Modog Pty Limited v North Sydney Council

Introduction

1. "Greed … is good." - so proclaimed Michael Douglas playing Gordon Gekko in the 1987 movie Wall Street.
2. Whatever the accuracy or desirability of such a proposition in the world of high finance, it is rarely (if ever) the appropriate position in urban planning and development proposal design. The inappropriateness of the Applicant's proposed development is clearly demonstrated in the Exhibit A plans for which development consent has been sought in these proceedings and in the Exhibit O fall-back option proposed if I was not prepared (as I am not) to grant consent to the Exhibit A proposal.
3. How the Exhibit A and Exhibit O plans came to be considered is dealt with later in this decision, in some detail in each instance.
4. For present purposes, however, it is sufficient to indicate that this decision will reveal why each of these variations on a development proposal is unacceptable because each proposes unacceptable overdevelopment at a location in Neutral Bay where there are significant topographic site constraints.
5. For a variety of reasons, primarily impacts on an adjoining property and significantly poor internal amenity for either version of the proposed development, the proposed development (in either of its iterations) must be rejected and the appeal to this Court dismissed.

Introduction to the development proposal

1. Presently erected on 40 Brightmore Avenue, Neutral Bay (the site) is a residential flat building containing eight one-bedroom apartments. The site is located within the R2 Low Density Residential Zone pursuant to the North Sydney Local Environmental Plan 2013 (the LEP). Development for the purposes of a residential flat building is prohibited within this zone.
2. Modog Pty Ltd (the Applicant) applied to North Sydney Council (the Council) on 21 September 2017 to demolish the existing residential flat building on the site and replace it with a new residential flat building.
3. Because such proposed development would ordinarily be prohibited in the R2 Low Density Residential Zone, the Applicant relies upon the existing use right provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for approval. It is clear that those rights are for use of the site as a residential flat building unconstrained by the intensity of the existing residential flat building on the site (Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147).
4. The Applicant's proposed development was deemed to be refused by the Council on 14 November 2017 and, as a consequence, the Applicant has appealed to the Court pursuant to s 8.7(1) of the EP&A Act seeking approval from the Court for its proposed development. This appeal was filed on 15 November 2017.
5. The matter was referred to Dixon SC for the purposes of conducting a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979. That conciliation conference was unsuccessful and the matter was set down to be dealt with on 23 and 24 July 2018 as a contested hearing. The Chief Judge allocated the matter to me for determination.
6. As it had originally been anticipated that the matter would be determined by the Senior Commissioner, the hearing was set down to commence at 10.00 am in Court, as the Senior Commissioner had conducted a site inspection as part of the conciliation conference process. As the resident objectors who wished to give evidence had been advised that the matter would commence in Court at 10.00 am on the first day (because it was believed that no further site inspection would be required), the hearing commenced on that basis, with my site inspection deferred until early on the morning of the second day. The outcome of my site inspection is dealt with later.
7. It is to be observed that, after the lodgement of the original development application with the Council, the proposed development has undergone a series of revisions and amendments prior to the commencement of the hearing before me on 23 July 2018. In the most recent iteration of the development application, leave had been granted on 19 June 2018 for the Applicant to rely on a further revised set of plans which had the effect of alterations to the intensity of the proposed development.
8. During the joint expert conferencing in the various expert disciplines brought into play as consequence of the Council's concerns, further revisions to the proposed development emerged as the result of agreement between Mr Baker, the Council's urban design expert, and Mr Kennedy, the Applicant's urban design expert.

The Amended Statement of Facts and Contentions

1. In response to the amended plans for which leave had been given on 19 June 2018, the Council prepared an Amended Statement of Facts and Contentions, a document which was filed on 2 July 2018. This document raised eight substantive bases upon which the Council relied in support of its position that the proposed development should be rejected.
2. It will be necessary, later, to deal with the substance of some of these objections in some little detail. However, for the purposes of the present discussion, it is sufficient to note that the first of those contentions concerned the adequacy of the plans upon which the Applicant relied at the commencement of the hearing.
3. Specifically, the first of the particulars pleaded to the Council's contention relating to the inadequacy of the plans was in the following terms: (i) The following additional plans and information are required: i. Amended architectural plans that accurately depict the shoring required on the western and southern boundaries of the site for excavation of a depth of up to 7.5m. Further, shoring/retaining wall plans prepared by a structural engineer, demonstrating that no temporary or permanent ground anchors, rock bolts or the like, encroaching beyond the site boundary, are to be provided. Step-by-step details clearly demonstrating how the excavation is to occur, and the sequence of excavation and construction of the proposed shoring and retaining, are to be provided. The details should include, inter alia, excavation and construction methods, and how the retaining wall is to be secured during and after excavation.
4. As adequately detailed plans are a necessary prerequisite to the exercise of power to grant consent to a proposed development (and are expressly required by Schedule A of the Class 1 Practice Note), I raised with Ms Reid, barrister for the Applicant, what was the response to this contention (as any inadequacy in the plans had the significant potential of rendering any merit assessment of the proposed development futile if the plans were not sufficient to permit consent to be granted if, on the merits of the proposal, this was to be the appropriate outcome).
5. Ms Reid indicated that the Applicant had had revised engineering plans prepared addressing the excavation and shoring proposed to be undertaken in the south-western corner of the site and had also prepared revised architectural and landscaping plans (with these latter plans arising out of agreements reached during the joint conferencing process). These plans subsequently became part of Exhibit A.
6. These various revised plans had only been provided to the Council's legal representatives during the course of the Friday prior to the commencement of the Monday hearing.
7. Ms Reid sought leave for the Applicant to be permitted to rely on these further revised plans as the basis upon which the hearing would proceed to determination. The position advanced for the Applicant was that the revised engineering plans were responsive to the element of the Council's contentions set out above, whilst the revised architectural and landscaping plans were responsive to matters which had arisen out of the joint expert conferencing process.
8. An affidavit was read from Mr Rickard, an authorised officer of the Applicant on the application for leave to amend, as well as an affidavit in response from Mr Hutchings, a solicitor employed by the Council's legal representatives.
9. Ms Reid gave an undertaking on behalf of the Applicant that the additional costs which might be incurred by the Council in responding to these proposed revised plans would be met by the Applicant.
10. Mr To, barrister for the Council, objected to leave being granted to rely on these plans.
11. Significant discussion took place in the hearing as to the adequacy of the revised engineering plans and whether they were appropriately responsive to the element of the Council's first contention, as earlier set out. To understand the basis of this objection, it is appropriate to reproduce, in reduced size (and thus not to scale), the first sheet of these engineering plans. It appears below:
12. As can be seen, this plan depicts the proposed location of piling along the southern boundary of the site and along approximately the first (southern) third of the western boundary of the site. The proposed arrangements on the northern portion of the site within the dotted rectangle are subject to the annotation, "SHORING TO FUTURE DETAIL".
13. The Council's contention particular, as earlier set out, made it clear that the Council sought engineering detail concerning that which was proposed to be undertaken along the totality of the western edge of the site and not merely in the south-western corner. The position advanced by Mr To, therefore, was that these plans were potentially sufficiently responsive to the concerns with respect to the proposed development as sought to be undertaken along the southern boundary but did not, in terms, provide an adequate response setting out the detail of what was proposed along the entirety of the western boundary.
14. The Council's position was that, even if further detail was provided, the Council would need to have those plans considered as to their engineering adequacy by an expert retained by the Council for that purpose, as no structural engineering evidence had previously been considered to be necessary.
15. The issue of excavation and shoring along the southern boundary (to Brightmore Street) and the western boundary (to 38 and 38A Brightmore Street) arose as a consequence of the original engineering plans provided by the Applicant depicting retaining rock anchors being utilised during the initial piling construction phase, where those rock anchors would extend beyond the southern and western boundaries of the site and where no consent had been given by the Council or by the owners of the properties to the west for that to occur (such consent being a necessary legal prerequisite to permitting such activity).
16. The revised engineering plans for which leave was sought (to the extent that they addressed the Council's concern) showed that, for the southern boundary and the portion of the western boundary covered by those plans, such rock anchors were no longer required. The change in construction methodology necessarily inherent in such a change (and its adequacy or otherwise), as well as the lack of detail addressing the entirety of the western boundary, were matters which Mr To submitted rendered it inappropriate to permit the Applicant to rely on those plans as a basis for amendment of its development proposal.
17. With respect to the revised architectural and landscaping plans, Mr To submitted that, if I was prepared to grant leave to the Applicant to rely on them, the Council would be obligated to renotify the proposed development in its amended form and that this would also necessitate an adjournment to permit this to occur.
18. Consideration of these procedural matters took up the first several hours of the hearing, by the conclusion of which it was apparent to me that, whatever might be the position with respect to the necessity for further engineering plans and/or expert consideration by the Council of them, the merit matters arising from the architectural and landscaping plans would, themselves, necessarily occupy the entirety of the remaining allocated hearing time, even if leave was to be granted to rely on them.
19. As a consequence, I indicated to Ms Reid and Mr To that I proposed to grant leave to rely on the various plans for which leave was now sought (with that leave being subject to the undertaking concerning the Council's costs earlier noted as having been given on behalf the Applicant) and that I would proceed to hear and determine all merit matters arising out of the latest iteration of the plans and that, if the Applicant was successful on those merit considerations, then, and only then, would I proceed to deal with engineering matters.
20. As the only new matters going to non-engineering merit issues that had been raised by Mr Baker (set out in the affidavit of Mr Hutchings, sworn 23 July 2018), were comparatively limited ones set out in (20) of that affidavit in the following terms: Contention 2: Height, Bulk and Scale - 2.2 Matters not agreed - GB says - Western Setback - XIV "It appears that habitable rooms, decks and the rear yard of Number 38 Brightmore will suffer significant loss of privacy, both visual and acoustic, from multiple windows in the proposed development which are much too close to them. In my view this is not an acceptable outcome." Contention 6: Visual privacy and amenity - 4.2 Matters not agreed - GB says - I - "The separation distance between the windows of Units 5.03 and 6.03 and the windows of Number 38 Brightmore is 5.3m and the distance between the windows of Units 4.01 and 5.01 and those of 38A Brightmore is 8.5m. These distances fall well short of the 12m required by the ADG, which is the generally accepted minimum distance necessary to achieve acceptable levels of visual and acoustic privacy in apartment building developments." I indicated that, given that there had been extensive objections filed with the Council which would come into evidence and that there were residents, to give evidence whose evidence would potentially address those merit concerns, I did not propose to adjourn to permit renotification of the amended development.
21. I therefore granted leave to rely on the amended plans with the hearing to continue on the basis of addressing the merit issues arising out of those architectural and landscape plans; my giving of a decision concerning those aspects of the proposed developments; and, if, and only if, the development was capable of being approved despite the Council's merit concerns arising out of those design issues, would it then be necessary to turn to consideration of the potential engineering issues.
22. However, I did adjourn for a period of time to enable the Council to explain to the objectors who were present in Court what were the matters of change to the proposed development arising from the amended plans. I also granted the Council leave to file, at the commencement of the second day, a supplementary document setting out any additional contentions which might arise as a consequence of the amendments contained in the plans for which leave had been given.
23. This document was subsequently prepared; tendered without objection; and became Exhibit 13.

The continuation of the first day of the hearing

1. I have set out above the procedural matters which occupied the morning of the first day of the hearing and the necessity to adjourn for a sufficient period to permit the Council to explain the proposed amendments to the plans to those objectors who were in Court.
2. As a consequence, the substantive elements of the hearing did not commence until 1.30 pm on the first day when the in-court evidence of the objectors was heard. To the extent that that in-court evidence is engaged in my broad qualitative assessment of the proposed development, it is engaged in my consideration of those matters on an issue-by-issue basis. As a consequence, a detailed, separate summary of that evidence is not included in this decision.

The Council's contentions

1. The Council provided, in its Amended Statement of Facts and Contentions filed on 2 July 2018 in response to the amended plans for which leave had been granted on 19 June 2018, nine contentions on the basis of which the Council asserted that the proposed development should be rejected. These nine contentions were each particularised appropriately. It is not necessary, at this point, to do other than note the terms of the primary contention, rather than the matters pleaded in support of it for the first eight of the contentions. These contentions were (Contention (1) paraphrased by me): 1. The plans of 19 June 2018 and the information provided at various times, both before and after that date, in support of those plans, was inadequate to enable a proper assessment of the merits of the proposed development; 2. "The height, bulk and scale of the proposal is unsatisfactory with regard to what is permissible on adjoining and surrounding sites in the R2 Low Density Residential Zone, and is not in keeping with the existing or desired future character of the locality"; 3. With regard to the site coverage and landscape area permissible under the R2 Low Density Residential zoning on adjoining and surrounding development, "the proposed site coverage is excessive and uncharacteristic, resulting in an uncharacteristically large building that is inconsistent with development permissible and surrounding sites. The proposed building is also inconsistent with permissible surrounding development in terms of site setbacks and with regard to landscaped area"; 4. "The proposed development is inconsistent with NSDCP 2013, s 15 ‑ Bushland"; 5. "The proposal will result in the loss of significant trees from the site"; 6. "There is inadequate separation between the proposed windows and balconies and surrounding dwellings, which would have an adverse impact on the visual privacy and amenity of surrounding dwellings"; 7. "The extent of excavation is excessive and uncharacteristic of surrounding development"; and 8. "The proposal is unsatisfactory on merit, with regard to SEPP65 design principles".
2. The ninth contention was, as is conventionally pleaded in such merit appeals: Approval of the proposed development would be contrary to the public interest.
3. The particulars provided to this contention incorporated, by adoption, elements from those making submissions in opposition to the proposed development as had been earlier incorporated in the eight contentions set out above and, to the extent that the objections raised matters of legitimate planning concern that were not otherwise encompassed by the Council's contentions, the second of the particulars to this contention proposed that I should have regard to the objections to the extent that they might contribute to warranting refusal of the proposed development.

Introduction

1. The Council's document entitled "Additional Contentions arising from Amended Plans" (Exhibit 13) raised additional issues concerning the proposal in its amended form following leave that was granted on day one of the hearing for further plan amendments.
2. Exhibit 13, it will be recalled, was the document tendered for the Council at the commencement of the second day of the hearing and setting out the additional contentions that were pressed by the Council as being additional matters of concern arising out of the amendments to the proposed development that were contained in the Exhibit A plans for which I had granted leave on the first day of the hearing.
3. These additional contentions fell in three groups.

The inadequacies, inaccuracies or conflicts in the Exhibit A plans

1. First, the Council pressed additional matters supplementary to the first of its original contentions setting out where there were further inadequacies or inconsistencies in the information contained in these most recent amended plans.
2. All the matters set out in this category, it seemed to me, would be capable of being addressed (by the requirement for the Applicant to deal with the inadequacies or inconsistencies or the necessity for the provision of further information to the Council) by requiring that those matters be addressed, to the Council's satisfaction, prior to the issue of a construction certificate. Had the proposal otherwise been appropriate to be granted development consent, those issues would have been required to be dealt with in that fashion.
3. Mr To indicated that he accepted that that would be an appropriate approach to those matters.

Further impacts on apartments at 38 Brightmore Street

1. The second additional matter raised by the Council concerned changes to the potential for adverse impact on the amenity of residents in the eastern units of 38 Brightmore Street.
2. I indicated to Mr To that the written and oral evidence of the urban designers and town planners already given, together with the observations able to be made during the course of the site inspection, meant that I considered that I had a sufficient evidentiary basis upon which to make an assessment of those issues and that I did not consider I would be assisted by any further oral evidence on those matters.
3. Mr To indicated that he also concurred in that position.

The additional internal amenity issues

1. The third area of additional complaint raised eight matters concerning merit issues said to arise as a consequence of the necessity to have regard to State Environmental Planning Policy 65 (SEPP 65) design principles. To the extent that these eight matters particularised in Exhibit 13 relate to any numerical standard arising from the SEPP 65 design principles, it is only appropriate, as later discussed, to consider the matter on a qualitative basis and not having any regard, in the first instance, to the numerical control said to be breached.
2. I indicated to Mr To and Ms Reid that I proposed to treat each of the particularised amenity matters within the proposed development, as said to arise by the Council from design changes made by the Exhibit A plans, as a set of eight topics to be dealt with, one after the other (to completeness), by the experts as part of their concurrent oral evidence. This subsequently took place.
3. It is to be observed that, to the extent that these additional matters raised by the Council were purely qualitative, they are to be considered in precisely that fashion. Each of the eight matters particularised has been considered by me in light of the additional evidence given by the experts with respect to them in the resumed oral expert evidence given on the third day of the hearing.

The site

1. The Council's Statement of Facts described the site as having a legal descriptor of being Lots 1 to 8 in Strata Plan 30226. The site has an area of a little over 842 square metres and is irregular in shape. The primary irregularity in shape arises as a consequence of the intrusion of a public right‑of‑way, in a triangular insertion, into the northern boundary of the site. The site falls steeply from the Brightmore Street frontage to the north, with a fall of almost 14 metres from boundary to boundary.
2. The Council describes the existing development on the site as comprising "a three-to-four-storey red-brick residential flat building containing eight dwellings, with parking at street level. The street elevation of the existing building has a single-storey appearance to Brightmore Street."
3. The parking at street level is parking for five vehicles located on an uncovered, cantilevered concrete slab directly accessible across the footpath from Brightmore Street, with this parking being on the basis of individual, side‑by‑side parking bays.

The relevant statutory provisions

1. The EP&A Act, in s 4.67, makes provision for regulations concerning existing uses. This statutory provision is in the following terms: 4.67 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) …
2. The Environmental Planning and Assessment Regulation 2000 (the Regulation), in Pt 5, deals, in cl 42, with matters relevant to the present application. That provision is in the following terms: 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.
3. The consequence of this, as later discussed, is that the relevant provisions of the North Sydney Local Environmental Plan 2013 (the LEP) and the Apartment Design Guide (being potentially called up for consideration by SEPP 65Apart) are set aside as a consequence of the non-derogation requirement of s 4.67(3) set out above.

The North Sydney Development Control Plan 2013

1. The North Sydney Development Control Plan 2013 (the DCP) is one conventional in form. It deals with planning for potential development within the local government area at a much more specific and fine-grained basis than is dealt with in the LEP. A range of matters contained in the DCP are dealt with by setting out objectives for a specific aspect applicable to potential development and then setting controls that have been adopted by the Council as appropriate to give effect to each of the objectives.
2. In the context of these proceedings, for the reasons later discussed, I set aside the controls in the DCP, but consider, in the first instance, the objectives of the DCP as part of the qualitative assessment of this proposed development.
3. As the proposed development in Exhibit A and the Applicant's fall-back position in Exhibit O both fail comprehensively on this basis, there is no need to have any regard to any numerical control in the DCP.

The adequacy of the plans

1. As earlier noted, adequate and mutually coherent plans are not only required by the Class 1 Practice Note as being a prerequisite to a procedurally compliant application to the Court but are, as a matter of fundamental necessity, a prerequisite to the granting of consent to a development proposal such as this.
2. I have earlier explained the process by which the Applicant was granted leave to rely upon three sets of revised plans (architectural, landscaping and engineering) at the commencement of the Court hearing. It is sufficient for present purposes to observe that, during the course of the hearing, two things became clear with respect to these plans.
3. The first, and more important, matter related to the accuracy and adequacy of the plans themselves. It is sufficient to note that, in a number of instances, deficiencies in the plans emerged during the course of the concurrent expert evidence given by the town planners and urban designers.
4. In particular, a sectional plan depicting proposed louvre arrangements at the western façade, intended to provide privacy protection to the eastern units of 38 Brightmore Street, were based on the depiction of an illustrated hypothetical observer looking towards those louvres from an adopted eye height of nearly 1.8 metres above the floor level of each of the rooms depicted. The long-adopted conventional planning position is that the nominal eye height for such analysis would be between 1.6 and 1.65 metres.
5. The depiction of a hypothetical viewer at the ~ 1.8-metre eye height, on two separate levels, adopts a hypothetical viewing cone representative of only a small minority of the population. There was no coherent, rational explanation as to why this approach was adopted.
6. Second, to the extent that there might have been minor inaccuracies or opportunities for minor improvements, had the proposed development otherwise been acceptable on the broad design assessment I have undertaken, such matters would have been able to be rectified by minor amendment to the plans. This could have been done (had it become necessary) prior to making orders granting development consent.
7. However, such deficiencies or minor redesign elements as might have existed could not, and have not, contributed to my broader conclusion as to the overall unacceptability of the proposed development.

The role of planning controls

1. I have earlier set out the relevant provisions in the EP&A Act and the Regulation that established the non-derogation framework within which applications such as this development proposal are to be considered.
2. In this context, it is appropriate to note the comments of Pain J in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 (Stromness), at [95], where her Honour wrote: 95 SEPP 65 contains design principles which all residential flat buildings in New South Wales should comply with. SEPP 65 is aimed at achieving better designed residential flat buildings. Section 108(3) provides that the provisions of environmental planning instruments, which includes SEPPs, which derogate from the existing use do not have any effect in relation to existing use rights. To the extent that the SEPP contains any prescriptive requirements, these cannot be applied to derogate from the Applicant's existing use rights. Where an environmental planning instrument can inform the merit assessment to be undertaken under s 79C, then an instrument such as SEPP 65 does apply to assist in the merit assessment of a residential flat building. While I agree that s 108(3) prevents the application of SEPP 65 as a basis for refusing an application relying on existing use rights, its provisions can guide a merit assessment as it is raising matters that should otherwise be considered on a merit assessment of a residential flat building under s 79C no matter where it is located.
3. I respectfully agree with the position proposed by her Honour and adopt it for the purposes of these proceedings.
4. However, it is also appropriate to observe that Mr To submitted that a different position applied to any controls which might arise from the Council's DCP (where potentially relevant). The proposition advanced by Mr To was, as I understood it, that, because the DCP was not an environmental planning instrument as defined in the EP&A Act, its operation was not impacted by the statutory non-derogation provisions that operated to set aside any otherwise applicable controls in either the LEP or SEPP 65.
5. In essence, Mr To's submission concerning the permissibility and appropriateness of the DCP calling up numerical controls that were required to be considered, despite the non-derogation provisions concerning environmental planning instruments, arises from what might be described as the lesser and more subordinated status of development control plans, generally. This arises, he says, because development control plans do not contain mandatory standards but merely contain controls, which, if numerical, are ones from which departure is permissible.
6. This flexibility, as a consequence of either the attitude to be taken to development control plans, for the reasons set out by Spigelman CJ in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 (Zhang), or by virtue of the provisions of s 4.15(3A) of the EP&A Act, meant that numerical controls in a development control plan, relevantly in this instance, the DCP, were required to be taken into account in circumstances such as these. That which would follow from this proposition, logically, was that if a development control plan sought to import controls from SEPP 65 (as is the case with control P2 in 1.3.10 Visual Privacy of the DCP), this is permissible. This control, in terms, seeks to import numerical controls in the same terms as those contained in the relevant portion of SEPP 65. The text of the control (omitting the numerical table supporting it) is, relevantly, in the following terms: P2 Residential flat buildings are to provide adequate separation between habitable rooms, balconies and non-habitable rooms, consistent with SEPP 65.
7. It was Mr To's submission that, subject to the terms of s 4.15 (formerly s 79C) of the EP&A Act, and the approach mandated by the decision of the Court of Appeal in Zhang, the controls in the DCP remained functionally on foot and engaged for consideration in these proceedings.
8. I indicated to Mr To that I had considerable reservations about this submission as, on the basis upon which it was advanced, the totality of the various development standards otherwise set aside by the non-derogation principles in circumstances such as this would continue to be required to be satisfied unless there were sufficient and elaborated reasons for departing from them (consistent with the approach mandated by Zhang).
9. Consistent with the approach I have explained above (of undertaking a first principles' merit assessment of both the Exhibit A and Exhibit O development proposals), it is appropriate to set out, from the DCP, the objectives for development within the Council's area which are engaged in such a consideration.
10. The examples of relevant objectives in the DCP's are set out in the following table: 1.3.7 Solar access O1 To ensure that all dwellings have reasonable access to sunlight and daylight 1.3.8 Acoustic privacy O1 To ensure all residents are provided with a reasonable level of acoustic privacy 1.3.10 Visual privacy O1 To ensure that existing and future residents are provided with a reasonable level of visual privacy 1.4.7 Form, massing & scale O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings 1.4.8 Built form character O1 To ensure that the design of new buildings reflects and reinforces, or is complementary to, the existing chracter of the locality 1.5.5 Site coverage O2 To ensure that development promotes the existing or desired future character of the neighbourhood O4 To limit the building footprint so as to ensure adequate provision is made for landscaped area and private open space 1.5.7 Excavation O1 To retain existing vegetation and allow for new substantial vegetation and trees 15.1.1 General objectives O4 Avoid and mitigate adverse effects on bushland associated with urban development 15.2.1 Siting and design objectives O1 To minimise any impacts of development on nearby bushland

1. In undertaking my first principles' assessment of the Exhibit A development proposal and the Applicant's Exhibit O fall-back option, I have had appropriate regard to the philosophy inherent in relevant objectives adopted by the Council in the DCP.
2. In doing so, I have not paid any heed to any of the detailed controls proposed by the Council as being appropriate to be applied in giving effect to these various objectives. This approach is consistent with the broad position adopted in Stromness. In addition, I have had regard to the expert evidence, written and oral, given on behalf of the parties. However, because I am turning my mind to matters of basic principle, rather than having regard to any controls (including those in the DCP), I have found this expert evidence (which generally addressed such controls) to be of limited assistance.
3. As I have concluded that both the Exhibit A and Exhibit O proposals are unacceptable on this basis, it has not been necessary to determine whether or not the controls set out by the DCP as supporting these objectives are required to be considered as proposed by Mr To.
4. Fortunately, in these proceedings, it is unnecessary for me to give a definitive determination on this point, as I am satisfied that, on an assessment of each of the Exhibit A and Exhibit O proposals on the broad first principles' basis arising from Stromness, each of them is unsatisfactory.
5. As a consequence, it is unnecessary to explore whether the non-derogation provisions prevent elements of a development control plan (as an instrument subordinate to the relevant LEP) from calling into play, in existing use rights cases, provisions which import controls which were otherwise expressly excluded by the non-derogation principle.
6. Therefore, for the reasons earlier set out that the objectives contained in the DCP have a legitimate role to play in assessment of developments reliant on existing use rights (in the fashion consistent with the passage earlier extracted from Pain J's judgment in Stromness), I do not need to determine whether the same position cannot be said to apply with respect to controls set out in the DCP.
7. What follows is my consideration of the adequacy or otherwise of this proposed development - one confined to an assessment taken by viewing the proposal through a qualitative lens rather than by measuring it against any numerical controls.

The role of character statements in the DCP

1. Mr To also raised the question of consistency with the existing character and desired future outcomes for development in the North Cremorne Planning Area where the site is located. Under the heading, "Quality Built Form", the relevant area character statement in the DCP reads: Residential development respects and maintains existing characteristic built form with building setback from all boundaries and landscaped front gardens, softening the built form.
2. This would play a part in the assessment of any permitted development in this area. However, given that this proposed development relies on existing use rights for a residential flat building, the characteristic built form in this precinct of the R2 zone is inapplicable as, although there are some other residential flat buildings of similar era in the vicinity, they, and that which is currently erected on the site, could not be regarded as providing an "existing characteristic built form" in the sense envisaged.

The standard of design to be achieved

1. I have had occasion, over my many years as a Commissioner and the Senior Commissioner of the Court, to make an observation to the parties in a Class 1 merit appeal in terms that I considered it appropriate to put to the advocates in these proceedings. That proposition is that the test for whether a development proposal should be granted is whether it is acceptable in light of the relevant basis upon which its assessment is to be undertaken (being what I describe as 50.0001%). It is not, as I have observed on other occasions and in these proceedings, to require that the development proposal achieve "design Nirvana".
2. It is on that basis of acceptability that I have undertaken my first principles' assessment of the design of this proposed development in both its Exhibit A form (for which consent is sought by the Applicant) and the Exhibit O fall-back position which the Applicant says, if I do not approve the Exhibit A proposal, should be an acceptable development if I was to take an "amber light" approach

The site inspection

1. Because of the way it had been necessary to structure the timing of the hearing to accommodate the resident objector evidence in Court on the first day, the site inspection was undertaken early on the morning of the second day.
2. After meeting the parties' legal representatives, and those advising and/or instructing them, at the Brightmore Street frontage to the site, we proceeded to inspect a number of elements relevant to matters addressed by the experts for each of the parties. These included: 1. looking at the streetscape context of three existing residential flat buildings located in Bennelong Road, including one which had a hedge behind its street frontage wall (No 80) (with that hedge growing from below street level but being maintained by being pruned to a height above the top of the low, brick street frontage wall); 2. standing on the south-eastern corner of the intersection of Brightmore Street and Bennelong Road to observe streetscape elements to the north-west along Brightmore Street and to the east (including the site) along that street; 3. walking to the north-east along Brightmore Street on its northern footpath, across the face of the Brightmore Reserve fronting Brightmore Street, and to observe, in a contextual sense, the duplex development in Tobruk Avenue on its western side, at 2 and 2A (a duplex development also observed when looking up from below within the Brightmore Reserve itself), and the development at 3 and 3A Tobruk Avenue on the opposite side to this duplex development. Both of these existing developments were matters considered by the experts in an urban design streetscape context; 4. access was available to the upper and lower eastern units of the four‑unit development to the immediate west of the site at the street frontage (being at 38 Brightmore Street). The owners of each of these apartments provided access. Each of them had earlier given evidence on the afternoon of the first day of the hearing. My inspection of these two apartments enabled me to obtain an understanding of the points that they made during the course of their in-court submissions; 5. during the course of the walk along Brightmore Street to the east, I was asked to look to the west (as we rounded the corner and went up the gentle slope towards the eastern edge of the Brightmore Reserve), the extent to which the existing development on the site was able to be observed while undertaking that traverse; 6. we then proceeded down the pathway through the Brightmore Reserve to observe several matters with which the arboricultural experts had engaged (these being Tree 6 on the site and observing the nature of the outdoor private open space available to the residents of 38A Brightmore Street (at both the lower and upper level decks of that property)); and 7. finally, I observed the location and its current development context of Tree 1, a substantial Lemon‑Scented Gum (Corymbia citriodora), located on the site in proximity to the south-eastern corner of the site.
3. During the course of the oral evidence given in Court by Mr Spring, an objector residing in 51 Brightmore Street opposite the site, Mr Spring had commented on the practice of cyclists using the Council-encouraged cycle route along Brightmore Street of travelling in a fashion he described as resembling a peloton.
4. Prior to the legal representatives of the parties joining me at the commencement of the formal site inspection, I observed two groups of cyclists, one of six riders and the second of four riders, travelling in such a fashion along Brightmore Street. I advised Ms Reid and Mr To of what I had observed, including the fact that the larger of the two groups had passed me with the formation including three riders in line abreast taking up approximately two-thirds of the width of the Brightmore Street carriageway at that point.
5. Finally, it is to be observed that, at the commencement of the site inspection (now having a better appreciation of the local topography and intersection layout giving rise to potential constraints on vehicle movements), I had a better understanding of the matters raised in some of the written objection material concerning traffic issues - in particular, the question of how queuing to access the proposed car lift would be managed to ensure that traffic flow and potential safety issues were appropriately addressed.

Introduction

1. For the past nine years or so, in merit appeals, members of the Court have adopted an "amber light" approach in development merit appeals. This has the decision-maker considering whether or not it might be appropriate to approve an otherwise unacceptable development proposal by mandating changes to it. Such mandated changes are required to be ones capable of implementation by the provision of amended plans and/or amended conditions of consent giving effect to changes which were not so radical as to warrant that which was proposed to be approved so different from the original proposal for which approval had been sought as to make it appropriate that a fresh development application should have been lodged.
2. This "amber light" approach was first discussed in those express terms by me, in my then role as Senior Commissioner, in Ali v Liverpool City Council [2009] NSWLEC 1327 at [120]. The evolution of, and now universality of approach embodied in, dealing with matters where the "amber light" may turn to green was canvassed by Sheahan J in Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 at [60] to [72].
3. However, it is, also, appropriate to contemplate whether or not an "amber light" approach could be utilised and reach a conclusion that it would not be appropriate to do so even though the parties may have canvassed, or been invited to canvass, the potentiality for such an approach (see ABAX Contracting Pty Limited v The Hills Shire Council [2016] NSWLEC 105 at [73] and [74])).
4. In these proceedings, I indicated, toward the end of the second day of the hearing, that it might be appropriate for the parties to consider whether or not an "amber light" evolution of the proposed development (by deleting proposed apartments 101, 403 and 503) would render the proposal acceptable. I indicated to the advocates that I wished to have them address that option during the resumed hearing on the third day.

The third day of hearing

1. At the commencement of the third day of the hearing of these proceedings, I advised the parties that, on further reflection, as to the possibility of what I might be prepared to consider through the lens of a possible "amber light" approach was not as extensive as I had indicated at the end of the second day of the hearing a week earlier. I indicated that, on a further examination of the plans in Exhibit A undertaken during the intervening period of time, the possibility of the deletion of apartments 403 and 503, without me being able to be certain as to what the resultant architectural design consequences would be of such a requirement, rendered it inappropriate for me to consider that option further. As a consequence, I indicated that, for my part, at that time I could only envisage an "amber light" consideration arising in the context of the potential deletion of Apartment 101.
2. During the course of the exchange with the advocates that followed, Ms Reid revealed that the Applicant was proposing to advance an alternative "amber light" package addressing the design of the apartments on habitable levels 3, 6 and 7. Ms Reid also indicated that the Applicant was not proposing to seek leave to amend the proposed development to rely on this possible suite of alternative design elements, but merely proposed to advance them to me as a suite of design changes which, if I were minded to impose them, would be acceptable to the Applicant.
3. The Applicant considered that the plans contained in Exhibit A, for which leave had been given at the commencement of the first day of the hearing, remained the plans for which the Applicant sought development consent. It was clear that the Applicant wished to adhere to the position advanced by its experts that the plans substantively before me, as a consequence of the Exhibit A Amending Plans being permitted to be relied upon, was a development proposal capable of being given consent on its merits.
4. Ms Reid then tendered hand-marked-up versions of the levels 3, 6 and 7 plans showing, in broad conceptual terms, what comprised this potential alternative approach, which would be acceptable to the Applicant, if I did not conclude that the Exhibit A plans warranted approval on a design merit basis. These three hand-marked plans (which became part of Exhibit O) were accompanied by a typed schedule explaining what was proposed if I was to reject the proposed development in the Exhibit A plans but I was prepared to adopt an Applicant-proposed "amber light" outcome. A copy of that schedule is reproduced as a scanned PDF file at Annexure A to this decision.
5. As can be seen from that annexure, the final element of the schedule proposed that engineering design issues, rather than being to my satisfaction in the fashion I have earlier discussed, should be dealt with on a delegated basis, the terms of which are set out in the final paragraph of the annexure. I indicated that such an approach was unacceptable and that the separate hearing phase, which I had earlier foreshadowed would be the appropriate approach to address such matters, remained the position if either proposal merited approval.
6. The various documents in Exhibit O had not been provided to the Council prior to the commencement of the third day of the hearing. As a consequence, with the agreement of the parties, I released the experts from the restrictions on conferring with their principals that would otherwise have applied because they were, functionally, in cross-examination at that time. I adjourned to permit the parties to confer with their urban design and town planning experts concerning what was shown in Exhibit O.
7. I also directed that those experts conduct a further joint conference to address the matters dealt with concerning conceptual redesign of levels 3, 6 and 7, so that they could give evidence about the potential changes if I was not minded to approve the Exhibit A plans and, as a result, turned to consider Exhibit O as an Applicant-derived potential "amber light" outcome. I adjourned the hearing for a period to permit this to occur.
8. The four experts subsequently produced a Supplementary Joint Expert Report which became Exhibit 16. I had my Associate prepare a typescript of this document, but that typescript became a working version rather than an exhibit - as the advocates and the witnesses were not able to have time to consider it before the resumption of the concurrent evidence, a resumption which took place after the taking of an early luncheon adjournment.

The approach to consideration of Exhibit O

1. Exhibit O has many matters in common with Exhibit A, where the Council contends that the proposed development would be unacceptable. For example, the question of solar access to the living rooms of the north-facing apartments, despite the internal rearrangement of various apartments, remains a matter in contention in general principle form (as well as in one specific different instance in Exhibit O).
2. I have therefore concluded that the appropriate approach to take is to address matters which are in common (for example, the impacts on the adjacent residences to the west at 38 Brightmore Street) in a combined fashion but, where appropriate, to make separate assessments of matters where the Exhibit A proposal and the Exhibit O fall-back proposal have sufficient difference to warrant this course being taken.
3. However, as a general proposition, there is sufficient information about each of the Exhibit A and Exhibit O proposals to enable separate definitive conclusions to be drawn with respect to them on the basis of the analysis which follows.
4. I have, in undertaking this task, endeavoured to interweave my consideration of these two development options so that they are dealt with in a coherent fashion by topic rather than trying to separate them out in a fashion which, in my view, would lead to a more haphazard presentation of this decision.

Introduction

1. During the course of the site inspection, I had the opportunity to visit the upper and lower apartments on the eastern side of the development at 38 Brightmore Street. Each of the owners of these apartments had raised with me, during the course of their oral evidence in Court, their various concerns about the impact on the outlooks from their apartment if the proposed development was to be approved.
2. These impact concerns were put as potentially arising in two quite different fashions.
3. The first element that was raised by each of the owners concerned the impact on their views to the north from the modestly dimensioned balconies that each of these units had opening to the north off the single bedroom of each of these apartments.
4. The second of these was the impact on each of these apartments, which would arise as a consequence of the proximity of the proposed development to these apartments on their eastern side, on both the outlook from, and natural light and/or solar access to, the windows of these apartments.
5. In this context, it is appropriate to note that each of these apartments (sharing a common floor plate layout) is of modest dimensions and comprises a single combined living room-kitchen area as its southern element at the Brightmore Street end of its floor plan; a compact, but nonetheless functional, bathroom in the north-eastern corner of the floor plate; a bedroom sufficient to accommodate a double-bed, with modest adjacent movement spaces, as the larger northern element (on the western side of the floor plate); and a small northern-oriented balcony accessed by a sliding door from the bedroom, with this balcony being of modest dimensions (sufficient for a small, round table and two chairs at most).
6. Each of the balconies had privacy screening along its eastern edge to prevent overlooking from the existing development on the site, existing development that is only some 2.7 metres away.
7. It is to be observed that the separation is proposed to be reduced if the proposed development proceeded and the extent of fenestration of development on the site would increase numerically, in both the horizontal and vertical sense, with respect to these two apartments at 38 Brightmore Street.

Potential impacts on views to the north

1. Although the owners of each of the apartments on the eastern side of 38 Brightmore Street raised objections to what they considered to be unacceptable impacts on their views across the Brightmore Reserve to the north-east from their balconies, I am satisfied that those concerns do not provide any valid basis upon which to criticise the proposed development.
2. Although these balconies are the sole private open space elements for each of these apartments, expansive views over the roof of 38A Brightmore Street (the property to the north and at a considerably lower level than these balconies) are enjoyed from these viewing points. Consideration of such impact as would be occasioned by the western façade of the proposed development on the outlook towards the canopy to the north-east would not render the overall views from these balconies impacted in any significant fashion.
3. Application of the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 could not support a conclusion that there would be such an impact of other than minor consequence on these outlooks. As observed in Haindl v Daisch [2011] NSWLEC 1145 (relevant despite being a case concerning the potential for view impact for the purposes of the Trees (Disputes Between Neighbours) Act 2006), a view analysis is not to be undertaken on some segmented, slice-by-slice basis and such an approach is to be rejected. Rejection of that proposition is equally appropriate in these circumstances.

Solar access impact on 38 Brightmore Street

1. "View from the sun" diagrams were produced showing, on a comparative basis, the impact of the present structure on the site and the structure proposed for the site by this development application. These enabled an understanding of the potential solar access impacts of the proposed development on the fenestration of the kitchen-living area and the bathroom of each of the eastern apartments in 38 Brightmore Street. Whilst the solar access impact on the bathroom windows is a matter of little concern, the impact on the kitchen-living room spaces does not fall into such a category.
2. In short, the solar impact on the windows of the upper apartment in 38 Brightmore Street does not give rise to any concern for the purposes of my analysis.
3. However, the same cannot be said with respect to solar access to the equivalent window in the lower of these two apartments. The first "View from the sun" diagrams requiring discussion, tendered as Exhibit 18, disclosed that between 9.15 am in the morning and 10.15 am, there would be an adverse impact on solar access to this window. In this context, it is to be observed that this apartment is below street level and, although it has a generous window, in the southern façade to this room, affording access to natural light, the only direct sunlight to this space comes through the window in the eastern façade.
4. The combination of the additional height and further extension to the north that would arise from the proposed development when compared to the existing structure on the site (coupled with the movement of the location of the western façade of the proposed development a little toward the western boundary of the site), all have the effect of creating an adverse solar access impact on this lower apartment.
5. Whilst the solar access presently enjoyed is affected to some modest extent by the Oleander vegetation on the site, this impact is to be set aside for the purposes of the present consideration (see The Benevolent Society v Waverley Council [2010] NSWLEC 1082 (Benevolent Society)) and, in any event, would have only the effect of dappling that sunlight to that window, rather than what would be the permanent limiting impacts of the proposed development.

Natural light and the apartments at 38 Brightmore Street

1. With respect to concerns pressed about the impact of the proposed development on access to natural light to the combined kitchen-living room areas of each of the apartments in 38 Brightmore Street, it is clear that there will be an adverse impact on natural light availability through the kitchen-living room windows of each of these apartments. Although, in each instance, the present natural light to these windows is also impacted by the Oleander vegetation on the site, it is also appropriate to set aside this as a matter of consideration on the same basis (Benevolent Society) noted concerning solar access.
2. However, for each of these apartments (particularly for the lower of them), there is a corridor between the façade of the existing development on the site and the existing cantilevered parking structure on the site that contributes to natural light availability to each of these kitchen-living room windows.
3. If the proposed development was to be approved, its southern façade would extend significantly closer to the Brightmore Street frontage than the façade of the present development on the site. This would have the effect, particularly for the lower apartment, of eliminating a significant element of natural light availability to this space of this apartment. Whilst there would be some modest amelioration of this impact as a consequence of the proposed removal of the existing cantilevered parking structure, it is my assessment that, overall, there would be an adverse impact on the availability of natural light to this room, in the lower apartment in particular.
4. This conclusion concerning an adverse impact of the proposed movement to the south, toward Brightmore Street, of development on the site is separate from any consideration of the other broader planning contextual issues pressed by the Council concerning the streetscape presentation of the proposed development said to arise from this proposed façade relocation of development on the site when assessed in a broader locality context.

Potential acoustic impacts on 38 Brightmore

1. First, it is to be noted that in the Joint Town Planning Expert Report (Exhibit 11), Mr Youhanna does not expressly raise the issue of acoustic privacy concerning the then state of the proposed development.
2. In the Joint Expert Urban Design Report (Exhibit 10), although Mr Kennedy, for the Applicant, addressed the question of setbacks in his (XI) on page 4 of this document, he did not expressly address acoustic impacts potentially occasioned as a consequence of the spatial relationship between the proposed development and the existing residences on the eastern side of 38 Brightmore Street.
3. Mr Baker, the Council's expert, observed, at page 12 in his (XIV) that: It appears that habitable rooms, decks and the rear yard of number 38 Brightmore will suffer significant loss of privacy, both visual and acoustic, from multiple windows and the proposed development which are much too close to them. In my view, this is not an acceptable outcome.
4. This comment was proffered in the context of setbacks which were noted in his (XI), as referable to the Apartment Design Guide, a document which mandated a range of separation distances.
5. It is to be observed that the acoustic privacy between the existing development on the site and the eastern residences in 38 Brightmore Street is already compromised as a consequence of the fact that each of these developments has a limited side setback from their common boundary. Such a setback, in each instance, in contemporary urban planning terms, would be regarded as unacceptable and likely to give rise to adverse acoustic impacts, given the nature of the fenestration in each building as they face each other.
6. For the proposed development (in either the Exhibit A or Exhibit O iterations), the combination of the additional length; additional height; and modest movement of development on the site closer to the boundary with 38 Brightmore Street means that this compromised acoustic impact position would likely be exacerbated.
7. Whilst some potential detailed treatment to development on the site could seek to ameliorate any such exacerbation of the existing acoustic impacts, there is no evidence before me that would suggest that such impacts could be eliminated.
8. Such a conclusion does not rely on any numerical separation criterion but is derived from the three additional impacting characteristics noted above. Whilst the likelihood of additional acoustic impact on the eastern residences in 38 Brightmore Street could not be regarded as such to warrant rejection of either the Exhibit A or Exhibit O iterations of the proposed development, nonetheless, in each instance, the inevitable increase (even if only minor) in acoustic impact on the residences in 38 Brightmore Street contributes to the reasons why each of the proposed development iterations for the site warrants refusal.

Exhibit A

1. I have earlier set out, at [66] and [67], the deficiencies in the Exhibit A plans concerning the depiction of the viewing cones from the proposed development toward the residences in 38 Brightmore Avenue (and vice versa).
2. It is clear that that which is proposed in the Exhibit A plans would have unacceptable privacy impacts in the proposed development and on its western neighbours from the louvre design as proposed. Whilst some amelioration might, potentially, have been accommodated by adjusting the location of the louvres at the angles proposed by moving them up or down, there is no evidence as to how this could be achieved. Certainly no amendment was proposed to address this impact.
3. Similarly, there is no evidence as to whether some alteration to the angle of the louvres or the number of the louvres might rectify this impact.
4. For the Exhibit A plans, this impact is both avoidable and unacceptable. Whilst not warranting refusal of the proposed development in Exhibit A, it certainly contributes to warranting that refusal.

Exhibit O

1. In the Exhibit O proposal, the angled horizontal louvres are proposed to be replaced by angled vertical louvres, with those louvres angled to have a generally north-western aspect. The proposed louvres in the Exhibit O fall‑back proposal were depicted on sheet "A" of that exhibit. I am satisfied that that arrangement would remove the potential for visual privacy impact on the adjacent residences to the west.
2. However, the glazing behind these louvres would be some 600 millimetres to the east of them. This recessing would, in combination with the vertical louvres, limit the extent to which daylight would enter the rooms behind for the period when sunlight would enter the slot between the louvres, confined to the time when there would be any potential for sunlight to enter any of the rooms having a longer length of fenestration to the louvres. For the smaller lengths of fenestration, I cannot see that there is any realistic possibility of sunlight coming through these louvres into the room served by them, given the extent of the recessing behind the louvres themselves. This, although described here in the section dealing with impacts on 38 Brightmore Street, reflects a poor internal amenity impact for the Exhibit O proposal - adding to the basis for its refusal.

Conclusion on impacts on 38 Brightmore Street

1. I have earlier described the layout of the two apartments located in 38 Brightmore Street on the side adjacent to the site. It is fair to say that, because of their modest dimensions and the topography of the locality, the amenity of their kitchen-living room space is not high (particularly with respect to the lower apartment which is significantly below street level). I am satisfied that the proposed development for the site, by its increased height; closer proximity to the western boundary of the site; and lateral extension in both a northerly and southerly direction, when compared to the existing development on the site, results in a cumulative adverse impact on these two apartments (in particular the lower of them).
2. These various impacts are, in a cumulative sense, significant in a qualitative sense. They are, effectively, the same for the two iterations of the proposed development with but a minor improvement for Exhibit O.
3. Whilst these adverse impacts would not, in themselves, provide a sufficient basis for refusal of the proposed development, these impacts (particularly on the lower apartment) contribute significantly to the unacceptability of the proposed development. They are, simply, reflective of the fact that the Applicant's proposed development constitutes a proposal for overdevelopment of the site in either iteration.

The solar access analysis for the proposed development

The accuracy of Exhibit N, the "View from the sun" material

1. I set out below, when dealing with solar amenity of the proposed development in the Exhibit A version, issues arising from the accuracy (or, more correctly, the inaccuracy) of the table on page 3 of Exhibit N. This table purported, misleadingly in a number of aspects, to represent the amount of solar access available to the various units in the Exhibit A version of the proposed development.
2. During the course of Ms Reid's closing submissions on behalf of the Applicant, she took me to a number of aspects of Exhibit N and why she submitted I should conclude that there was sufficient and appropriate solar access, on a first principles' basis, for a large enough proportion of the apartments in the Exhibit A development proposal to warrant solar access not standing as a barrier to approval of the Exhibit A development proposal.
3. In my consideration of Exhibit N during the course of Ms Reid's closing submissions, I noticed that the four diagrams on pages 4 and 5 of Exhibit N were labelled as containing information depicting the sun's presentation to the proposed development at 15-minute intervals commencing at 9.00 am. The diagrams at pages 6 and 7 were captioned as providing information during the same time period commencing at 9.00 am and at 15-minute intervals thereafter.
4. The diagrams at page 8 and onwards were captioned, consecutively, at 15‑minute intervals commencing at 10.00 am, without any subsequent caption repetition.
5. I drew this position to Ms Reid's attention (as it had not been observed by me or any of the other participants in the proceedings prior to this time) and I expressed my concern as to how I could have any confidence in the accuracy of this material given the manifest inaccuracy of portion of the table on page 3 and this duplication of captioning (it being the position that the first group of diagrams captioned as commencing at 9.00 am were completely different from the second group of diagrams captioned as covering the same sequence of periods of time).
6. I adjourned for a short time to enable Ms Reid to consider this matter.
7. When I returned, Ms Reid informed me that she had been advised that the first group of diagrams should have been captioned as commencing at 8.00 am, rather than 9.00 am. Although I have no formal evidence of this, for the purpose of this commentary I will accept that that is an accurate reflection of what has occurred.
8. However, preparation of the material (whether the table on page 3 or the diagrams from page 4 to page 7) has been prepared on the basis of data input from whichever employee of the Applicant's retained firm of architects had responsibility for doing so. At best, the "information" contained in the table on page 3 is disingenuous and, at worst, could conceivably have been prepared in a deliberately misleading fashion. It is unnecessary to make this choice and the following comments are made on the basis that the former is the correct position, rather than the latter.
9. The inaccurate captioning of the "View from the sun" diagrams on pages 4 and 5 are reflective of, at best, shoddy data input by whoever was responsible for their preparation and incorporation in Exhibit N.
10. The consequence of this is that I cannot have confidence as to the accuracy of the material contained in this exhibit. I would have been entitled to reject it and would have done so had not the second element of its inaccuracy only been observed (and then by me) during closing submissions in the proceedings. There would have been a risk of procedural unfairness had I done so, despite the inaccuracies and sloppiness revealed from the face of the document.
11. As a consequence, despite my significant reservations about Exhibit N, to the extent that elements of the table on page 3 are not misleading, I will assess the proposed development (both based on Exhibit A and Exhibit O) on that basis.
12. With respect to the accuracy of the "View from the sun" diagrams, I have determined that I should proceed on the assumption that the captioning of the diagrams on pages 4 and 5 was merely a reflection of the incompetence of their preparation.
13. In doing so, I have concluded that the appropriate course, for the relevant period for undertaking a first principles' solar access assessment, is the six‑hour period between 9.00 am and 3.00 pm and that, for this purpose, I should have regard to the diagrams commencing on page 6 for this purpose.
14. Having said that, as can be seen from my later consideration of the solar access issues for both the Exhibit A and Exhibit O proposals, taking the diagrams in Exhibit N and the accurate elements of the table on page 3 of Exhibit N at their highest for the Applicant, it nonetheless remains the position that neither the Exhibit A proposed development, nor the Exhibit O fall-back proposed development, can be regarded as having satisfactory solar access to any number of apartments to sufficient extent to warrant the solar access of the overall development to be regarded as acceptable.
15. This amenity inadequacy is, almost on its own, sufficient to warrant rejection of the proposed development in either design iteration.
16. As a question of first design principles, a site with a generally northerly orientation (even with a slope of the nature present on the site) should be able to have prepared for it a development design that provides adequate solar access to sufficient of the proposed apartments to warrant approval.
17. The failure to do so, in the fashion described elsewhere in detail, is indicative of the fact that what is proposed, in both the Exhibit A development proposal and the Exhibit O fall-back option, represents greedy overdevelopment proposals for the site.

Solar amenity - the Exhibit A proposal

1. I have earlier considered the second set of "View from the sun" diagrams (in Exhibit 18) in the context of assessing impacts on the apartments on the eastern side of 38 Brightmore Street. It is also appropriate to consider the validity of the analysis derived from these diagrams about the adequacy of solar access to apartments in the proposed development. This "View from the sun" material sets out, in its accompanying descriptive analysis, a table which is described as analysing the adequacy of solar access to the various apartments in the proposed development (Exhibit N on page 3).
2. As emerged during questioning by Mr To, during the course of the town planning/urban design evidence, this table asserts, for the living spaces of each of the directly north-facing apartments in the proposed development, that, for the periods nominated in the table, there is appropriate solar access through the glazing (whether fixed or sliding door being irrelevant) from these living spaces to the balcony.
3. It is not necessary to set out, in full, the planning principle adopted by the Court in Benevolent Society, to which reference has earlier been made, but it is sufficient to observe that the question of solar access adequacy is to be considered on a qualitative basis and not merely the question of just whether sunlight falls on some part of a glazed surface to a living room. It is clear from the "View from the sun" diagrams in Exhibit N that what has been noted in this analysis as solar access to these living areas is to a sliver of floor space from, at best, a little above knee-height downward.
4. To purport to depict this as providing satisfactory solar access to these living spaces can only be described as rank intellectual dishonesty.
5. There can be no doubt that, from a solar access perspective, the combination of topography and overshadowing from balconies proposed for the apartment next above each of these impacted apartments renders solar access for these living spaces of zero practical utility as at the appropriate time for such assessment at midwinter.
6. This represents a significant design inadequacy, a design inadequacy capable of rectification in a differently designed development proposal - for example (but not to be taken as design advice for some future proposal contra Manzie v Willoughby City Council [1996] LEC 26), one which sequentially stepped back to some extent up the northern façade of such a development. This element of amenity inadequacy for these apartments could only be rectified for the lowest of these apartments (by its possible elimination from the design) on a potential "amber light" approach and would leave the other apartments with significantly compromised amenity in this regard.
7. This compromised amenity also contributes to the overall conclusion that this proposed development does not warrant approval.

Solar access to the living area for Apartment 401 in Exhibit O

Introduction

1. The proposed living-kitchen area depicted on sheet "C" in Exhibit O has dimensions of approximately 13 metres (north-to-south) and seven metres (east-to-west). There are two aspects of the proposed redesign of this apartment that require my consideration. The first, the significantly more major of the concerns, arises with respect to solar access to this space, whilst the second, more minor but nonetheless reflective of "design on-the-run", arises as the proposed dining space at the southern end of this living-kitchen area is directly across the mouth of the corridor leading to the bedrooms for this apartment. I deal with the solar access issues below and deal with the layout design issue separately and later.
2. Apartment 401 is the western of the two north-facing apartments on this level of the proposed development in the Exhibit O fall-back proposal. The depth of the living-kitchen-dining area from the glazing at the rear of the balcony at its northern end is, as earlier noted, 13 metres. Even if there was otherwise generous sunlight falling on the glazed area at the northern end of this space, the depth of it would still result in a cavernous perception at its southern end. The extent of the fenestration along the western wall (being three apertures with vertically arranged louvres inclined in a north-westerly direction) would limit the amount of natural light (as opposed to sunlight) that would enter this space (particularly in the context where this space is, at least to a considerable extent, to be located at a partially semi-subterranean depth when compared to the necessary retaining wall and fencing structures that will be required to the west).
3. The Exhibit N "View from the sun" diagrams (taking them at their highest, for the Applicant, despite my significant reservations about Exhibit N) shows that the sunlight falling on the glazed area at the northern end of this space would be regarded, at best, as rising to, perhaps, knee-height at the glazing and penetrating but a modest distance into this space for a period of some five hours and 15 minutes between 10.30 am and 3.45 pm. This combination of area and time renders what would be the length of this room in this proposed design another aspect of the unacceptable internal amenity aspects arising from the Exhibit O fall-back option.
4. Although Mr Kennedy proposed that the surface treatment and angling of the louvres would enable reflective light to be harvested for this space, rendering it "light acceptable" in his view, I am unable to accept the proposition that such a treatment would provide sufficient additional daylight penetration for a sufficiently long period of time to compensate, adequately, for the lack of solar access and the significant depth of this room from the northern glazing.
5. It is also to be observed that, beyond the end of the internal space of Apartment 401, the solid wall on the western façade is shown on the Exhibit O sheet "C" as extending some three metres in a northerly direction beyond the northern wall of the habitable space. This northern extension, and the additional wall of some 2.6 metres in length on the northern boundary of the terrace of this apartment (separated from the western wall extension by only a slot aperture), also acts to limit the amount of sunlight capable of being enjoyed by this space (even if only to knee-height). Those two walling elements are essential to protect the deck areas on 38A Brightmore Avenue from being subject to unacceptable overlooking privacy intrusions from this apartment.
6. This aspect of the design of Apartment 401 demonstrates inadequacy of amenity to this living space. Whilst not, in itself, warranting refusal of the Exhibit O fall-back proposal, nonetheless, it is a significant contributor to the necessary overall conclusion that the Exhibit O fall-back proposal constitutes a poor and unacceptable design proposal for the site.

The private open space for Apartment 403 - Exhibit A

1. Apartment 403 in the Exhibit A version of the proposed development would have, as its private open space, a 14-square-metre grassed area with dimensions of approximately 5.4 metres by 2.6 metres.
2. This space is proposed to be located on the western side of the development between the western façade of the proposed building and the boundary of the site with 38 Brightmore Street. On this boundary, there is proposed to be a retaining wall, 1.8 metres high, as a result of this open space element being located to this extent below ground level on the adjacent property. On top of this retaining wall, it is proposed that there would be erected the 1.8-metre high boundary fence between the site and 38 Brightmore Street.
3. On 38 Brightmore Street, at the approximately 1.8-metre setback of that apartment block from its boundary with the site, there will be, continuing above the top of the boundary fence, the confining effect of the eastern façade of the apartment block.
4. On the eastern side of this proposed private open space, the western façade of the proposed development extends some nine metres vertically above the proposed grassed area.
5. On its southern boundary, it is to be assumed that there will be some form of balustrading, as the proposed private open space for Apartment 503 is located to the south at that level. Whatever might be the nature of such balustrading, it would need to be constructed of materials, and to a height, which ensured a degree of privacy protection for the adjacent space. A similar position would apply with respect to balustrading on the northern edge of this proposed space.
6. The "View from the sun" diagrams show that this grassed area would be shaded, at midwinter, by the proposed development itself until 1.00 pm, whilst there would only be a period of 120 minutes of sunlight to this space before it commenced to be overshadowed by a combination of the retaining wall, the boundary fence and the existing development on 38 Brightmore Street. Mr To closely questioned Mr Lovell about the amenity that would be "enjoyed" by Apartment 403 as a consequence of this location and configuration of its proposed private open space.
7. Mr Lovell conceded that the amenity afforded to Apartment 403 as a consequence was poor. I carefully noted the terms of one response made by Mr Lovell during this questioning. He said that the amenity was: … not ideal but not determinative of the application.
8. This is a clear concession as to the fundamental inadequacy of amenity afforded by this private open space if the development was to proceed, with Mr Lovell expressing the view that this inadequacy, in itself, was not sufficient to warrant refusal of the proposal.
9. In his poem, "The Ballad of Reading Gaol", Oscar Wilde described the extent of the view of the sky available to the condemned prisoner in the following terms: I never saw a man who looked With such a wistful eye Upon that little tent of blue Which prisoners call the sky, …
10. Such a description is an apt one to be applied to what would be the outlook and utility of the proposed private open space for this apartment. It would be akin to having its private open space at the bottom of a significantly confining light well with a constrained upward view to the sky, resulting in limited natural light to the space and extremely limited solar access to it.
11. Although the natural light issue would be potentially able to be ameliorated (in a limited fashion) by light-coloured surface treatments to the surrounding enclosing elements, I am unable to accept that, in a qualitative sense, this proposed private open space could be regarded as being acceptable at all.
12. I reached this conclusion, not by the application of any strict numerical standards as to site area or solar access derived from any controls (no matter in what document such controls might be located), but from the application of first principles.
13. The concession by Mr Lovell recorded above reflects this undesirability, an undesirability that I consider is simply unacceptable.
14. The unacceptability arises not as a matter of inevitable necessity of the design of any replacement residential flat building which might be proposed to replace the present structure on the site, but is as a consequence of the desire to achieve a building envelope for the site which maximises its development potential. Seeking to achieve this through the present proposed design would result in an unacceptable level of amenity for future occupants of proposed Apartment 403.
15. Whilst I accept that, in itself alone, this significant negative aspect of the proposed design would not warrant refusal of the proposal, nonetheless, this inadequacy makes a significant contribution, as part of a cumulative qualitative assessment of the proposed development, to reaching the conclusion that, overall, the proposed Exhibit A development for the site is unacceptable and to be rejected.

The location of the dining area in Apartment 401 - Exhibit O

1. The proposed dining area for Apartment 401 straddles the mouth of the corridor leading from the living space of this apartment to the bedrooms proposed for it.
2. First, on a positive note, it is to be observed that the amount of space allocated to this three-bedroom apartment is substantial. However, despite that generosity, proper circulation patterns need to be incorporated in any apartment layout design. In this instance (setting aside the fact that the corridor to the bedrooms is depicted in Exhibit O sheet "C" as being some two metres wide, a matter capable of being tidied up but also reflective of the "design on-the-run" aspect of the preparation of Exhibit O), the fact that the dining area straddles the mouth of this access corridor is indicative of poor design. Access to the bedroom corridor is likely to be a space of at least modestly frequent circulation during morning and evening periods. To have an unnecessary obstacle course created by the location of a dining table across the mouth of the corridor is, at best, undesirable.
3. Whilst this design fault does not, in itself, make any contribution of significance to the Exhibit O fall-back proposal warranting refusal, it is nonetheless indicative of the overall design inadequacies of this fall-back position advanced on behalf of the Applicant.

The courtyard to Bedroom 2 - Exhibit A

1. In the Exhibit A version of Apartment 101, Bedroom 2 looked out, through fixed glazing, onto a small grassed space. This space would not only be inaccessible from the bedroom itself, but, as it is depicted as being surrounded by retaining walls, it could only be accessed by scaling down the walls, walls which are shown in Section F-F of the Exhibit A plans to be some 2.4 metres high.
2. Even if, being charitable given the overall poor state of these plans, I was to assume that the lack of access to this courtyard from the bedroom was a drafting error, nonetheless this sunken space would provide little useful amenity to the occupant of that room, given the "exercise yard" nature of the impression that would be created by the enclosing walls. It is to be observed that this criticism pays no regard to the fact that, on top of this retaining wall, there would necessarily be some form of boundary fence between the site and the Brightmore Reserve.

The removal of retaining walls in the Exhibit O proposal

1. The Exhibit O fall-back proposal, amongst other elements of the proposed redesign of this lowest level design, proposes the removal of the retaining wall along the northern end of the eastern boundary of the site. It is proposed, in Exhibit O, that this be replaced with a sloping batter along a significant portion of the boundary so that there could be a sloping open space as an alternative to the retaining wall and the sunken lawn area at the north-eastern corner of the proposed development as proposed in the Exhibit A plans.
2. It is to be remembered that, in this vicinity, the issue of the design and precise location of the retaining walls in the Exhibit A proposal was noted as requiring some modest amendment as a consequence of the arborists' evidence in order to ensure that the impact on Tree 6 was rendered acceptable. I had indicated that I was satisfied that that minor aspect could be dealt with by a condition of development consent, if the Exhibit A development proposal was otherwise acceptable, which required the satisfaction of the Council of the detailed nature of the retaining wall's design and location prior to the issue of a construction certificate to permit giving effect to the Exhibit A proposal.
3. During the course of his closing submissions, Mr To proposed, with respect to the battering of this area, as the treatment to be effected if the Exhibit O plans were to be approved lacked sufficient detail for me to be confident that the impact on Trees 6 would be such that they would not be significantly adversely impacted.
4. I accept that there is no detail, merely a bare concept in an imprecisely marked area as to how this treatment might be carried out if the Exhibit O proposal was to be approved.
5. However, such a treatment, as part of a redesign of Apartment 101, would be beneficial for the amenity of this apartment when viewed in combination with other ameliorating aspects of its proposed redesign. Had I otherwise been inclined to approve the Exhibit O fall-back position, the appropriate way to address this concern would be the same as that which would have been appropriate for the Exhibit A proposal, namely, that the detailed design of this aspect of any revised proposal should be subject to the satisfaction of the Council, prior to the issuing of a construction certificate, that the potential impact on Tree 6 had been satisfactorily resolved in a more considered design of what was proposed to occur at this location.

The overall positions on internal amenity

1. The overall position of the urban design and town planning experts on the internal amenity of either development proposal was that those giving evidence on behalf of the Council considered the internal amenity, overall, was significantly poor and, hence, unacceptable. On the other hand, the position advanced on behalf of the Applicant was encapsulated by the final position of Mr Kennedy, who was of the opinion that, although the amenity of some of the units in the Exhibit A proposal was compromised, on an overall assessment basis this version of the proposed development was acceptable in that regard.
2. However, he did concede that, if the Exhibit O fall-back option was adopted, the internal amenity of the proposed development would be improved (but that this was, by implication, unnecessary as the Exhibit A development proposal was already acceptable).
3. I am unable to accept that the overall internal amenity of the apartments within the proposed development in either the Exhibit A or Exhibit O configurations could be regarded as acceptable. Overall, the solar amenity can only be regarded as ranging from absent to very poor. This position, when coupled with the other internal amenity issues I have dealt with in detail makes it clear that the design, in either iteration, comes perilously close to rejection simply on internal amenity aspects when considered in an overall qualitative fashion.

Introduction

1. In addition to the impacts on the eastern apartments in 38 Brightmore Street and the internal amenity deficiencies within either iteration of the proposed development, there are a number of other impacts arising out of the contentions which contribute to the overall unacceptability of either version of the proposed development (whether that proposed or that advanced as the fall-back option). These other impacts arising from the contentions are discussed below.

Introduction

1. Evidence was given by Ms Blues, for the Applicant, and Mr Swain, for the Council, concerning what might be expected to be the impact of the implementation of the plans in Exhibit A on trees located:

• on 38A Brightmore Street in the vicinity of the boundary with the site;
• within the Brightmore Reserve in the vicinity of the boundary with the site; and
• within the boundaries of the site itself.

1. There were disagreements between these witnesses on a range of matters falling within the first two of the above topics. Given my overall conclusion as to the unacceptability of the Exhibit A plans, it is appropriate that I indicate that I am satisfied that the potential issues arising with respect to the relevant tree on 38A Brightmore Street and the trees in the Brightmore Reserve could be resolved by minor design adjustments as foreshadowed during the course the hearing.
2. Similarly, for those trees presently located on the site proposed to be removed for the purposes of redevelopment (setting aside consideration of Tree 1 in this context), no issues arise.
3. Implementation of the minor protective adjustments necessary for protection of the tree on 38A Brightmore Street, and of the trees in the Brightmore Reserve in the vicinity of the boundary with the site, could have been dealt with by a condition of consent requiring that those minor adjustments be made to the satisfaction of the Council prior to the issuing of a construction certificate.

The Exhibit A plans and Tree 1

1. Tree 1 is a substantial and well-established (but not yet fully mature) Lemon‑Scented Gum (Corymbia citriodora) located close to the Brightmore Street boundary of the site at a point approximately a third of the way to the west from the eastern boundary of the site. When viewed in a streetscape context, Tree 1, because of its location and size, makes a pleasant and not insignificant contribution to the overall vegetative presentation in the streetscape, created by its own presence in conjunction with the visual effect of the overall canopy of the trees in the Brightmore Reserve.
2. Put simply, although Ms Blues was of the opinion that Tree 1 would not require to be removed if the Exhibit A plans were approved and implemented, she proposed that the replacement planting of a substantially advanced Angophora costata (Angophora) in place of Tree 1 (if removed) would be an acceptable outcome.
3. Unsurprisingly, Mr Swain did not agree with this overall conclusion. It was his opinion that implementation of the Exhibit A plans would require the removal of Tree 1 as a consequence of the extent to which the tree's critical root zone would be compromised if the Exhibit A plans were implemented.
4. Although I am prepared to accept, for the purposes of this consideration, that the proposal by Ms Blues that a sprinkler system might be attached to the underside of the cantilevered section of the proposed driveway slab (this area having been included by Mr Swain in his calculation of the extent to which the critical root zone of Tree 1 would be impacted by the Exhibit A plans) could exclude this area from the critical root zone calculations, nonetheless, Ms Blues calculated that the Exhibit A plans would impact 74% of the critical root zone of this tree.
5. In considering whether an impact to this extent would likely necessitate the removal of this tree, it is appropriate to describe the tree and its location in a little more detail.
6. First, it is to be observed that, despite its location and the topographic constraints described below, Tree 1 was firmly anchored at its location with no sign of any root plate lifting in any direction. Tree 1 is located only some 3.6 metres from the paved surface of Brightmore Street and has a limited level area within the grassed kerb in the road reserve to its south and south‑east, coupled with a similarly limited flat area to the east before the ground falls away toward the Brightmore Reserve.
7. To the north (and particularly to the north-west), the ground falls away quite steeply from Tree 1 and, in a north-westerly direction, to structures located on the site. These structures comprise two separate elements. Directly to the north-west is located the corner of the existing residential flat building located on the site. To the west, and extending in a northerly direction to the north‑west of the tree, is a wall structure providing support to the present cantilevered slab that provides the uncovered parking spaces and pedestrian access walkway at street grade serving the present development on the site. It is to be observed that there was a gap between the end of this supporting wall and the existing residential flat building and that this supporting wall, itself, was not an unbroken, solid brick wall but was constructed with a regular pattern of gaps in each of the courses of the brickwork.
8. My impression from the site inspection was that the gap between this wall and the primary structure of the existing development would have permitted access (albeit with a degree of discomfort) to permit examination of the ground behind the wall.
9. Neither of the arborists accessed the area behind the wall for the purposes of seeking to determine whether any of the roots of Tree 1 extended under whatever might be the footing structure of this wall and, hence, there is no information as to whether or not there are roots in this space or, if there are, what might be their significance.
10. In this regard, it is to be observed that Ms Blues did not undertake any hand excavation along the eastern, easily accessible face of this wall to determine whether there were any roots in that vicinity or not. Her trenching to assess where roots might be located was confined to a single, linear, north-south excavation to the east of the tree. No roots of any relevance were found in this excavation.
11. In cross-examination, Mr Swain described how he had endeavoured to look through the gaps in the supporting wall but had not been able to observe anything meaningful as a consequence of the dimensions of the apertures and the thickness of the brickwork constraining what could be seen.
12. Overall, given the absence of any significant root-mapping investigation by Ms Blues to establish the pattern of the roots that presently ensure Tree 1's stability and the fact that, even on her own calculations, there would be a significant impact on the critical root zone of this tree, the Applicant has not persuaded me that it would be possible for this tree to survive if the Exhibit A plans were implemented.
13. In this context, it is appropriate to observe that, as on all aspects relevantly in context, the Applicant bears a persuasive burden to demonstrate that its proposed development is acceptable.
14. As the loss of Tree 1 would be an undesirable impact in the streetscape, not adequately able to be compensated in any immediate sense by the proposed planting of a replacement Angophora, the impact on Tree 1, although not determinative, is a factor contributing to the overall unacceptability of development proposal in the Exhibit A plans.

The Exhibit O plans and Tree 1

1. Although not to a nominated extent, it is clear that the fall-back position offered by the Applicant, using Exhibit O as a vehicle, proposes to seek to narrow, to the maximum extent possible, the driveway from Brightmore Street to the car lift proposed for the site. It is expected that, in an unquantified fashion, this will lessen the impact on Tree 1 of a development on the site if the Exhibit O plans were to be approved. However, the Applicant does not provide any detail as to the extent of this narrowing or the extent to which the impact on the critical root zone of Tree 1 would be lessened.
2. Whilst this aspiration is desirable and positive, its lack of quantification, when coupled with the significantly inadequate root-mapping investigation undertaken concerning the subsurface structure of the root system of Tree 1, means that I can have no confidence that the unacceptable impact from the Exhibit A plans (which I am satisfied would necessitate the removal of Tree 1) would not persist if the Exhibit O plans were implemented. As I earlier observed, the Applicant bears a persuasive burden with respect to such matters, a burden which was not discharged with respect to Tree 1 in the context of the Exhibit A plans and remains undischarged with respect to the Exhibit O proposals. The likely unacceptable impact on Tree 1, which I am satisfied would necessitate its removal (whether immediately or as a result of failure caused by the proposed development in the comparatively immediate future being irrelevant) in either development scenario, contributes to the unacceptability of the Exhibit O fall-back proposal advanced by the Applicant.

Conclusion on arboricultural issues

1. I am satisfied that, in either iteration of the proposed development, it is probable that Tree 1 would require removal. Although the impact on this significant street tree is not determinative, it is another (but small) indicator of the overdevelopment proposed for the site in either iteration of the proposed development.

Introduction

1. For reasons earlier discussed, I pay no heed to any numerical controls which might otherwise have applied had the site not enjoyed existing use rights. My consideration of the setbacks of the proposed development is undertaken on a purely qualitative basis. There are two aspects to the setbacks of the development proposal (common to both the Exhibit A and Exhibit O proposals, as the Exhibit O fall-back position adopts, in setback terms, the footprint proposed in the Exhibit A plans). These setback aspects are those of the building alignment of the western façade of the proposed development on the site and that of the proposed setback of the proposed development at its frontage to Brightmore Street.

The setback to the apartment building on 38 Brightmore Street

1. It is unnecessary to revisit my analysis of the impacts of the proximity of the proposed development on the site to its boundary to the west with 38 Brightmore Street. The narrowing of the separation between the present structure on the site and this boundary by 0.5 metres, when coupled with the linear extension of the proposed development to both the north and south of the existing structure on the site, leads to the increases in impact intensity on the two apartments (particularly the lower of them) on 38 Brightmore Street. Those impacts have earlier been addressed in detail.

The setback to the Brightmore Street frontage

1. First, it is to be observed that the façade of the proposed development in either its Exhibit A or Exhibit O iterations at the Brightmore Street frontage is both articulated and not proposed to be constructed in a fashion with its principal façade elements parallel to the Brightmore Street frontage.
2. At the western end, because of the gentle slope in Brightmore Street, there will be a retaining wall at the Brightmore Street frontage for approximately 11 metres from the site's western boundary. From that point to the western edge of the proposed driveway, there is proposed to be an open palisade fence.
3. For the area behind the retaining wall, there will be lawn which will form part of the private open space of the immediately adjacent apartment.
4. For the area between the façade and the palisade fence, there is intended to be planted landscaping vegetation, including one substantial tree (at the western end of this portion of the setback); several tree ferns and other vegetation expected to provide screening, when fully established, to a height of approximately 2.5 metres maximum. For the proposed development behind this vegetative screening, I am satisfied that there are unlikely to be any resultant privacy issues arising from the proximity of this element of the proposed façade to Brightmore Street.
5. Although the Council's witnesses were more generally critical of the Brightmore Avenue presentation of both iterations of the proposed development, I do not accept their overall assessment in this regard. As both design proposals fail on the bases elsewhere articulated, I do not propose to explore this further.

The presentation to pedestrians using the Brightmore Reserve pathway

1. Although there does not appear to be any relevant objective in the DCP concerning the change in presentation of development on the site to pedestrians using the pathway through the Brightmore Reserve, nonetheless, this is also a relevant matter on a first principles' assessment of the nature here triggered as a consequence of the reliance on the site's existing use rights and the non-derogation principles.
2. There are two observations to be made in this context. The first concerns the less significant (but nonetheless relevant) change in perception of development on the site that would arise, if the proposed development was approved, for pedestrians travelling downhill from Brightmore Avenue, transiting the Brightmore Reserve toward the north in the direction of the playing fields in the bowl of the valley. Second, there would be a more stark change in presentation for pedestrians using the path uphill toward Brightmore Avenue.
3. The change in the factual matrix, which would arise if the proposed development for the site was approved in the fashion proposed in Exhibit A, would remain unchanged if the Exhibit O fall-back proposal was to be substituted. Although there would be some change in detail at the lowest level, as a result of the differences for Apartment 101 between the two versions, this would not alter the overall presentation of bulk and scale of the proposed development to pedestrians using the pathway in either direction.
4. Although the articulation of the northern façade, coupled with the balconies to the proposed units, would break up the presentation of the northern façade (particularly for pedestrians travelling south on the pathway), nonetheless, the extent of the proposed development would come much closer, at its north‑eastern corner, to the pathway.
5. The bulk and scale of this presentation would be particularly "in your face" for pedestrians walking in a southerly direction (although the fact that the path traverses the reserve in an oblique east-to-west direction until the flat area in the vicinity of where the north-eastern corner of the proposed development would be located also means that this presentation would stand more starkly than the present development on the site for any north-travelling pedestrian).
6. Given that this element of the proposed development would extend further to the north and east than the footprint of the present development on the site means that the change in perception (particularly for a south-travelling pedestrian) would be overwhelming. Although this presentation would be broken by the articulation and the balconies, the lack of stepping back up this façade, when compared to setback to the northern boundary of the present development on the site, would unquestionably cause a negative change to presentation of development on the site to pedestrians using this pathway.
7. The eastern façade of the proposed development would be of very little, if any, impact on pedestrians travelling south as their sightline is diverted, because of the oblique traverse in a more easterly direction of the path, after it passes what would be the northern building line of the proposed development.
8. However, pedestrians travelling north down the steps on the pathway until this proposed northern building line would be reached would be confronted with a significantly different development presentation from the eastern façade of the proposed development on the site in either version. This façade, being closer and taller than the present development on the site, would also be significantly dominating of that presentation to pedestrians walking downhill toward that element of the site.
9. As I have no evidence of the extent to which there is pedestrian traffic along this pathway, I am unable to make any significant assessment of the extent to which these negative impacts would actually be experienced. However, negative impacts they would be.
10. In the circumstances, only limited weight can be given to these potential impacts in my assessment of the proposed development. But, nonetheless, these factors must add to (and reinforce), although only to a minor extent, the factors weighing against the proposed development and warranting its rejection.

The proposed "green wall"

1. Each of the Exhibit A and Exhibit O proposals envisages that, along the retaining wall on the western boundary, at its southern end, there would be installed a vegetated "green wall". This feature is proposed in order to soften the outlook from those elements of the proposed development, in either form, that would have fenestration oriented in this direction (however the louvres on such fenestration might be oriented).
2. Mr To submitted that, as a consequence of the height of such a vegetated structure, there could be no certainty as to its maintenance and survival. The implication, in this submission, obviously, was that if the vegetation was not maintained so as to survive in the form proposed, such outlook to that portion of the western boundary would revert to being of an unadorned retaining wall. This, Mr To submitted, would result in a further compromising of the amenity of those spaces.
3. Ms Reid submitted, in response, that it was intended (as outlined in the Statement of Environmental Effects accompanying the original development application) that there be installed an automatic watering and fertilising system to ensure the survival of this "green wall" when installed. Although the present proposed development, in either iteration, does not seek consent for strata subdivision, she proposed that a condition could be imposed, which required that, in the event of strata subdivision, the bylaws for the resultant strata plan could be required to incorporate an obligation being imposed on the Owners' Corporation to maintain this vegetated feature.
4. Whilst this is a comparatively minor matter, the necessity to contemplate imposing such a maintenance requirement on a future strata plan, where satisfying the obligation would require access to the private open space of an apartment, is less than optimal. However, I accept that approaching this matter in that fashion ought not be regarded as contributing to the refusal of either of the development proposals requiring consideration.

The adequacy of the communal open space - Exhibits A and O

1. The location and dimensions of the proposed communal open space shown on Plan DA 109 Issue H for the Exhibit A development proposal is not proposed to be altered if I rejected the Exhibit A development and then proceeded to assess the Exhibit O fall-back position.
2. The proposed communal open space would be located as a rooftop area toward the centre of the eastern edge of the proposed development. It would be a properly accessible space, with that access able to be obtained either by lift or by stairs. This open space would have a pleasant outlook into, or across, the trees on the Brightmore Reserve and would also have pleasant district views to the north, toward the valley and the development beyond it.
3. There are no visual or acoustic privacy issues arising from this communal open space. The dimensions of the irregularly-shaped communal open space (being a maximum north-south length of 8.6 metres and 7.1 metres east-west at its widest point) only results in an area of 41 square metres for an apartment block proposed to contain 14 apartments with 40 bedrooms, on the Exhibit A proposal, and 35 bedrooms, on the Exhibit O fall-back proposal. For the apartments with private open space on the northern façade in either the Exhibit A or Exhibit O version of the proposal, their private open space is sufficiently generous and pleasant to render it unlikely that there would be significant demand from the occupants of those apartments to use the communal open space.
4. As a result, this area is, despite the modesty of its size, as a matter of very fine balance, sufficient for the proposed development in either version. Although there is some criticism by the Council's experts of this communal open space, I am not satisfied that those concerns warrant considering that this design aspect could contribute, in any way, to a conclusion that either the Exhibit A or Exhibit O proposals warranted refusal.

Entering/exiting vehicles

1. A matter not pressed by the Council, but raised by Mr Spring, one of the objectors, concerned traffic issues and the potential for queuing in Brightmore Avenue of vehicles seeking to access the driveway of the proposed development. The potential for such an issue to require addressing was obvious from observation of the street layout during the course of the site inspection.
2. There are two responses to this concern which caused me to be satisfied that it cannot weigh against either iteration of the proposed development for the site. The first arises from the technical traffic analysis prepared by Varga & Associates (Exhibit H). This technical analysis concluded that there was no significant possibility of either an opposing movement conflict or of queuing for two vehicles seeking to enter the site at the same time, with the first of those vehicles being required to wait on site to access the proposed vehicle lift, leaving the second vehicle obstructing traffic in Brightmore Avenue. This expert analysis, in itself, is a sufficient answer to this concern.
3. However, it is also clear that the proposed driveway (even if narrowed, as suggested in the Exhibit O option, in a fashion to permit some additional landscaping on the eastern side of the driveway) incorporates appropriate design elements to accommodate such a limited potentiality.
4. In addition, as Ms Reid submitted, the proposed development on the site is designed to ensure that all vehicle movements for vehicles exiting the site are in a forward direction and that this is a superior traffic position than that which presently applies, where vehicles parked on the present uncovered parking apron must exit the site by reversing into Brightmore Avenue, a movement which is inherently less safe than having exiting vehicles do so in a forward direction.

Conclusion

1. After undertaking a qualitative analysis of the proposed development (without paying regard to any numerical controls which would otherwise potentially have applied had the development not otherwise been prohibited in the R2 Low Density Residential Zone and, consequently, only permissible in reliance on existing use rights), I have concluded, for reasons detailed in the body of the judgment, that the proposed development in Exhibit A is qualitatively unacceptable because of:

• adverse impacts on the amenity of the eastern apartments in 38 Brightmore Street (particularly the lower of those two apartments);
• unacceptable amenity, in a number of respects, for apartments within the proposed development itself;
• the unacceptable impact on the Lemon-Scented Gum (Tree 1); and
• inappropriate presentation of the proposed development in what would be its context when viewed from the Brightmore Reserve.

1. I had invited the advocates to address me on the possibility that the proposed development might be salvaged by adopting an "amber light" approach to it.
2. However, I am satisfied, on consideration of the "amber light" option advanced by the Applicant in Exhibit O as the Applicant's fall-back position, that doing so in the fashion advanced would still result in a development that was unacceptable. Although some amenity aspects of the Exhibit A version were rectified, the Exhibit O version would create new, unacceptable impacts.
3. It therefore follows that it is necessary that the proposed development be rejected.

Orders

1. The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Development Application DA 333/17 for the demolition of an existing residential flat building and its replacement with a new residential flat building (including basement car-parking accessed by a car lift) at 40 Brightmore Street, Cremorne is determined by the refusal of development consent; and 3. The exhibits, other than Exhibits (12) and (13), are returned.

Amendments 16 August 2018 - Table not included at [79]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2018