[2009] NSWLEC 153
Groeneveld v Wollongong City Council (2009) 168 LGERA 260
[2009] NSWLEC 149
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
[2003] NSWLEC 154
Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2009] NSWLEC 153
Groeneveld v Wollongong City Council (2009) 168 LGERA 260[2009] NSWLEC 149
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256[2003] NSWLEC 154
Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (17 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal against Canterbury-Bankstown Council's deemed refusal of Development Application No. 401/2020 (DA). The DA is for a mixed use development at 36 Floss Street and 118 Duntroon Street, Hurlstone Park, legally described as Lots 3, 4 and 5 in DP 6709 (site).
[2]
The proposal
The application before the Court, as amended, seeks consent for a mixed use development comprising ground-floor commercial premises (indicated on plans as two separate retail premises) and, for the most part, a boarding house development occupying two levels above. The boarding house would comprise 33 boarding rooms located on two upper levels, a communal room and (double) manager's room at the ground level. The basement would accommodate car parking and certain services areas. The proposal also involves landscaping within the site.
[3]
The site and setting
I would note here that for the descriptive material that follows, I rely on the Amended Statement of Facts and Contentions prepared by Canterbury-Bankstown Council (Council) (Ex 1).
The site has a total site area approximately 1119m2, and is located on the south-eastern side of a bend in the road where Duntroon Street merges with Floss Street. It has a primary combined frontage of 33.53m to Duntroon Street and Floss Street. The site is quite level and is generally cleared.
Exhibit 1 (p 3) provides a useful summary of the site's setting and it is reproduced as follows:
"5. To the north east of the site, opposite Floss Street, is Hurlstone Park Railway Station.
6. Adjoining the site to the north is a single storey building which forms the start of a small grouping of commercial buildings directly opposite the railway overpass.
7. The central building in the group (30 Floss Street) is two storeys with a tall stuccoed parapet which gives it an equivalent height of 9.5m.
8. To the south of the site is an interwar period two storey residential flat building (124 Duntroon Street) which is setback from the street and has a pitched roof.
9. Further to the south the form of development is characterised by single storey residential dwellings that are characteristic of the proposed HCA.
10. To the south-east (rear) of the site is R3 Medium Density zoned land characterised by a mix of single and two storey residential dwellings."
[4]
Canterbury Local Environmental Plan 2012
The site, along with land to the immediate north and northeast, is zoned B2 Local Centre pursuant to Canterbury Local Environmental Plan 2012 (CLEP). It is not contested that development for each of the proposed uses, being commercial premises and a boarding house, are permissible with consent in the B2 Zone. Clause 2.3 requires me to have regard to the objectives of the B2 zone which are as follows:
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling. • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
The proposal would contravene the maximum building height control under CLEP. The site is subject to a maximum building height of 9m. The proposed building height is up to 11.1m, a 2.1m contravention. Clause 4.6 of CLEP provides that consent may be granted for development even though it would contravene a development standard, if certain pre-requisites are met. I will return to this later.
The site is located within the recently gazetted Floss Street Heritage Conservation Area (HCA). The subject site is also in the vicinity of the Crinan Street Shops Conservation Area, and the following locally significant heritage items identified in Sch 5, Pt 1 of CLEP (Joint Heritage Expert Report, 8 April 2021 (Ex X) p 3):
Clause 6.2 requires me to consider a list of matters relating to earthworks before granting any consent. I have relied on the agreed without prejudice consent conditions in my consideration of this issue.
[5]
Other policy instruments
The provisions of Div 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) apply to the application. I am mindful of the provisions of cl 29 (in regard to certain development standards that cannot be used to refuse consent) and cl 30 (in regard to certain development standards established as prerequisites for any consent to boarding house development) in the evaluation of the application.
The parties agree that points of concern do not arise in regard to either cl 29 or 30 of the Affordable Housing SEPP, and I agree. I note that I am satisfied that the standards for boarding houses prescribed at cl 30 of the SEPP are relevantly met. Clause 30A of the SEPP has pertinence requiring me to consider whether the design of the proposed boarding house development is compatible with the character of the local area. This comes into contention in the evaluation.
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) also applies. Clause 7 requires a consent authority to consider whether the land is contaminated. There were no contentions in regard to contamination. I have considered whether the site is contaminated and accept the position outlined in the statement of environmental effects accompanying the application (Ex A Tab 4 p 14) that, given the understood historical residential use, no further consideration is required under SEPP 55.
Canterbury Development Control Plan 2012 (CDCP) also applies. It is noteworthy that amendments to CDCP, dated 11 December 2020, included certain provisions related to the making of the Floss Street HCA (with Amendment 21 to CLEP). CDCP includes a savings provision and, as far as the current DA assessment is concerned, the provisions included as of 11 December 2020 are to be considered as if they had not commenced (Ex 5 Tab 3 p 181).
[6]
Issues
While Council had initially raised many more contentions, those remaining at the commencement of the hearing, after prior leave had been granted to amend the application, involved three issues:
1. Heritage conservation, and related local character compatibility implications
2. Building height, given the contravention of CLEP
3. The public interest, given the extent of lay submissions objecting to the proposal.
Town planning expert evidence was provided by A Betros (for the Applicant) and B Steedman (for Council). Heritage conservation evidence was provided by J Oultram (for the Applicant) and S Charamlambides (for Council). Traffic related evidence was provided by M Logan (for the Applicant) and S Sritharan (for Council).
[7]
Heritage conservation and local character implications.
Council had contended the DA should be refused because the proposal would have an adverse effect on the heritage significance and character of the Floss Street HCA. Clause 5.10 of CLEP is concerned with heritage conservation, and subcl (4) requires me to consider the effect of the proposed development on the heritage significance of this HCA. Council linked this concern with the requirements of cl 30A of the Affordable Housing SEPP (see [11]), which requires me to take into consideration whether the design of the development is compatible with the character of the local area.
There were a series of particulars raised in Council's contentions which are reproduced below:
"a) The proposal does not maintain the established and desired spatial proportions and visual curtilage of the site or streetscape due to the characterised by the HCA, which includes a provision to reduce the maximum building height to 9m.
b) The proposed development fails to achieve a building envelope that positively complements and contributes to the existing and future streetscape character of the HCA and broader setting of Hurlstone Park.
c) The bulk and massing of the development dominates the streetscape as seen in long views to the site, particularly from Crinan Street given the orientation of the site. This is particularly evidenced by the vast blank northern wall that is highly visible from both Crinan Street and Floss Street.
d) The height and scale of the development is visually incompatible and excessive with the immediate buildings adjacent to the site and broader context and exceeds the height datum established by 30 Floss Street as identified in the findings of Vasiliades v Canterbury-Bankstown Council (2017) NSWLEC 1514.
e) The building is poorly resolved at the change in direction from Floss Street to Duntroon Street that aggregates to create a poorly resolved elevation and street edge.
f) The large expanses of glazing on the ground floor do not respond to the commercial heritage character of the area, particularly in relation to solid to void ratios.
g) The finishes and colours adopted for the development do not complement that predominant found in the area which is dominated by Federation and Inter-War period buildings."
Lay submissions also raised concerns in regard to heritage and local character compatibility. The submissions were generally aligned with the concerns raised in the contentions listed above, suggesting the bulk and scale of the proposal were excessive, overbearing and out of context. The proposal was seen to dominate the local streetscape, including in regard to adjacent and nearby listed or contributory buildings (in terms of heritage conservation). But the broader setting of the Hurlstone Park local centre was also raised (that is both sides of the railway line and within the station itself), with the proposal seen to be at odds and incompatible in regard to height and scale, and mindful of the prevailing character of shopfronts.
[8]
Amendments to the proposal
At the commencement of the hearing, leave was granted to amend the application, further, in regard to certain particulars of the street elevation aimed at addressing points raised in the joint report prepared by heritage experts (Ex 2).
During the course of the hearing, in particular during cross-examination, there was considerable further attention to the particulars of the shopfront detailing (solid to void configuration, sectional width of the lower panel, additional piers) and the treatment of the change in direction from Floss Street to Duntroon Street, including relocation of the upper windows to centre on the openings to the ground floor, and the general setback and architectural treatment of the top floor.
As it seemed likely that further discussion of alternatives between the experts might efficiently address matters at issue, and mindful of the Court's Conference of Expert Witnesses Policy (par 26), I directed the heritage experts conference further. A supplementary joint report was prepared (Ex 13).
While Mr Outram did not believe all the proposed changes were necessary, sketches were prepared by the heritage experts, in essence, demonstrating a building configuration with which they would both be satisfied. The Applicant expressed a willingness to amend the application to accord with the requirements of Ex 13. Amending plans were prepared and circulated to the experts to consider whether their requirements had been satisfactorily addressed. In a further supplementary joint report dated 28 April 2021, the experts indicated that "the amended drawings appropriately address the proposed design changes noted above and that the contentions raised by Council (in Ex 1) in regard to heritage and streetscape issues are satisfied".
In its closing written submissions received on 17 May 2021 (CCS), Council accepted that the heritage contention had been resolved, "including compatibility", were leave to be granted to allow the applicant to rely on the further amended plans (CCS par 36). The final orders grant leave to amend the application in accordance with these amending plans.
I will return to the question of heritage and character compatibility in drawing my conclusions.
[9]
Height
Under cl 4.3 of CLEP, the site is subject to a maximum building height of 9m. A maximum roof height of 11.1m is proposed, a 2.1m contravention.
The Applicant is seeking an exception for the contravention of the development standard under cl 4.6(2) of the CLEP, which provides relevantly as follows:
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...
The permissive power in cl 4.6(2) of CLEP is subject to the restrictions in subcll 4.6(3)-(5):
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating -
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless -
(a) the consent authority is satisfied that -
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Planning Secretary has been obtained.
(5) In deciding whether to grant concurrence, the Planning Secretary must consider -
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]). The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
[10]
Whether compliance is unreasonable or unnecessary
The applicant's written request submitted, pursuant to cl 4.6(3) of CLEP, was prepared by ABC Planning and dated April 2021 (Ex J). Exhibit J first seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). Exhibit J uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of the height standard.
The objectives of the building height standard are as follows (CLEP, cl 4.3(1)):
(a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space,
(c) to support building design that contributes positively to the streetscape and visual amenity of an area,
(d) to reinforce important road frontages in specific localities.
In regard to objective (a), Ex J notes that the greatest contravention (2.1m) is at the rear or north-east corner of the building. This breach is not seen to generate any adverse visual bulk or amenity impacts to any public vantage point nor from any surrounding property (including those addressed to Starkey Street). Exhibit J points to the 6.4m wall height to the front (streetscape) façade, of particular note in character terms, suggesting it to be entirely compatible with the desirable attributes and character of this area, particularly given the nearby contravening buildings at 30 Floss Street and 124 Duntroon Street (adjacent to the south). The contraventions presenting towards the front of the building include a 0.7m contravention at the north-west corner and a 0.5m towards the centre of the building. These elements are further setback from the streetfront. This satisfies me that the proposal achieves objective (a).
In regard to objective (b), Ex J relies on an accompanying solar analysis (reproduced Ex J p 11-12). Of most concern is the impact on 124 Duntroon Street directly to the south of the site, with Ex J noting the considerable side boundary setback (6m for that portion of the building most significant in solar access terms) and the general vulnerability of this south facing building. Exhibit J indicates solar access is maintained to the 2 north-facing unit windows within 124 Duntroon Street for 6 hours (upper unit) and 3 hours (lower unit). While, during the site inspection, it was suggested that a lower level window more to the rear of the units at 124 Duntroon Street was more relevant for solar access consideration, I am satisfied that Ex J has demonstrated that objective (b) has been achieved, in the circumstances, with its setback configuration and the overall vulnerability of the lower level windows at 124 Duntroon Street.
In regard to objective (c), Ex J suggests the design qualities of the proposal ensure a positive contribution to the streetscape and visual amenity of the area. The detailing of the streetscape façade and recessing of the upper level are highlighted along with the fact that the contraventions, evident from the streetscape, are setback and in the order of 0.5-0.7m in building height terms, not dissimilar to the adjacent or nearby buildings at 30 Floss Street and 124 Duntroon Street. This submission satisfies me in regard to objective (c).
I agree with Ex J that objective (d) is not relevant in this instance.
I believe the arguments provided at Ex J demonstrate that the objectives of CLEP's building height standard have been achieved notwithstanding the contravention. Here I have had regard to the concerns of objectors in relation to the height contravention, and the building height more generally, or as a component of the massing of the building. However, they are not for me persuasive. This is especially the case when I have regard to:
The advice of Council's planning expert that (Ex 3 par 22):
"The Clause 4.6 Variation Request to the height standard is well founded and meets the relevant criteria under Clause 4.6 of Canterbury LEP 2012. The extent to which the height of the design, including number of storeys or location of height, is appropriate is a matter for the Heritage experts in the proceedings"
The agreed advice of the heritage experts that (Ex 2 par 2.10):
"The overall height of the new building will have an acceptable impact on the conservation area."
[11]
Whether there are sufficient environmental planning grounds
Exhibit J argues there are sufficient planning grounds to justify the contravention. Mindful of Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (at [4]), I note that, here, Ex J includes the required attention to that aspect of the proposal that does not comply with the standard, that is, the height of the building rather than any benefits of the whole development. It seems to me there are three main points to the argument. The first is concerned with what is argued to be the building height's compatibility with its context. The arguments put here align with those raised in regard to the height standard objective, noting the height contraventions of nearby buildings. Exhibit J links, particularly, to the positive findings on height on the part of the heritage experts. There is also mention of the 14m height standard applying to a narrow parcel of land quite adjacent to the east (26 Floss Street), which has a little weight. The second point notes the topographical features which provides an explanation of the more significant height breach to the rear. The third point argues that the contravention does not bring adverse effects even to the rear (south-east corner), where the contravention is greatest. In my view, the planning grounds, which might be summarised as suggesting the proposed building height fits in reasonably in this particular setting without bringing particular adverse impacts, are sufficient in the circumstances mindful of the findings of O'Neill C in Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097 at [42].
Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of CLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.
[12]
Public interest test prescribed at cl 4.6(4)(a)(ii) of CLEP
I now turn to the test at cl 4.6(4)(a)(ii) of CLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 Local Centre zone.
The interpretation of the word "consistent" has been considered in many judgments of the Court. Here, briefly, I accept the interpretation that the word consistent is synonymous with compatible (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).
I agree with, and rely on, Ex J's demonstration that the proposed development is consistent with the objectives of the building height standard as considered above.
The B2 Local Centre zone objectives are as follows:
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
It is obvious that this mixed use development provides for uses that serve the needs of local people including through the street level commercial development, and would encourage employment opportunities in this highly accessible location. The location of the proposal, adjacent to Hurlstone Park station, would assist in maximising public transport patronage. The associated reduction in need to rely on private cars would encourage walking and cycling. The proposal would facilitate investment and is compatible with ambitions for an active, diverse and well-designed centre in the station surrounds.
Based on the above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 Local Centre zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of CLEP are met in regard to the height of buildings contravention.
[13]
Findings - height of buildings contravention
The states of satisfaction required by cl 4.6(2) of the CLEP have been reached and there is, therefore, power to grant development consent to the proposed development notwithstanding the breach of the height of buildings control. I also note here that I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b), but I have considered the matters in cl 4.6(5) of CLEP in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
[14]
Public interest
As foreshadowed above, it was Council's submission that the weight of public objections alone provides "a significant reason to refuse the application" or that the nature of the objections demonstrate that the proposal is not in the public interest. (CCS par 37).
While there was considerable weight to the local public objection to the proposal, it is less clear that the nature of the objections demonstrate that the proposal is not in the public interest. The Court is often faced with deciphering whether interests expressed by objectors are properly represented as public interest issues or better described as focused on a concern by local people about a local interest. That is not to say that both cannot be at play at the same time. Indeed, it has been identified that attention to both qualitative and quantitative concerns are required when giving consideration to whether there is a public interest at play (see Nerringillah Community Association Inc v Laundry Number Pty Ltd [2018] NSWLEC 157 at [122]). That is to say, while the quantum of objection to this matter would not bring much weight when viewed from the perspective a wider regional or even local government area basis, this does not, of itself, deny the potential for there to be a significant public interest question. Below I consider the particulars of the submissions along with the question of whether the Council's argument that the proposal is not in the public interest has merit.
The hearing commenced with a site view. I mention the considerable presence of local residents in attendance objecting to the proposal. Submissions were heard from five members of the public. Those making submissions also provided certain documents to me of relevance to their submissions. I also acknowledge the wider objections to the proposal, which Council has summarised in Ex 1 (p 5). Finally, I note that Council filed objections from a number of persons, after they had been provided with information on the plans finally before the Court, which I have also reviewed.
The concerns raised in lay submissions which for me warrant particular attention here are the following:
The height, bulk and "excessive" scale of the building is incompatible in the Floss Street HCA, but also the immediate neighbours outside the HCA and the wider setting of Hurlstone Park, including the heritage-listed railway station, and the Crinan Street Shops HCA and the general federation and interwar-period architecture indicative of the area.
Adverse amenity impacts including privacy impacts in regard to overlooking from the upper levels across to a private elevated residential terrace, and privacy and overshadowing of flats to the immediate south-west.
Traffic and pedestrian safety
Acoustics
Quality of space for boarders.
While I have considered the objecting submissions, including those made after the final amendments to the architectural plans were subject to limited circulation, I find that I am more persuaded by the evidence provided by the experts as appointed. Here I in part rely on the findings of Lloyd J in New Century Developments Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] - [64], noting that the objecting submissions were, generally, able to be objectively assessed first by the experts and ultimately by the Court.
In regard to the question of whether the overall development is incompatible mindful of the relevant HCAs, locally listed heritage items, and the setting more generally, I find in favour of the application. My finding factors in the quite detailed analytics surrounding the expert heritage evidence which ultimately found conditional agreement, and the fact of the particulars of the design changes incorporated within the proposal subsequent to Ex 13. I believe the proposal can sit harmoniously in the immediate setting due to its form as finally agreed, and note the function of existing vegetation in filtering views of the proposal from areas of the station and wider afield.
The expert planning evidence and the particulars of Ex J seemed to me to reasonably, and thoroughly, examine the question of adverse amenity impacts, finding favourably for the application with respect to the relevant controls. The concern of most note related to the upper level terrace across from the site. In regard to this, I accept the agreed evidence of the planning experts that the separation distance between the proposal and this terrace was substantial (suggested as over 20m) and considerably more than would be required by the Apartment Design Guideline relevant to State Environmental Planning Policy No 65 - Design Quality of Residential Apartment, were it to apply. I also accept the advice that this particular terrace was already relatively open to viewing from within the public domain. While I accept that this is a disappointing decision for those making submissions, in this instance the balance would go towards the permissible development for the reasons I cite above. Similarly when I turn to the impacts of the building towards the rear, I am satisfied with the evidence that appropriate privacy protection is provided as a consequence of the configuration of the buildings (including existing) and the proposed landscaping. I have considered the overshadowing of the flats to the immediate south-west above.
Turning to traffic safety, I note the principal concern raised in lay objections related to the available stopping sight distance for cars travelling southbound into Duntroon Street and meeting cars exiting the site. Council had not raised this matter as a contention, indicating satisfaction on technical grounds. Generally I accept the agreed oral evidence from the traffic experts that, given the low speed environment and with the agreed 'no stopping' restrictions, the proposal meets the sight distance requirements of the relevant Australian Standard.
[15]
Costs in regard to proposal amendments
Section 8.15(3) of the EPA Act requires the Court to make an order that the applicant pay the Council's costs 'thrown away' as a result of an amendment to an application, except where the amendment is 'minor'.
In this instance, the amendments involve a setting back of the upper floor by 1.3m and certain changes to the treatment of the building's front elevation treatment.
I have considered the parties submissions in regard to whether costs should be awarded in this instance, which comes down to whether the amendments I grant leave to in my final orders could characterised as minor.
In Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153, Pepper J (at [42]) provided a well-known set of eight principles to assist in determining whether amendments are "minor" for the purpose of s 8.15(3) of the EPA Act (then s 97B). I have considered these principles and find them generally useful but find one of Pepper J's authorities of particular pertinence to the amendments involved in the matter before me. In Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 at [29]-[32], Preston CJ held:
"29 I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor.
30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained.
31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept."
In my view, the setting described above has similarities to the matter before me here. Contextually, it is clear to me that the amendments go beyond "matters of detail" and are of considerable significance. The amendments are central to the resolution of the critical question of whether or not the proposal satisfied the heritage conservation, and related local character compatibility, contentions. These amendments are unable to be classified as minor, and in that case require an appropriate order as to costs thrown away by the Council.
[16]
Conclusion
Following proposed amendments in accordance with expert findings, the sworn expert evidence in this matter favours conditional approval. In consideration of this, and mindful of public submission, I am drawn to the conclusion that the design of the proposal, as amended, would not provide for an unreasonable heritage impact and is compatible with the character of the local area. I have also found the proposal satisfactory accommodates the requirements of cl 4.6(2) of CLEP in regard to the building height contravention. I have considered the public submissions and believe the relevant matters raised have been adequately addressed. It follows that I do not agree with Council that the nature of the objections demonstrate that the proposal is not in the public interest. The proposal, as amended, warrants conditional approval.
[17]
Orders
The Court orders that:
1. The applicant is granted leave to rely on the amended plans as referenced at Condition 2 of Annexure A.
2. In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application, as agreed or assessed.
3. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Canterbury Local Environmental Plan 2012, prepared by ABC Planning and dated April 2021 is upheld.
4. The appeal is upheld.
5. Development application No. 401/2020 for a mixed use development at 36 Floss Street and 118 Duntroon Street, Hurlstone Park is approved subject to the conditions included at Annexure A.
6. The exhibits are returned with the exception of 1, A, B and J.
…………………………
P Walsh
Commissioner of the Court
Annexure A (1289128, pdf)
Architectural Plans (13357746, pdf)
Landscape Plans (4957498, pdf)
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Decision last updated: 08 July 2021
In relation to noise, I note the advice of Mr Steedman that this matter had been investigated by Council's environmental health specialists who expressed satisfaction with the proposal, mindful of the accompanying acoustic report, subject to the agreed conditions.
There was also a submission in regard to the quality of the proposal for occupants of the boarding house. The concern was with the relatively small size of the boarding rooms and that these spaces were "not conducive to good mental and physical health" (Ex 8). Empirical studies were referenced supporting this link (between smaller housing and depression and anxiety), apparently based on a large student sample based in Milan (Italy) during the COVID-19 pandemic. I am not sure of the relationship between the referenced empirical research and the case at hand, and I do accept that housing choice at acceptable price points can be a most difficult factor. In this case, I need to give weight to the fact that the proposal meets the 'deemed to comply' standards of the Affordable Housing SEPP in regard to room area and amenities.