Under the SEPP the applicant must also demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case. 24 The applicant argued that the objection is well founded and that compliance with the development standard would be unreasonable or unnecessary in the circumstances where the site is adjacent to a multi-storey car park in a regional shopping centre.

25 The objectives of the FSR are detailed in clause 13E of the LEP as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to limit the bulk and scale of that development. 26 Objective to Limit the Intensity of Development The FSR control is intended to limit development so that it does not exceed the 'environmental capacity of the land' while simultaneously ensuring that future use of the land meets the zone objectives. 27 The applicant stated that there is no definition of 'environmental capacity' found within the LEP. However, it was argued by the applicant that (Exhibit B, p. 6): in this instance it is generally [environmental capacity] taken to mean the ability of the site to accommodate the proposed development without passing a threshold level of damage or loss of quality/function deemed unacceptable. 28 The applicant contends that the development is responsive to the surrounding environment and that it (Exhibit B, p. 6): protects the amenity of adjoining dwellings to an appropriate degree and ensures that new residents of the development are provided with adequate solar access, privacy, parking, access and landscaped areas. 29 The second aspect of objective (a) relates to ensuring the development meets objectives of the zone. The specific objectives are outlined in clause 14G Zone 2(d) for the Residential D Zone of the WLEP: ( a) To consolidate high-rise and high density residential flat buildings in selected and accessible locations, and (b) To enable the provision of appropriate communal recreation facilities for use by residents. 30 In addition to the above we note Cl 14D contains general objectives for the "Medium and High Density residential areas in Zones 2(b), 2(c), and 2(d)". These include : (a) to allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network and

(b) to encourage innovative design in providing a comfortable living environment which also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping. 31 The site is also in locality 'C' as identified in Willoughby Council's High Density Residential Floor Space Map earmarked for higher density development.

32 With respect to residential 'D" objective (b) the LEP contains no definition of 'communal recreation facilities'. In favour of the proposal the applicant noted the following (Exhibit B, p. 7) Council does not have separate definitions in the DCP for the terms 'communal areas', 'communal open space', 'recreation area', 'recreation facilities' and 'open space', but similarly, does not have a definition of communal recreation facilities. 33 The applicant argued that the landscape area for the proposal should be included as being available for communal use since it is common open space. The overall landscaped area of the development is 1113.1 sq. m, which is in excess of 50% of the total site. The applicant contends these lands are for communal recreation and are appropriate for this type of development located in a higher density area.

34 Objective 13E (b) Limit Traffic Generation The applicant argues that the proposal will not result in a noticeable increase in traffic generation. The reasons advanced by the applicant can be summarised as follows (Exhibit B, p. 8):

Immediately to the north of the proposal at the end of Devonshire Street is a 6 level car park, owned by Council, leased to Westfield to service their adjoining shopping centre. One single access point to the car park is provided at north of the subject site, meaning that a significant amount of traffic already travels along Devonshire Street, passing directly in front of the site.

35 In addition, more than half the current site is used for the purpose of a 45 vehicle public car park. The development will result in these 45 spaces being removed and replaced with 64 basement car parking spaces, located on two levels. Consequently there will be a net increase of 19 car parking spaces. (We note if the traffic experts evidence is adopted this figure would be 58 spaces and 13 respectively with the deletion of six of these spaces to comply with the WDCP.)

36 The applicant contends that an increase of 19 net car spaces within the context of the adjacent Westfield six story car park is negligible and that any impacts arising from the proposal are likely to go unnoticed.

37 The proposal is located close to the Chatswood town centre and related civic facilities as well as being less than 400 m from Chatswood railway station. Consequently, the applicant contends that given the proximity of these services to the proposal, it is likely that many of its residents will choose to walk, rather than drive, when accessing these services.

38 Objective 13E (c) Limit the bulk and scale of the development In addressing the issue of bulk and scale of the proposal the applicant referred to the distinction made in Veloshin v Randwick Council [2007] NSWLEC 208. bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things.

39 In dealing with the apparent bulk of the building the applicant argues that the vertical and horizontal articulations of the building façade coupled with the use of different material for the buildings central core area would moderate and reduce the perceived bulk of the building.

40 The applicant argues the following should be considered when contemplating the bulk of the proposed development (Exhibit B, p.9): vertical and horizontal articulations of the building façade act in this case to modulate and reduce the perceived bulk of the building. For example the central lobby area is set back approximately 3.4m from the front building line providing a vertical recess which divides the bulk of the building in two. This division is aided by the use of different materials to the central core area than those used on the rest of the building. The core is proposed to be constructed as a curtain wall, with fixed glazed panels. 41 With respect to the scale of the building the applicant contends that it is relevant to compare the height and façade frontage of the development with respect to neighbouring buildings. The subject development has an RL height of 118.7m, and has a facade frontage width of approximately 31.2 m that is similar to nearby buildings such as those found at No 23-29 Devonshire Street (RL 116.4 m; frontage width of 32.6 m); No. 21 Devonshire Street (RL of 119.82 m; frontage width of 24.8 m; No. 16-22 Devonshire Street (RL height of 118.37 m; frontage width of 33.6 m).

42 Consequently, the applicant argues in the SEPP 1 Objection submission that the scale of the building is appropriate and sits comfortably with nearby residential flat buildings. The applicant contends that the development improves the character/aesthetics even if the FSR is higher than that prescribed in the LEP. It was further contended that the area devoted to soft landscaping, enhances the aesthetics of the immediate area.

43 The applicant in applying another Wehbe method of assessment argues that the FSR standards stipulated by the Council have been virtually abandoned when considered in light of developments in the surrounding area. Consequently, it was the applicant's submission that compliance with the standard is unnecessary and unreasonable. The applicant did not calculate actual FSR but instead relied upon 'visible FSR'. These calculations were based upon estimates derived by using a combination of on site physical measurements and building footprint measurements. The applicant calculated that several nearby buildings along Claude Street, Archer Street, Johnson Street, Parkside Lane and Orchard Road all had a visible FSR in excess of 2:1.

Assessment of SEPP 1 Objection 44 We have assessed the SEPP 1 objection in terms of whether the objectives of the standard are satisfied. We do not accept that there is enough evidence before the Court to rely on the alternative method of the standard being abandoned as proposed by the applicant above as this would require extensive and comprehensive analysis as to the date of approvals, including the planning regime at that time, and actual FSR's etc.

45 On the basis of the evidence in our assessment the objective of the standard to (a) Limit the Intensity of the Development the proposal satisfies this objective in accordance with the 'environmental capacity of the land and zone objectives'. We have considered the general and specific objectives of the zone cited above. In our assessment the proposal is consistent and satisfies the general objectives to allow for increased residential density in accessible locations while minimising adverse impacts as well as encouraging innovative design. Clearly the site is in a most accessible location and the efficiency and safety of the road network is not adversely impacted. In our assessment the design provides for comfortable living environments and therefore also satisfies this general zone objective. The specific objective to consolidate high density residential flat buildings in accessible locations and with appropriate communal recreation facilities is also satisfied in our assessment. The communal landscaped areas provide for active and passive recreation appropriate for the development. 46 Indeed, setbacks to the remaining three-sides of the development are compliant and there are no significant impacts arising from this DA with regard to solar access, privacy, parking or access compared to a proposal that meets the WLEP FSR controls.

47 The landscaped area of the development exceeds 50% and is not dissimilar to adjoining developments. It was agreed by the planning experts that the site coverage of the building is 27.7 %, which is in excess of the 20 % in the WDCP controls, D3.4. The intent of this control is to maintain a high standard of amenity for multi-unit residential dwellings by controlling the proportion of site that may be covered by buildings to achieve adequate open space and reasonable privacy.

48 We find that the open space provision of the proposal is satisfactory and will be complemented by the facilities in the area. For example, directly across the road behind Tingha Street to the west there is a small park; approximately 245 m to west of the site is Chatswood Park; 800 m to the east is Bales Park; to the south at approximately 1.5km is Artarmon Reserve, and to the north at approximately 1 km is Beauchamp Park. 49 Mr Arnott calculates the proposed communal open space to be some 882 sq m (including 47.5 sq m for a children's playground), whereas 1080 sq m is required under the WDCP. In our assessment given the location of the proposal we are satisfied this is adequate in the circumstances.

50 With respect to the general objectives of the zone for the land there are State Government and Council documents that identify Chatswood as a major regional centre and more specifically this and other sites in close proximity of the Chatswood centre for higher residential densities. In regard to broader strategic planning objectives, the proposal is in keeping with the aims and objectives of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) - Regulation 3, which seeks, inter alia, to: (1) (h) to allow high density residential development to occur so as to give effect to urban consolidation objectives, and (i) to encourage additional residential development which may support public transport use, shopping and recreational facilities as well as contribute to the vitality of the Centre, particularly outside normal business hours, and (2) (a1) Zone No 2 (d)-Residential "D": to consolidate high rise and/or high density residential flat buildings in selected and accessible locations.

51 13E Objectives of floor space ratio controls (b) to limit traffic generation Mr Rogers noted that the proposal would result in 2 cars per hour (peak) under a non-compliant development. In the joint statement, Mr Arnott agreed with the statement that the current road network has the capacity to cope with the traffic generated. 52 The traffic experts agreed that future developments within Willoughby Council's High Density Residential Floor Space Map Locality C Floor Space map would produce an increase in traffic beyond that expected within the controls but that would be within the capacity of the road system.

53 In regard to the applicant's submissions and the expert evidence in relation to the SEPP 1 Objection 'to limit traffic generation', we have determined that there is not likely to be any significant traffic impact arising from the FSR proposed. Indeed, Mr Arnott for the respondent noted in his amended statement of evidence at paragraph 90: I do not consider it likely that the proposed development would generate any specific unacceptable traffic-related impact.

Although Mr Arnott qualified the above statement by saying that while the impacts would be minor in their own right, the impact is likely to be significant when considered on a cumulative basis bearing in mind future, other possible non-compliant developments in the vicinity. However on the experts evidence even with the additional traffic movements of five this objective is satisfied 54 We consider that the proximity of the proposed development to Chatswood's CBD, retail centre, and nearby rail station means that the site is ideally located and the objective (b) of the FSR controls is satisfied.

55 13E Objectives of floor space ratio controls (c) to limit the bulk and scale of that development The applicants submission with respect to the bulk and scale argues that the proposed building is similar to other multi-dwelling residential flats immediate neighbourhood with respect to its bulk and also its scale. In this regard, it is relevant to consider the question posed by Roseth SC in Veloshin : "does the proposal fit into the existing character of the area?" 56 With regard to this third objective, we are agreed in the circumstances of this case the design of the proposed building limits the bulk and scale this objective is also satisfied.

57 With respect to the general objectives of the zone for the land there are State Government and Council documents that identify Chatswood as a major regional centre and more specifically this and other sites in close proximity of the Chatswood centre for higher residential densities. In regard to broader strategic planning objectives, the proposal is in keeping with the aims and objectives of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) - Regulation 3, which seeks, inter alia, to: (1) (h) to allow high density residential development to occur so as to give effect to urban consolidation objectives, and (i) to encourage additional residential development which may support public transport use, shopping and recreational facilities as well as contribute to the vitality of the Centre, particularly outside normal business hours, and (2) (a1) Zone No 2 (d)-Residential "D": to consolidate high rise and/or high density residential flat buildings in selected and accessible locations. 58 In our overall assessment the objectives of the standards are satisfied. The SEPP 1 objection is well founded. The proposal is also consistent with the aims of the Policy and the objects of the Act in particular for orderly and economic development consequently, the SEPP1 objection is allowed.

59 In our assessment the SEPP 1 objection to vary the floor space ratio should be allowed. The objectives of the standard are satisfied and the objection is well founded. The proposed development satisfies the aims of the SEPP and the objects of the act in particular orderly and economic development is promoted by the variation. in terms of Cl 8 of the SEPP non-compliance with the standard is consistent with the established and draft regional and State policies and the variation should be allowed in the circumstances as the objectives are also satisfied. In our overall assessment the SEPP 1 the proposed development is at least equal to a complying development.

Merit Findings 60 In assessing and accepting the applicant's SEPP 1 objection, several of the Council's issues and contentions relating to the development proposal have been considered. In regard to the FSR, we have found that although the proposed development exceeds the controls, the outcome of the proposal would be a building in keeping with the zone 2(d); it is located within the area earmarked in Willoughby Council's High Density Residential Floor Space Map and is well positioned in regard to the objectives of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) - Regulation 3.

61 We note that a significant majority of the excess FSR relates to the incursion of the north face into the building setback controls (WDCP Part D, 3.5; paragraph 58). This area of the development does not intrude into other neighbouring residential space; rather, this section of the proposal abuts the six storey car park at the end of Devonshire Street.

62 Issues of contentions relating to building ventilation and acoustics on the north face of the proposal were dealt with by way of modifications to the building during the proceedings. The parties agreed these amendments should form conditions of consent.

63 However we are not satisfied that the first floor terrace adjacent to Unit 8 over the waste station is appropriate, it adds unnecessarily to the height and perceived bulk of the building and landscaping it is an incursion into the setback area. Furthermore it heightens the sense of proximity to the car park from the living area of Unit 9. Further, there is adequate private open space provided with the balconies for each unit. Therefore this aspect of the development is to be deleted with amended plans as part of a deferred commencement.

64 The impacts of non-compliance of the proposal's site coverage (27 % as opposed to 20 % as per Part D3.4 of the WDCP) and the associated communal open space issues have been dealt with above. In addition, the related issues of FSR, environmental impacts and bulk and scale of the proposal have been addressed within the assessment of the applicant's SEPP 1 objection.

65 Finally, we turn to the resident objections and concerns relating to the proposal. We accept the solar access evidence provided by Mr Dickson for the applicant. Mr Dickson demonstrated that the development would not affect significantly the rear of the properties along Claude Street, particularly in the late afternoon. In addition, the issue of boundary setbacks was addressed during proceedings with regard to Part D3.5 of the WDCP. It was accepted by both parties that the setbacks from the boundary could be equally shared between the subject site and the properties number 34 to 42 along Claude Street of Chatswood to comply with the separation distances in the RFDC. Consequently, because the issues of setbacks and solar access have been adequately dealt with, we do not consider that this proposal will sterilise future potential development along the aforementioned lots of Claude Street.

66 We have made the DCP a central focus and fundamental element in our assessment and while there are numeric non-compliances for setbacks on a holistic reading of this comprehensive DCP we have determined that the non-compliances are justified having regard to the overall merits of the proposal in the context of its location and in the streetscape. We are of the opinion that the reduced setback to the north is appropriate given the zone interface and the existing dominant car park structure, a major constraint. In particular the proposed development is not inconsistent with the intent of the setback provisions of the DCP in section D.3.5 Furthermore, the public domain is in no way adversely impacted by the proposal.

67 In terms of the rhythm of Devonshire Street this is read in the context of the residential unit blocks and the separation distances between same and the proposal is consistent. The rhythm is abruptly halted and overwhelmed by the car park structure. The design in our assessment with the landscaping and provision of canopy trees will make a positive contribution to this residential precinct and the units will provide an acceptable amenity for the future residents having regard to its juxtaposition with the car park. 68 Acoustic and ventilation matters raised during the proceedings related to the non-compliance of the northern setback. The applicant noted that ventilation issues be ameliorated by adding in windows to the north side of the building that could be opened to facilitate appropriate airflow through the building. In addition, acoustic-glazing treatments could be added to the building to mitigate additional vehicle noise from the car park. These latter two matters were dealt with subsequently by proposed conditions of consent.

Conditions of consent 69 Following the hearing the Respondent and the Applicant provided written submissions on the conditions. There are a number of conditions where the parties are not in agreement some of which were not ventilated during the hearing.

70 In concluding that the proposed development should be approved our assessment and consideration has been on the basis of the imposition of the conditions as follows. 71 The deferred commencement condition on contaminated land and the need to satisfy the requirements of SEPP 55 prior to the consent operating in our opinion is an appropriate condition and should be imposed by way of a deferred commencement. The requirement for further site investigations should be completed prior the consent operating.

72 We have also determined that the deferred commencement conditions include the need for amended architectural plans and amended landscaping plan and hydraulic plans to ensure they are consistent with the architectural plans. In our assessment the deck above the garbage room should be deleted and the garbage room to be a maximum of 3 m in height from finished ground level. Unit no 8 has the benefit of a balcony and the amenity of the deck over the garbage room would be diminished by the multi-storey car park station. On balance we have considered that the location of the garbage room into the setback area adjoining the car park is satisfactory but the introduction of a deck would be a more obvious intrusion with a greater height and it is considered that it is unnecessary.

73 Other amendments to the architectural plans are also included in the deferred commencement as this provides for greater certainty in the carrying out of the development. Similarly the requirement for an amended landscape plan is necessary as a deferred commencement condition as opposed to such details being left to the PCA for approval. 74 The additional deep soil planting area by the removal of six car parking spaces is to also to be addressed in the deferred commencement plans. While the increased density is considered to be appropriate in a regional centre well served by infrastructure and facilities increasing the car parking to above that required by the Council's DCP is considered inappropriate as it is well located with access to public transport and demand management for parking is appropriate in this location. This is in accordance with the evidence of both the Applicant and Respondent.

75 The deferred commencement condition that refers to the need for the storm-water construction plans and hydraulic plans to be consistent with the architectural plans has been retained. We note the Applicant's comments that the plans submitted are listed in the condition 2 none the less the amended landscape and architectural plans may have flow on effects to the engineering plans as such the condition remains.

76 The condition for the dilapidation report of Council's property has been deleted and the additional words added to the condition requiring a dilapidation report of adjoining properties as required by the Council. 77 The car parking allocation condition referring to 58 car parking spaces remains as six car parking spaces are deleted from the proposed development.

78 The condition requiring a Positive Covenant on the title in favor the Council for storm water maintenance operations is included as it is not unreasonable and common place condition for such development.

79 The condition for the reuse of rainwater for toilet flushing is imposed and we accept Council's comments that the hydraulics proposal relies on rainwater reuse to reduce OSD requirements. Furthermore this is consistent with water conservation and sustainable development initiatives. 80 The requirement containing the condition to paint the car park ceiling white is imposed and appropriate to minimize energy use.

81 The other conditions are as generally agreed to between the parties.

82 Accordingly the orders of the Court will be: i) The appeal in respect of the property known as 31-35 Devonshire Street Chatswood is upheld.

ii) The SEPP 1 objections to vary the standards of the FSR in clauses 13E and 23 of the LEP are allowed.

iii) The development application (635/2007) submitted to Willoughby City Council and as amended is determined by the granting of consent subject to the deferred commencement conditions and other conditions in Annexure A.

iv) The exhibits are returned to the parties with the exception of B,C, G, 1and 9.

          J S Murrell M P Taylor
          Commissioner of the Court Commissioner of the Court

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Judgment (86 paragraphs)

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