Michael Murr V Georges River Council [2017] NSWLEC 1369

The evidence on the development

1. Experts were appointed by both parties in the areas of traffic engineering, town planning and urban design.
2. Through joint conferral of these experts, and with various modifications to the application as a result of that conferral, all experts agreed that there were no remaining Council contentions warranting refusal of the application.
3. In this regard, the amended basement, access and parking arrangements satisfied the traffic experts who agreed that, notwithstanding objectors' concerns in terms of limited onstreet parking and traffic issues in Plant Street, the development complied with the required parking and access arrangements. Further, there were no concerns with the safety of pedestrians or cars in Plant Street or with the capacity of the local road system to cope with the additional traffic generated by the development. As a consequence, no expert evidence, beyond the joint report prepared by the traffic experts (Exhibit 9), was provided on traffic or parking matters.
4. Similarly the four urban designers and planners engaged by the parties (the design experts) prepared a joint report (Exhibit 8) which concluded that all of the Council contentions with regard to planning and urban design matters had been addressed by modifications to the application and there were therefore no remaining design matters warranting refusal of the application.
5. Notwithstanding the agreement of the design experts that the design contentions raised by the Council had been addressed, additional evidence was sought by the Court from these experts on the issues raised by neighbouring residents.
6. In addition to the relevant planning and technical controls, the design experts had considered the following key issues in the appeal: 1. visual impacts in relation to streetscape quality and compatibility with smaller scale residential neighbours 2. residential amenity within the proposed development in terms of both apartments and common areas 3. amenity impacts for the immediate residential neighbours at 21 Plant Street and 405-407 Princes Highway 4. the isolation of 21 Plant Street.
7. In terms of visual impact and the compatibility with residential neighbours and the streetscape, the experts agreed that the amended plans demonstrated positive responses to the primary issues that the Council had raised with the application. In particular, the amended application had reduced heights of exterior walls facing 21 Plant Street and the western portion of 405-407 Princes Highway which complemented the tapering alignments of the northern and southern facades and accommodated progressive increases in building separation and deep soil landscaping towards the western boundary.
8. The experts also considered that the streetscape presentation had been enhanced by reconfiguring the building form and redesigning facades in order to eliminate a bulky appearance and achieve modulation which contributed to the streetscape compatibility and quality. This was enhanced by landscaping within the street setback and increased setbacks to residential neighbours.
9. In terms of the residential amenity for future occupants of the building, the experts noted that apartment layouts had been rationalised and reconfigured so that all habitable rooms had sufficient amenity and outlook with all apartments save one being oriented toward the rear or street rather than overlooking residential neighbours. Further, the open space which had been proposed above the basement and consequently overlooked the rear yard of 21 Plant Street had been eliminated and the rooftop communal area relocated with fixed planters along western and southern edges to prevent overlooking of neighbours.
10. In terms of other amenity impacts for neighbours, the southern and western setbacks accommodated screen planting and deep soil landscaping to prevent ground level overlooking and west facing windows of living rooms had been narrowed with translucent glass fitted to specific windows to reduce potential privacy impacts. In addition to fixed planters to protect privacy of neighbours, the rooftop communal open space had been reduced to restrict the size of potential gatherings and was located to provide the ability to manage this area given the proximity to penthouses within the proposed development.
11. Finally, the midwinter shadow impacts which most affected the townhouses at 405-407 Princes Highway were within acceptable levels albeit that two townhouses would still have midday sunlight restricted but would continue to receive 2 to 2.5 hours of sunlight daily to living room windows and at least half of the principal private open space areas.
12. The proposed development has a height in the order of 13 m at the rear where it is in closest proximity to 21 Plant Street and the townhouses to the west. At its lowest height of 12.93 m, the building is more than 2 m below the maximum height permitted in LEP Amendment 2 in recognition of the proximity and circumstances of the dwellings at 21 Plant Street and 405-407 Princes Highway.
13. The building breaches the 15 m proposed control by some 1.48 m to accommodate the lift overrun however, the applicant argued, and the experts agreed, that this was in the centre of the site where no amenity impacts arose. A further breach of the height to 16.23 m was proposed in the south western front portion of the site adjoining the highway resulting from the need to meet minimum flood planning levels. The applicant argued, and the experts agreed, that this breach did not result in unacceptable amenity impacts for neighbours and was offset by the benefits arising from the reduction in height proposed at the rear.
14. However, Mr Cole submitted that breaching the 15 m height control proposed in LEP Amendment 2 would set an undesirable precedent being the first development approved under these new controls yet not complying with them. Although he accepted a clause 4.6 request was not required under the (then) current LEP, Mr Cole argued that the considerations under cl 4.6 should be applied given the applicant sought to rely on the proposed controls in Amendment 2. He argued the applicant was 'double dipping' by seeking the development benefit of the new controls proposed under Amendment 2 but also exemption to having to justify variations to these controls relying instead on the provisions of the existing LEP.
15. Mr Cole reinforced the claims by Mr Asanatov that there was limited if any real prospect of any of the other surrounding properties in the R3 Precinct being redeveloped given the nature of existing development and notwithstanding the controls proposed in LEP Amendment 2.
16. Mr Cole argued that the development should provide a more appropriate interface with its neighbours given the change in controls for these properties and that it was unlikely that they would be redeveloped in the foreseeable future. He referenced Click here to enter text.Seaside Property v Wyong Shire Council [2004] NSWLEC 600 which deals with development at the interface between zones. At [25] Bly C states: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
17. Mr Gough argued that the adjoining sites were in the same zone and therefore Seaside did not apply. In any event, transition had been provided for by the reduction in the height of the development at the rear immediately adjoining its residential neighbours and in the generous setbacks and landscaping provided. He also argued that the provisions under LEP Amendment 2 already provided for transitioning in the differing controls for the subject site relative to the adjoining properties in the same zone given that these properties had a lower height limit and FSR in LEP Amendment 2.
18. The Council sought a further reduction in height from 4 to 3 storeys adjoining 21 Plant Street and proposed a condition of consent requiring the deletion of the most north westerly apartment to achieve this albeit the design experts did not consider such further reduction in height warranted. The experts acknowledged that such a reduction would likely improve the amenity for the occupants of 21 Plant Street but agreed it would not necessarily have a beneficial streetscape outcome. The applicant also argued that the third storey would be of a similar height to the ridge of 21 Plant Street so it would not be transitional.
19. The applicant's experts argued that there were no material impacts on 21 Plant Street in terms of overshadowing and overlooking. In this regard, the development included fixed planter boxes for the edge of the elevated communal open space, translucent glazing for west facing windows and privacy screens where required. Furthermore, the proposed southern setback (to 21 Plant Street) was well in excess of that required by the Apartment Design Guide (ADG) and the retention of the Norfolk Island pines and the proposed landscaping situated in this setback at the front of the site would assist with minimising the impacts on 21 Plant Street and in terms of streetscape impact.
20. The design experts agreed there would be some overshadowing of the adjoining townhouses at 405-407 Princes Highway but that the minimum solar access requirements of the relevant controls could still be met. The applicant nevertheless offered to shift the building a further 900 mm from the western boundary to reduce this overshadowing. This modification would result in a slight reduction of floor space and in the rooftop communal open space and a slight increase in the ground level open space, and improve the outlook from the rear yard of 21 Plant Street. It would also further distance the front balcony of the development from the front yard of 21 Plant Street being closer to the street.
21. The applicant argued that, other than two minor height breaches away from neighbours which were offset by a lowering of height elsewhere on the site, the development was compliant with all relevant controls in LEP Amendment 2 including with the FSR, all setbacks, provision of deep soil landscaping and landscaped site area. Two more parking bays were proposed than were required. Further, through LEP Amendment 2, the Council had effectively 'upzoned' the site to achieve the outcome proposed by this application having full regard to the controls applying to, and circumstances of, the adjoining residential properties.
22. Therefore the applicant argued that the development clearly reflected the desired future character of the site and the area as envisaged by the impending controls in LEP Amendment 2.
23. In submissions, Mr Gough argued that, whilst there would be inevitable impacts associated with the proposed development, the Court could not reasonably conclude that the impacts were unreasonable. In particular, in terms of the adjoining residential neighbours, there was no unreasonable overshadowing or overlooking. Whilst there may be some limited overlooking from the communal open space this was not unusual in an urban environment and the applicant had offered to increase the width of the planter boxes so that this would now be unlikely to occur. There were also now significant distances proposed between the communal open space and the rear yard of 21 Plant Street and the communal open space that had been of concern on the ground floor had been deleted.
24. Finally, Mr Gough re-iterated that the setbacks and height on the rear portion of the building closest to neighbouring residential properties complied with LEP Amendment 2 and the ADG and there was extensive landscaping including to 21 Plant Street. The further height reduction sought by the Council was not supported by any of the design experts, nor had it been the subject of any expert evidence. Nevertheless, the applicant had offered to increase the upper level setback to the townhouses to further minimise overshadowing impacts. He also argued that the owner of 21 Plant Street must accept that the controls allow the form of development proposed having regard to a similar finding in Seaside.
25. In relation to the site isolation of 21 Plant Street, it was noted that valuations have been prepared for the site and offers made by the applicant to purchase the site prior to the application being lodged but these offers were not accepted.
26. The site at 21 Plant Street is 18.9 m wide and has an area of some 546 m². It contains a relatively recent dual occupancy development in semi-detached two-storey configuration. As a development site it would not meet the LEP minimum lot requirements for RFBs in the R3 zone or for multi dwelling housing or dual occupancies. The LEP also requires a minimum frontage of 20 m for multi dwelling housing and RFBs.
27. The design experts disagreed on whether 21 Plant Street could feasibly be redeveloped for an RFB given it was in dual ownership, had restricted ability to provide offstreet parking or comply with side setback or site area or frontage requirements, and was adjoined by lower density dwellings to the north and the proposed higher density development of the appeal site to the south.
28. It was noted however, that 21 Plant Street is not part of an amalgamation precinct and was in fact excluded from specific site amalgamation requirements of the DCP. The planning experts agreed that, whilst under the minimum lot size and frontage controls for an RFB, an RFB could in fact physically be developed on the site given its width and dimensions and having regard to likely applicable setbacks.
29. Whilst there was no expert evidence on whether redevelopment of 21 Plant Street for an RFB would be economically viable, the experts noted that, given the value of the current dual occupancy, it was not likely to be currently feasible to demolish it and construct an RFB given the proposed FSR of 1.0:1 for the site under LEP Amendment 2.
30. The planning experts concluded that the amalgamation of 21 Plant Street with the appeal site was not feasible because it was not reasonable to expect an adjoining owner to pay significantly more than the current market value for a site with limited benefit in terms of FSR and site area. However, they remained of the opinion that a 4 storey RFB could be constructed in the future were it feasible which would provide a suitable transition to the R2 zone to the west.
31. The planning experts also considered that there was a benefit to the streetscape and to the outlook from the adjoining townhouses in having a split built form as opposed to the built from fronting Plant Street that would occur if 21 Plant Street was amalgamated and developed with the appeal site.
32. Finally, Mr Gough noted that it would be unusual for a planning control to require amalgamation of sites which had different height and FSR controls as was the case with the appeal site and 21 Plant Street.
33. Mr Layman, planner for the applicant, argued that 21 Plant Street and the existing townhouses to the west could also be extended to accommodate additional storeys or attic extensions in accordance with the proposed new controls in LEP Amendment 2 even if the redevelopment of these properties was unlikely. This as a likely outcome of the controls introduced by LEP Amendment 2 was not supported by the other experts.

The Council's submissions

1. The Council referenced the Court's decision in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 where cl 1.8A existed as it did prior to the change proposed in LEP Amendment 2. In that decision, Craig J interpreted cl 1.8A as ambulatory, that is meaning that even if an LEP Amendment did not contain a savings provision, an application lodged prior to the amendment would still be 'saved' from any new LEP provisions by cl 1.8A. However, this interpretation was overturned by the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 finding cl 1.8A (as it then was), was not ambulatory. Therefore if an amendment to an LEP also did not have a savings provision, the LEP was amended on its terms and applications lodged prior to the amendment would need to be determined under the current law. This was seen to give rise to procedural unfairness to an applicant. It was suggested by the Council that this is why LEP Amendment 2 also introduced cl 1.8A(2).
2. Mr Cole submitted that the amendment to the LEP did not prohibit the development in terms of the use. Furthermore there was no restriction on the Court determining the application either by conditioning the development to achieve compliance with the controls in the LEP as amended or by refusing the application given the non-compliance with the height standard and the lack of a cl 4.6 request and assessment.
3. Specifically, it was the Council's submission that cl 1.8A of the LEP as it exists now should be interpreted such that the currently applicable height limit applies to the development application and a cl 4.6 objection would need to be upheld for the Court to grant consent to the application. Alternatively, the Court could determine to grant partial consent or grant consent subject to conditions which removed the height breach, or the applicant could elect to amend the application to remove the breach.
4. Mr Cole referenced Sutherland Shire Council v Benedict Industries Pty Ltd (No.8) [2017] NSWLEC 4 where Justice Pepper considered the principles relevant to the interpretation of legislation including planning instruments: [388] Thus, the task of construction must begin with the consideration of the text itself with recourse to its context, which includes the general purpose and policy of a provision, and of the enactment itself. [389] The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material. [390] The task is one of ascertaining the objective, and not the subjective, intention of those who promulgated the legislation …

(2005) 142 LGERA 104

[2017] NSWLEC 4

[2016] NSWCA 189

[2005] NSWCA 337