Mount Annan 88 Pty Ltd v Camden Council

The site

1. The site is Lot 206 in DP 1070297 and is irregular in shape and has an area of approximately 5.5ha. It is located at the corner of Main Street and Annanvale Circuit, and also has frontages to Holdsworth Drive, and Narellan Road.
2. The site is currently vacant and largely cleared of vegetation. Site levels vary from RL92.97 to RL87.40 (generally from west to north east) with lower levels through a drainage easement of a minimum width of 30m running through the western part of the site.
3. Retail/commercial development of the Mount Annan town centre adjoins the site to the south and east, including Mount Annan Marketplace shopping centre directly to the east and on the opposite side of Annanvale Circuit. The northern side of the site is bounded by Narellan Road, an arterial road connecting Campbelltown to Narellan and Camden, although there is no direct access to this road. The areas to the west, south and east surrounding the Mount Annan town centre are characterised by residential dwellings associated with the suburb of Mount Annan.

Relevant planning controls

1. The site is within Zone B2 Local Centre under Camden Local Environmental Plan 2010 (LEP 2010). The characterisation of the proposed use is an issue between the parties and consequently whether the proposed development is permissible in the zone. Clause 2.3(2) provides that the "consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone".
2. Clause 4.3 provides for a maximum building height of 10m. A number of the proposed buildings do not satisfy the maximum building height and the applicant has provided a written request under cl 4.6 to show that strict compliance with the 10m development standard is unreasonable and unnecessary. This was not a conclusion accepted by the council.
3. The proposed development satisfies the floor space ratio development standard in cl 4.4.
4. Camden Development Control Plan 2011 (the DCP) applies.

The submissions

1. In the B2 zone, the parties agreed that "Residential accommodation" is a prohibited use in this zone. "Residential accommodation" is defined in the Dictionary to LEP 2010 as: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks.
2. Clause 2.5 provides additional permitted uses for particular land and states: (1) Development on particular land that is described or referred to in Schedule 1 may be carried out: (a) with development consent, or (b) if the Schedule so provides - without development consent, in accordance with the conditions (if any) specified in that Schedule in relation to that development. (2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.
3. Relevantly Schedule 1 (at cl 26) identifies the site in the following terms: 26 Use of certain land at Mount Annan (1) This clause applies to land at Annanvale Circuit, Holdsworth Drive and Waterworth Drive, Mount Annan, being Lot 206, DP 1070297 and Lots 1 and 5, DP 1129436. (2) Development for the purposes of multi dwelling housing is permitted with development consent.
4. The effect of identifying the site in Schedule 1 is that, notwithstanding the prohibition of "Residential accommodation" in the B2 zone by the Land Use Table, one form of residential accommodation, i.e. "multi dwelling housing", is permitted with development consent.
5. The dispute between the parties is whether the proposed development is characterised as "multi dwelling housing" and is permissible with development consent or is characterised as a "residential flat building" and is prohibited. The relevant definitions from the Dictionary are: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.
6. Ms Duggan SC, for the applicant, submits that the proposed development is characterised as "multi dwelling housing" and as such is a permissible use in the B2 zone. For the development to be characterised as "multi dwelling housing" each dwelling must have access at ground level. The proposed development provides access to the dwelling "at ground level" and similarly the dwellings above (over 2 levels) "at ground level" by way of a stair from ground level that leads to the dwelling on the first and second floors. Importantly, Ms Duggan submits that the stair that leads from the ground level to the first floor and then to the second floor is part of that dwelling. Ms Duggan relies on the definition of "access" in the Macquarie Dictionary (Third Edition) and the New Shorter Oxford English Dictionary to support her position.
7. Mr Hemmings SC, for the council, submits that the proposed development is characterised as a "residential flat building" and as such is a prohibited use in the B2 zone. He submits that it is necessary to look at how LEP 2010 operates to understand the difference between "multi dwelling housing" and a "residential flat building". The words "at ground level" need to be compared to other definitions in the Dictionary where the word "access" is used, being: car park means a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not.(my emphasis) gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: . (g) car parking to meet any requirements of the consent authority (including access to that car parking), and .(my emphasis) (h) any space used for the loading or unloading of goods (including access to it), and .(my emphasis)
8. Mr Hemmings submits that the words "access to" in the above definitions must have a different meaning to the words "access at" in the definition of "multi dwelling housing". He notes that the definition of "residential flat building" is silent on any requirements for access.

Findings

1. In considering the different submissions, I agree with Ms Duggan that the proposed development is characterised as a "multi dwelling housing". The definition of "multi dwelling housing" is not overly different from the definition of "residential flat building" except that to be defined as "multi dwelling housing" the dwellings must be "on one lot of land, each with access at ground level". Even though the form of housing proposed in this application with 1 bedroom dwellings on ground level and the 2 and 3 bedroom dwellings over two levels and above the ground floor units, is not a common form of development; this form nonetheless satisfies the definition by ensuring that each dwelling is accessed from ground level; with direct access to the ground level dwellings or via stairs to the upper level dwellings.
2. If the proposed development fits within the definition of "multi dwelling housing", it cannot be a "residential flat building".
3. For this reason, the proposed development is characterised as a "multi dwelling housing" and is a permissible use within the B2 zone by way of cl 26(2) of LEP 2010.

Height

1. Expert evidence for the council was provided by Mr Jeremy Swan, a town planner and Mr Michael Harrison, an architect and urban designer. Expert evidence for the applicant was provided by Mr Jeff Mead, a town planner and Mr Alan Cadogan, an architect and urban designer.

The cl 4.6 written request

1. Mr Mead prepared the cl 4.6 written request that identified the breach of the height development standard although Mr Swan expressed concern that the plans did not provide him the opportunity to confirm the height of the proposed buildings. While Mr Swan maintained his concerns, the assessment of the height breach was based on Mr Mead's figures in the written request.
2. The written request provided the following table that identified the height of the proposed buildings: Heights (By Building) - Revision F Plans Building Maximum Height (per LEP definition) A 10m B1 11.02m B2 10.16m C1 10.705m C2 10.66m D1 11.66m D2 10.495m E1 12.505m E2 11.57m F1 10.545m F2 10.09m G1 10.895m G2 10.435m H1 10.15m H2 9.81m I 9.8m

1. The Dictionary to LEP 2010 defines building height and ground level (existing) as follows: building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point.
2. The written request is divided into the following sections, each dealing with a specific aspect of cl 4.6, being: 1. consistency with the height development standard objectives and the zone objectives (cl 4.6(a)(ii)); 2. sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)); and 3. whether compliance is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)).
3. On the first section, the written request deals with each of the height development standard objectives. The first height objective is: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,
4. The written request states that it is clear that where planning controls envisage a change in the form and type of development in a locality, weight should be given to the future rather than the existing character (Project Venture Developments v Pittwater Council [2005] NSWLEC 191). The site is currently vacant and therefore must be considered to be located in an area that is undergoing transition. Furthermore, surrounding development, particularly in the R3 zone to the north-west also does not widely reflect the type of development envisaged for that zone. The R3 zone adjoining the site envisages a medium density development (including multi dwelling housing) up to a maximum height of 9.5m.
5. The desired future character for the area near the site in terms of building height is: B2 zone - 3 storey development; R3 zone to the north-west - 3 storey multi-dwelling housing development with a 9.5m height limit; and IN1 and IN2 land to the north - 11m height limit.
6. In the context of these controls, it is considered that the proposal for 3 storeys in height will be compatible with surrounding development, despite the proposed height variation.
7. Also, and with the exception of Precinct E buildings, the extent of non­compliance is generally 1m or less and in many cases relating to parts of pitched roof elements. With the exception of Precincts B, C, D and E, the proposed buildings are not adjacent to any shared residential boundaries but are adjacent to roadways or other commercially zoned land subject to the same planning controls. Where parts of the development are not adjoining residential uses; the areas of non-compliance are considered to be less sensitive in terms of visual or potential amenity impacts.
8. The written statement also notes that the height non-compliance results from grading of the land to provide building platforms that are compliant with flood planning levels and the ground floor level of the proposed buildings will be at this planning level. The parts of the development within Precincts B, C, D and E which are adjacent to an R3 zone and existing residential development will not dominate any streetscape or significant public views to the site.
9. In terms of views from private property to the site, the non-compliant parts of the proposal are located a minimum of over 30m from the adjoining R3 zone boundary even though the minimum DCP setback is 4m and 6m to ground and first floor levels respectively. The building with greatest non-compliance, being in Precinct E, results from the lowest land form and greatest flood affectation, are over 50m and up to 80m from the common boundary. The intervening area between the common boundary and non-compliant building form will be planted with significant vegetation immediately adjoining the boundary as well as street tree planting at regular intervals along the proposed Parkway.
10. Furthermore, the 3 storey form has been designed in this area with a first floor that is setback an additional 3m and upper level that is recessed behind a balcony on the north-western side facing the R3 zone. This further assists with ameliorating building bulk and perception of the non-compliant parts of the buildings.
11. The culmination of the abovementioned design factors will mean that the proposal will not only read as a three storey development and will be compatible with potential 3 storey development in the adjoining R3 zone, the commercial development to the south-east within the B2 zone and industrial development to the north. Specifically, the Court has recognised that buildings do not have to be the same height in order to be compatible or in character (Veloshin v Randwick Council [2007] NSWLEC 428).
12. The second height objective is: (b) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development,
13. The written request states that visual impact has been addressed in the discussion on objective (a). The proposal provides for a landscaped area of 32% which exceeds the minimum requirement of 30% and has a site coverage of 36% which is significantly less than the maximum requirement of 50%. The building form is broken down into a group of buildings, allowing for views between buildings, across landscaped areas, and reducing overall building mass. The built form is a minimum of 32m from the boundary with adjoining properties which are also zoned to allow 3 storey medium density developments. Intervening landscaping between those properties and the proposed buildings will further reduce visual impacts. Accordingly, the proposal is considered to have been designed to minimise visual impact to existing and any future development.
14. The adjoining properties do not enjoy any significant views across the subject site that will be disrupted by the proposal. The proposed building form is generously set back from the adjoining property boundary to maintain a vast outlook across the rear boundary of those dwellings and the breaks between buildings allow for view lines deep into the site across landscaped areas. Accordingly, the proposed height non-compliance will have no adverse impact on existing views and meets this element of objective (b).
15. In terms of privacy, the proposal provides for a minimum separation of 32m from the adjoining property boundary and a minimum of approximately 35m to the face of the nearest dwelling. The proposal includes intervening vegetation between some of these buildings. It is noted that Part 2.1.4 of the DCP seeks to protect against direct overlooking. On any test, with these separation distances, the proposal cannot be construed as allowing for overlooking or having adverse visual privacy impacts. It is also considered that the proposed separation will ensure that any acoustic privacy impacts would be consistent with that expected of a medium density residential area. Accordingly, the proposal is considered to minimise loss of privacy and the height variation will result in no adverse impacts.
16. In relation to solar access, the written request notes that the proposal provides a minimum separation of 30m to the nearest adjoining property boundary which is in fact to the north-west of the site. The proposal casts no shadow on adjoining residential properties and therefore has clearly been designed to minimise loss of solar access to existing development.
17. Overall, the development will not create any significant or noticeable environmental or amenity based impacts on surrounding properties or in the immediate locality. Accordingly, the proposal is considered to meet objective (b).
18. The third height objective is: (c) to minimise the adverse impact of development on heritage conservation areas and heritage items.
19. The written request states that this objective is irrelevant for the assessment of this application.
20. The B2 zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that mixed use developments present an active frontage to the street by locating business, retail and community uses at ground level. • To minimise conflict between land uses within the zone and land uses within adjoining zones. • To enable other land uses that are complementary to and do not detract from the viability of retail, business, entertainment and community uses within the zone.
21. On the matter of the zone objectives, the written request states that the breach of the height standard has no conflict with these objective because: it does not seek to preclude or limit residential use within the zone (first objective), it is not directly applicable to the proposed development, being one which does not permit employment generating uses to be included (second objective), by avoiding the reduction in dwellings that might otherwise have occurred (by strictly complying with height) the development's ability to maximise public transport patronage and encourage walking and cycling is undiminished (third objective), it does not apply to the proposal given it is not mixed development (fourth objective), the proposal assists with minimising conflict between residential and non-residential uses as residential use adjacent to the zone boundary with the adjoining R3 zone as opposed to commercial development which is permitted in the zone provides for consistency in use to minimise conflicts (fifth objective), and the proposed residential uses must be construed as complementary to the viability of non-residential uses. The proposal will increase the residential population that will support commercial uses (sixth objective).
22. On the question of whether there are sufficient environmental planning grounds to justify contravening the development standard, the written statement concludes that the proposed height variation provides several benefits to the overall built form. These changes, and their associated environmental planning benefits, are that the proposal:

• exceeds the minimum landscaped area required and provides a significant amount of deep soil,
• provides site coverage significantly less than the maximum allowed,
• provides for a setback to adjoining residential properties well in excess of the minimum requirement,
• provides for ground floor levels that comply with required flood planning levels and therefore makes economic use of flood affected land in an appropriate manner,
• has been broken into several separate buildings to allow visual relief and landscaping between buildings,
• provides for solar access for 3 hours at mid-winter to 96% of dwellings cross-ventilation to 100% of dwellings, and
• provides for a 3 storey built form which is that encouraged by the planning controls.

1. The written request states that compliance with the height development standard is unreasonable or unnecessary in the circumstances of this case for the following reasons:

• the building will present as 3 storeys and will comply with the 10m height control when measured form finished ground level,
• the filling of low points across the site to create a level (and flood compliant) building platform is a reasonable and sensible outcome for the site and one that would be required for any form of development on the land, and
• the consequences attributable to the development as proposed, including the height non-compliance, are negligible.

1. If strict compliance with the height control will inevitably have one or more of the following consequences:

• reduced internal amenity for the apartments,
• reduced visual attractiveness of the development, and
• provide for a three storey form which stepped in height to match the spot levels of the site or remove the whole upper level of the development.

1. The written request concludes by stating for the reasons set out, the variation to the height standard be supported.

The council's response to the s 4.6 written request

1. Mr Swan addresses the contents of the written request but maintains that he is not satisfied that it is possible to accurately determine the height of buildings even with the additional information provided during the joint conference. He is of the opinion that to properly check the height of the buildings, proper elevations with dimensions and levels should be provided.
2. In any event, Mr Swan concludes that the non-compliance is not well founded and he could not support such a variation for the following reasons:

• even though the proposal may be less than 10m when measured from finished ground level, this is not the test in cl 4.6; the test is existing ground level and 8 out of the 9 precincts do not comply,
• a development should take into account the existing constraints of the site, including flooding in determining what is appropriate development,
• a 3 storey built form that breaches the height limit across the site with the exception of one precinct, which is the furthest from the residential precinct is not appropriate given the constraints of the site and the existing character of the area,
• the highest building and therefore greatest non-compliance occurs within Precinct D and E which adjoins a predominately single storey residential area. The residential precinct adjoining the site to the north west has a built form of predominately single storey dwellings with some 2 storey dwellings. There are no 3 storey buildings. This proposal will not fit within the existing or desired character of the area,
• the proposed development does not satisfy objective (a) of the height objectives, in that the proposed development is not compatible with the existing and desired character of the locality, particularly the area to the north west which is predominantly single storey dwellings,
• the built form adjoining the residential development to the north-west should be reduced to 2 storeys so that it complies with the height control and provides a transition to the single dwellings. This change would satisfy objective (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired character of the locality,
• there is no justification on town planning grounds for the non-compliances with the height control and the proposal fails to satisfy the height objectives as contained in cl 4.3. In particular the development does not ensure that buildings are compatible with the height bulk and scale of existing and desired future character of the locality (objective (a)),
• the proposed development does not satisfy the objective contained within D2.2.3 of the DCP in particular objective (1) in that the proposed development is not a high quality development which features a high standard of urban design and high level of amenity for residents,
• the proposal does not satisfy controls within Part D2.2.3 of the DCP, in particular control (5), (6), (7), (8) and (12).
• the development will not blend in with its surrounds and be in keeping with the character of the area. The development is not designed to be compatible with the streetscape and is not attractive when viewed from within the site. The development does not ensure that all units are designed to face and address both external and internal private access roads / driveway, and
• the development does not create an appearance of a single or group dwellings that are separated by gardens and ancillary structures, and the development does not clearly identify each unit, its entrance, and visitor car parking to enable a visitor to easily understand the development's layout.

The assessment framework

1. Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
2. Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
3. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
4. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

The zone objectives

1. The B2 zone objectives are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that mixed use developments present an active frontage to the street by locating business, retail and community uses at ground level. • To minimise conflict between land uses within the zone and land uses within adjoining zones. • To enable other land uses that are complementary to and do not detract from the viability of retail, business, entertainment and community uses within the zone.
2. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. The zone objectives have little, if any use in considering whether a variation to the height standard should be accepted as the objectives focus on the broader issue of the appropriateness of land uses rather than the finer issue of building height.
3. Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

The height standard objectives

1. The height standard objectives at cl 4.3(1) are: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development, (c) to minimise the adverse impact of development on heritage conservation areas and heritage items.
2. After cross examination Mr Swan accepted that there was no inconsistency with objective (b) because of the considerable separation distance between the existing dwellings to the north-west and the proposed development. That distance minimised "the visual impact, disruption of views, loss of privacy and loss of solar access to existing development": Mr Swan and Mr Mead accepted that objective (c) was not relevant as the objective related to "heritage conservation areas and heritage items". I accept the agreed position of the experts on these objectives.
3. The objective in dispute is objective (a) and for considering this objective, I have adopted the meaning of "compatible" as set out in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, that being "capable of existing together in harmony". Veloshin is also helpful where it states that "bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things". While the term "locality" was not specifically defined by the experts, the general agreement was that it was the general area that could be viewed from the site.
4. The site has the same zoning as the adjoining Mt Annan town centre to the south-east (Zone B2 Local Centre). The B2 zone has a maximum height of 10m on the Height of Buildings Map in LEP 2010. The land adjoining to the north-west is within Zone R3 Medium Density Residential and has a maximum height of 9.5m on the Height of Buildings Map. "Multi dwelling housing" and "attached dwellings" are the relevant permissible land uses in the R3 zone. The land to the west and diagonally opposite the site is within Zone R2 Low Density Residential. This zone also has a maximum height of 9.5m on the Height of Buildings Map and the relevant permissible land uses include "dwellings" and "dual occupancies". "Multi dwelling housing" is prohibited in this zone. The north-eastern boundary is Narellan Road and on the opposite side of the road are Zone IN1 General Industrial and Zone IN2 Light Industrial.
5. To satisfy objective (a) (and progress to a merit assessment) the development must be compatible with the height, bulk and scale of the existing character and the height, bulk and scale of the desired future character of the locality (my emphasis). Objective (a) calls for a consideration of whether the proposed development is compatible with both the existing character of the locality and the desired future character of the locality.
6. The existing residential character of the locality was clear from the site inspection and could be described as exclusively residential to the north-west and west of the site with the residential development consisting of predominantly single storey detached dwellings with some interspersed two storey detached dwellings. It is this part of the locality that the proposed development needs to have the highest degree of compatibility with. The industrial land, on the opposite side of Narellan Road and the commercial uses to the south-east are significantly less important in considering the question of compatibility with the character of the locality. The industrial land is separated by Narellan Road and vegetation from the site and has clearly has an industrial character and the Mt Annan town centre has its own distinctive retail character.
7. With the benefit of the site inspection, an understanding of the zoning requirements in the locality and even accepting the applicant's assessment of the breach of the height standard in the written request, I am satisfied that the proposed development is not compatible with the height, bulk and scale of the existing character of the locality. In this case, the incompatibility is a combination of the bulk and scale, as well as the height. I would accept that the distance from the residential development to the north-west and south-west somewhat mitigates the impact of the breach of the height standard but when the height is considered in conjunction with the bulk and scale of the buildings; this leads to a finding of incompatibility with the existing character of the locality... .
8. The unacceptable height, bulk and scale, in my view, area a direct result of the design of the development. I agree with the comments of Mr Harrison where he states that the development lacks variety. He states that the development has the same building height for all 16 buildings and the same built form principle for all 16 buildings. There are 246 residential units in 16 buildings in 9 precincts and 12 unit types however there are only 6 building types in the drawings although on closer examination, Mr Harrison concludes that the drawings indicate only 3 whole building types, further heightening his concerns.
9. Mr Harrison describes the proposal as having an overwhelming amount of sameness in built form and building type which is repeated in the design of each whole building over and over again to the point of monotony. For example, if walking along The Boulevard, all four buildings on the western side are exactly the same. Similarly, if walking along The Parkway all four buildings are also exactly the same. Even walking along Annanvale Circuit, the buildings look very similar and Mr Harrison states that a person would mainly see sides of buildings that are very similar and of the same height. Further, Mr Harrison notes that while there is a range of apartment types, there is a very limited range considering the development comprises 246 residential units. Such a limited range exacerbates the visual sameness of the design. I also agree with Mr Harrison that the height, bulk and scale issues may potentially be addressed through closer attention to the design in the areas that adjoin existing residential developments through reduced height and a design more sensitive to the sites residential neighbours.
10. While Mr Cadogan maintains that the design includes a range of building heights with some lower scale elements along the Annanvale Circuit frontage and in the vertical access (lifts and stairs) to the basements between building blocks; these elements are largely unnoticeable when the development is considered as a whole. Similarly, the use of different materials, the curved nature of the new streets, upper level setbacks and building separation, in my view, do not achieve any meaningful relief from the regular and sameness of the design. I do not accept Mr Cadogan's conclusion that the design provides a balance of built form and open space, with the result that the relatively consistent 3 storey form is an appropriate response given the context close to the Mount Annan town centre. While I would accept that a 3 storey form (but not necessarily the proposed form) could provide an appropriate response to the Mount Annan town centre; the critical relationship with the nearby residential development in the locality is unacceptable.
11. The area to the south-west is zoned R2 and is likely to retain its single residential character under this zoning however the proposed development will impose unacceptably on this character by the 3 storey form on the opposite side of Holdsworth Drive. Further, the internal road layout and car parking provide a minimal setback to Holdsworth Drive and reinforce the difference in character between the site and the R2 zoned area. These matters were addressed at the hearing and while they can potentially be addressed, the height and the bulk and scale brought about by the repetitive design and grouping of the buildings are not so simply resolved.
12. The written request places considerable weight on the R3 zone of the land to the north-west and the permissible forms of development in that zone to argue that the proposed development will be "compatible with the height, bulk and scale of the….desired future character of the locality". The desired future character is seen as "multi dwelling housing" or "attached dwellings" where development can have a maximum height of 9.5m. The written request states surrounding development, particularly in the R3 zone to the north-west does not widely reflect the type of development envisaged for that zone. In response, there was no evidence to suggest that the area to the north-west was an area in transition to the higher density form of development envisaged by the R3 zone. The resident evidence from this area expressed no desire or willingness to embrace this form of residential development and for the 5 years, since the coming into effect of LEP 2010, the single storey detached residential form has not changed. To all intents and purposes this area remains a low density residential area, despite the R3 zoning. Even if this area eventually moves towards higher density development through approvals for multi dwelling housing, the concerns expressed earlier about the lack of variety and the grouping of the buildings in the design and the impacts of the height, bulk and scale remain valid and lead to finding that the combination of the height, bulk and scale of the proposed development is inconsistent with "the future …. character of the locality".
13. While the written statement states that the height non-compliance results from grading of the land to provide building platforms that are compliant with flood planning levels, I do not accept that this is a valid reason for supporting the variation to the height standard. The flood prone nature of the site is a natural constraint to the development of the site and needs to be reflected in the design of any buildings. It does not follow that given such a constraint that the full potential of the land can be realised.
14. Pursuant to cl 4.6(4)(a)(ii). I find that the proposal is not consistent with objective (a) of the height development standard in that it is not compatible with "the height, bulk and scale of the existing and desired future character of the locality" and as such development consent must not be granted. Does the written request demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?
15. I do not accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It cannot be reasonably argued that the building will present as 3 storeys and will comply with the 10m height control when measured form finished ground level as the means of measuring height are clearly set out in LEP 2010 and the proposed development fails, even on the applicant's own evidence.
16. The ability to fill the site allows part of the site to be developed that otherwise could not be developed because of flooding. Unsurprisingly, the development does not reach the maximum FSR or the minimum landscaped area or setbacks because of the flooding affection. I also do not accept that the consequences of the height non-compliance are negligible. The height, combined with the clustering of the buildings above the flood level to achieve the proposed floor space creates a poor urban design outcome as set out in the previous section.
17. The desired planning outcome, in relation to design, is set out in the DCP where it states development should: (p D39): ..avoid repeating designs used in other developments, particularly those located in close proximity to the proposal. It is, however, recognised that there may be instances in a planned development where repetition of a design element is used to create a theme development. These proposals will be considered on the merit of the design. Forms of differentiation and interest are encouraged in all dwellings.
18. Also, any suggestion that strict compliance with the height control will reduce internal amenity for the apartments or reduce visual attractiveness of the development or provide for a 3storey form which stepped in height to match the spot levels of the site or remove the whole upper level of the development is self-serving and shows little understanding of the real issues raised by the council over the breach of the height standard. The comments of Mr Harrison clearly show that an acceptable form of multi dwelling housing could be constructed on the site but not with the same overall floor area as proposed in this application. While the written request states that a reduction in height will reduce the internal amenity for the apartments, I accept the evidence of Mr Harrison that the present development, in some units, already provides for poor amenity. For example, some bedrooms have dimensions less than 3m.
19. Pursuant to cl 4.6(3)(a) and cl 4.6(4)(a)(i), I find that the proposal does not demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and as such development consent must not be granted.
20. Are there sufficient environmental planning grounds to justify contravening the development standard?
21. Pursuant to cl 4.6(3)(b) and cl 4.6(4)(a)(i), I find that the proposal does not demonstrate that there sufficient environmental planning grounds to justify contravening the development standard for the reasons set out in pars 65 to 78, and as such development consent must not be granted.

Design

1. The consideration of the cl 4.6 written request raised the main concerns of the council experts on the repetitive and lack of variety and the inadequate area to provide the amount of development proposed given the flood affectation.
2. Mr Harrison highlighted other areas that impacted on the amenity of future residents such as unit layouts, the size of some bedrooms and the walking distance from the basement carpark to units. These are matters that would have required further attention by the applicant if the issue of height, bulk and scale did not warrant the refusal of the application. Similarly, the matter of waste disposal was not satisfactorily addressed at the hearing and would also need additional detail on how this would operate effectively for the future residents of the development.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 626/2014 for the construction of a residential housing development at 1-5 Main Street Mount Annan is refused. 3. The exhibits are returned with the exception of exhibit 4.

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G T Brown Commissioner of the Court 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: 01 March 2016