New Street No. 1 Pty Ltd v Waverley Council

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in town planning. Mr Anthony Betros was engaged by the applicant and Mr Joseph Vescio by the Council.
2. Joint expert reports were prepared by the planners which I have read and considered.

Assessment of Clause 4.6 Variation request - Floor Space:

1. It is clear from a reading of cl. 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on two variation requests: for floor space and for building height.
2. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. Are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. Are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. Have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. Have considered 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. I have applied these tests to the current application in the following.

What is the Floor Space approved and proposed?

1. The parties and their experts are not agreed as to the extent of the noncompliance with the FSR control that is proposed by the application, or the FSR approved by the existing consent for the site.
2. Gross Floor area (GFA) is defined in LEP 2012 as follows: "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: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above."
3. The experts agree that the assessment report that recommended the approval of the existing consent for the site (refer paragraph [32(12)]) concluded the FSR complied with the control of 1:1 (Exhibit 7).
4. Following a review of the approved plans the planning experts agree the following floor areas were omitted from the calculation of GFA, but applying the definition at [39] constitute floor space in the existing consent for the site: "Bicycle parking, motorbike parking, storage, surplus parking and manoeuvring to the surplus parking, waste rooms, garbage truck holding and manoeuvring areas and walkways enclosed on both sides." (Exhibit 7) The experts also agree the resident gym should constitute floor space.
5. As a result of the above the experts conclude the existing consent for the site has an FSR of 1.52:1, or 3405m² of GFA. I accept this assessment of the GFA and FSR of the existing consent.
6. Mr Betros and Mr Vescio differ in their evidence as to what areas should be included or excluded in calculating the GFA in the current development application.
7. Mr Betros calculates a GFA for the proposal of 3935m², and an FSR of 1.76:1.
8. Mr Vescio agrees with this GFA calculation, but argues that the plant rooms identified within the ground retail areas (30m²) should also be included as it is unlikely they will be exclusively for mechanical services or ducting, and that the Level 4 stairs, as they are not common vertical circulation (18m²). Accepting Mr Vescio's analysis the GFA for the proposal is 3983m², with a resulting FSR of 1.78:1.

Findings

1. I am satisfied that the application of the gross floor area definition [refer paragraph 39] to the architectural plans allows for the exclusion of the plant rooms on the ground floor. The plans designate this area for plant room use and thus they fall within the exclusion at (f) in the definition. If consent is granted, this is the use and purpose authorised for these areas of the floor plate. As a result these areas do not form part of the GFA of the development.
2. I disagree with Mr Vescio's categorisation of the Level 4 stairs. I am satisfied that they form part of the common vertical circulation of the building as they are a continuation of it. In my view it is not the case that they are independent and therefore serve only the upper floor.
3. Based on the evidence I am satisfied that the GFA sought by the development application is 3935m² and therefore an FSR of 1.76:1.

Consistency with the zone objectives:

1. It is the evidence of Mr Vescio that the proposed commercial space fronting Chesterfield Lane has the potential to impact on the habitable spaces in adjoining properties that front the lane. In particular his concerns relate to noise and the lack of information provided by the applicant as to the use proposed for the commercial space and its management. He argues that in the absence of such critical information it can be reasonably concluded that adverse impacts will occur (Exhibit 4).
2. It is Mr Staunton's submission that Council has contended that the application provides insufficient information about the commercial space proposed to allow an assessment of impacts. It is his submission that in the absence of an acoustic report the Court has insufficient evidence to conclude that the proposed non-residential use will not result in adverse impacts on the amenity of existing and future residents.
3. It is the evidence of Mr Betros that the development application before the Court does not propose or seek consent for the use of the commercial premises. As such the use of the space, and any impacts that arise from it would be the subject of a future application, and assessment.

Findings

1. On the basis of the evidence of the planning experts, and the variation request (Exhibit 4), I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the B1 zone as outlined at [19]. My reasoning is as follows: 1. It has been the practice of the Court to follow the decision of Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] in assessing the compatibility of a development with the zone objectives. The relevant principle is as follows: "the guiding principle then is that 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 is compatible." I accept that it can be reasonably argued that the proposed development is consistent with the objectives of the zone in that it will provide small scale retail uses for the surrounding neighbourhood. The Council does not contend that the application has any impact on the viability of Waverley's existing business centres as places of vitality for investment, employment and cultural activity. 1. I accept the evidence of Mr Betros that the application before the Court does not propose a use for the commercial space. As such it does not generate an acoustic or other amenity impact on adjoining neighbours. By reference to the proposed conditions of consent, condition 8 requires approval of the initial use of the commercial spaces and confirms no use is approved by the current application (Exhibit F). Therefore I accept that it can be reasonably argued that this proposed development is not inconsistent with the objective of ensuring non-residential uses do not result in adverse impacts on the amenity of existing and future residential premises.
2. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is not inconsistent with the zone objectives.

Consistency with the objectives of the standard in question:

1. At [25], I listed the objectives of cl 4.4: Floor Space. In the circumstances of this case, objective (b) (c) and (d) are the most relevant.
2. In summary the Mr Betros argues the variation to the FSR standard is justified on the following basis: A significant proportion of the additional FSR is contained within the approved envelope A significant proportion of the additional FSR is within the site specific building envelope for the site The proposed FSR is well below that generated by the site specific building envelope The recessed nature of the additional two units at the front of the site does not generate any unreasonable streetscape or amenity impacts The spatial separation to surrounding properties is well beyond that typically found in the context and meets ADG separation requirements for the residential units There is no discernible shadow impacts associated with the additional height, bulk and scale The proposal provides for improved activation to Chesterfield Lane without creating any unreasonable shadow, privacy or view impacts There is more than sufficient parking to accommodate the additional commercial and residential units associated with the proposal whilst the surrounding traffic network can also accommodate the additional traffic generated by the proposal The additional FSR is provided in an integrated manner with the approved development (noting that the same architects are involved) which provides for a compatible and cohesive design outcome The additional FSR represents a sustainable and orderly use of the site, including a more efficient utilisation of the approved envelope by converting void and plant areas within the basement to commercial and residential units, along with additional parking The additional FSR provides for 7 high quality residential apartments as well as a well-designed and located commercial unit. 70% (5 of 7) of the new apartments obtain in excess of 2 hours solar access to their primary living and private open space areas whilst also achieving cross ventilation to more than 60% of apartments. (Exhibit 4)
3. On the basis of the above it is Mr Betros' evidence that there are circumstances particular to the subject site that result in the FSR variation being reasonable in the circumstances of the case.
4. Mr Betros' assessment of the developments consistency with the objectives of the FSR standard is summarised in the following: 1. "(b) to provide an appropriate correlation between maximum building heights and density controls,"

• the units fronting Chesterfield Lane are within the height plane identified in DCP 2012, refer paragraph [30(2)];
• the built form is articulated and has compliant front and side setbacks;
• partial fifth floor is setback 21.42m from the rear (Chesterfield Lane) boundary
• the proposal achieves as good or better streetscape, external and internal amenity outcomes than would be achieved by a compliant scheme. (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality
• the subject site adjoins another development on a large site ("Ocean View" Apartments, 107 McPherson Street). This site, in conjunction with the subject site, has a character that is differentiated from the development in the locality,
• the setback of the fifth floor, and the stepped walls of the built form minimise the proposals impact on the Macpherson Street, and Chesterfield Lane streetscapes.
• Mr Betros argues that the streetscape in Macpherson Street can accommodate the 'glimpses' of the upper floor that will be perceived as these views will be seen in the context, or the backdrop of the Ocean View Apartments. (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
• the proposed additional fifth floor will not result in any adverse external overshadowing impacts beyond that generated by the existing approved building.
• the additional FSR does not generate any view impacts.
• the substantial separation distances ensure the proposed development will not generate adverse visual or acoustic impacts
• the specific building envelope for the subject site contained within the DCP [refer paragraph 30(2)] generates an FSR of 2.1:1. The proposal with an FSR of 1.76:1 and is within the DCP envelope for the subject site.

1. In the alternative Mr Vescio argues that the proposal is an overdevelopment of the site, and that there are no extenuating circumstances that justify the breach of the controls sought by the applicant. His reasoning is summarised as follows: 1. The extent of variation sought is more appropriately considered as a planning proposal, not as a development application. Mr Vescio's evidence is that the variation does not fall within the parameters of "an appropriate degree of flexibility" as provided at Clause 4.6 (a); 2. that the applicant places undue emphasis on the role of the building envelope detailed in DCP 2012 to override a development standard in LEP 2012. It is Mr Vescio's evidence that in developing the site the applicant has not adopted the massing and distribution of built form depicted in the DCP envelope control. In particular the development does not provide for the 12m separation between the McPherson Street built form and the built form fronting Chesterfield Lane as detailed in the DCP. 3. the site adjoins R2 low density residential development to the north and south, and an R3 medium density zone to the west that has a lower height and FSR control than the subject site. The site is zoned a neighbourhood centre which is the lowest order business zone. As such the need to respect the amenity of adjoining properties, and the scale relationship between the proposed development and current or future development of adjoining sites is fundamental. 4. the prominence of the fourth floor addition is underplayed by the architectural drawings. It is Mr Vescio's evidence that the absence of depth or shading in the design will make it visible and prominent from a series of vantage points. (Exhibit 4)
2. In relation to the compliance of the proposed development with the objectives of the FSR standard it is Mr Vescio's evidence is summarised in the following: 1. (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality

• The height and FSR standards have been formulated to collaboratively achieve the desired future character. The exceedance of both controls by the proposal affects the developments compatibility with the desired future character.
• Mr Vescio argues that the applicant undue emphasis on the adjoining "Ocean View" Apartments in establishing the character of the streetscape and the locality. It is Mr Vescio's evidence that the character is not defined by one built element and that the applicants streetscape elevation (refer below) demonstrates that the dominant character is one of two and three storeys, across less frontage that that proposed by the application.
• Mr Vescio's evidence is that in assessing compatibility as required by the objective, regard must also be had to the future character as defined by the planning controls. It is his evidence that there is old stock of 2 storeys within this strip, this will in time redevelop to three (3) storey residential flat buildings or further east, 3 storey shop top housing. The immediate adjoining building to the west is three (3) storeys and whilst the immediate building to the east is two storeys, it has the reasonable expectation to be developed to three (3) storeys (Exhibit 4).
• It is Mr Vescio's conclusion that the development proposed is not compatible with the bulk, scale, streetscape and existing character of the locality and therefore does not warrant a variation to the FSR standard under cl 4.6. He argues: "The Council has allowed for a 4 storey building on the site with(in) its permitted height control on the basis that some variation could produce compatibility. The addition of a further storey creating a 5 storey appearance to the (sic) Macpherson Street will exaggerate the bulk and scale of the building and create a further incongruent building which would be incompatible with the bulk, scale, streetscape and character of the locality. The additional visual bulk and scale of the entire development spread across the site is also not compatible with the existing and likely predominant scale of development as presented to Chesterfield Lane. From the rear yards the development has the potential to create a visual layering / stacking of built form that reads as seven (7) habitable storeys." (Exhibit 4) (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. - It is Mr Vescio's conclusion that the effect of this objective is that variation can only be permitted if there is NO impact on the amenity of neighbouring properties.
• He disagrees with the assessment of Mr Betros and concludes the development results in the following adverse impacts: 1. Overshadowing to existing adjoining properties in Chesterfield Lane, and impacts on future potential development of these properties; It is agreed between the experts that the proposal development will overshadow the existing development in Chesterfield Lane. Mr Vescio argues that the increased overshadowing, the visual bulk and proximity of the additional units also prejudices the reasonable expectations of adjoining properties to erect secondary dwellings above laneway garages without heavy screening which would in turn compete with solar access (Exhibit 4). 1. reduction in solar amenity and visual privacy to approved apartments within the proposed development as a result of the introduction of additional units; It is Mr Vescio's evidence that the proposal will create privacy conflicts within the development. He notes that this impact will occur between: the terraces of unit 401 and 402; from the balconies of Apt 02. Apt 06, Apt 10 and Apt 14; and Level 1 elevated walkways into the courtyards of G02, G03, and G04; overlooking from the G03 roof terrace through the glass room of G04 (Exhibit 4). 1. Additional traffic generation with resultant noise and inconvenience; The evidence of Mr Vescio is that the assessment of traffic impacts should not be focused on the generation of the 7 units and the additional commercial space but rather on the impacts associated with the generation of traffic from the additional 32 car spaces (Exhibit 4). It is Mr Vescio's conclusion that the additional traffic generated by the development where the access is along Chesterfield Lane which has a limited carriage width is unsatisfactory and in excess of what is expected by Council's planning controls. 1. Loss of privacy and the imposition of overlooking to the adjoining properties from the addition of rear terraces; It is Mr Vescio's evidence that the consequence of stepping back of the 5th storey, has created extensive elevated terrace areas which allow for overlooking into the adjoining and surrounding properties (Exhibit 4). he also argues that the given the proposed development reduces the height of fencing around the private open space of Units G01-G05 to 1.35m this will facilitate overlooking to these units from the approved level one units. 1. The visual impact of the development from the laneway; Mr Vescio states that the proposal deletes the large 8-10m wide landscaped podium and replaces it with 5 units. This has a significant adverse visual impact and is a negative aspect of the proposal as compared to the approval (Exhibit 4). Mr Vescio's evidence is that the visual bulk of the additions will have an adverse impact when viewed from properties to adjacent to the site as a result of the removal of landscaping and replacement with built form. 1. creation of an overbearing impact when viewed from units within the Ocean View Apartments; In oral evidence Mr Vescio maintained his view that the proposed addition of the upper floor units, and the extension of the lift, would have an overbearing impact on the east facing units in the Ocean View Apartments (in particular unit 23).

1. The experts agree that the shadow diagrams indicate that additional shadowing created falls onto the roof of the garages at 48 and 52 Chesterfield at 12noon and garages of 62 and 66 at 3pm winter solstice (Exhibit 4).
2. Relevantly it is Mr Vescio's evidence that proposed development has a detrimental impact on the solar amenity of the remaining residents in the proposed development, as well as the adjoining properties. In particular he identifies that the proposed development requires the removal of the existing skylights to apartment 21 and 18, diminishing their solar amenity. Apartment 21 was also approved with east facing louvres which are required to be removed to facilitate the achievement of 1m² of solar gain to the living area.
3. The experts agree that: In relation to the elevational shadow diagrams DA24A and 25A the following observations are made: No. 56 Chesterfield: Additional overshadowing results from the additions onto the habitable room window (which) is overshadowed at 11am, 12pm and 1pm. Solar access is retained for its north facing 3 windows from 9am to 11am which is 2 hours. No. 54 Chesterfield: Additional overshadowing results from the additions onto the habitable room window (which) is overshadowed at 9am and 10am and retains sunlight from 11am to 1pm which is two hours. 44,46,50,52 Chesterfield: Additional overshadowing at 10, 11, and 12pm falls onto the roof of the single storey structures. (Exhibit 7)
4. The experts disagree as to the importance of these impacts [at paragraph 60 -62]. Mr Betros concludes that the areas impacted are primarily non habitable, and that irrespective they retain a reasonable level of solar access. He argues that the shadows are small in area and fast moving.
5. I assessing the impacts on solar amenity Mr Vescio places weight on the following controls in DCP 2012, in particular C1.1.9(c), and concludes that as the applicant relies on a variation to FSR the impact is unacceptable. "C1: 1.9 Solar Access Objectives (a) To ensure reasonable levels of direct sunlight to living areas and private open space of lower density residential accommodation. (b) To improve solar amenity and energy efficiency to existing lower density residential accommodation. (c) To minimise overshadowing of windows to internal living areas and private open space of adjoining dwellings. Controls (a) All forms of lower density residential accommodation are to be designed so as to provide for a minimum of 3 hours direct sunlight to living areas and principal private open space areas, when measured between 9am and 3pm during winter solstice (June 21). (b) All forms of lower density residential accommodation are not to reduce the amount of direct sunlight to solar collectors or the principal private open space of adjoining properties to less than 3 hours when measured between 9am and 3pm during winter solstice (June 21). (c) Despite controls (a) & (b) above, where a variation to floor space ratio, maximum building height, maximum wall height or setbacks controls causes a reduction in direct sunlight to adjoining properties, any reduction may be considered unacceptable. (d) If the provision of direct sunlight is already below 3 hours (as per above), any reduction may be unacceptable."

Findings

1. The Court has established planning principles to assist when making planning decisions where policies are expressed in qualitative terms and allow for more than one interpretation. The objectives of Clause 4.4, in particular (c)) is such a control. The relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141, extracted below: Criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: •How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? •How reasonable is the proposal causing the impact? •How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? •Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? •Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
2. Applying these principles in relation to current application and the preceding evidence leads to the following conclusions: 1. The detrimental impact on the solar amenity of the approved units, and the adjoining properties arises from the additional floor space that exceeds the FSR development standard. 2. LEP 2012 sets a high test for acceptability of variations to the FSR standard in seeking to preserve the amenity of adjoining properties and minimise the adverse impacts from development. 3. Given the existing consent for the site the provision of additional floor space, if warranted, is limited to the rear of the site (which generates impacts to adjoining neighbours) or to the top of the approved building (which reduces solar amenity by the deletion of skylights). 4. in ensuring the achievement of the required solar gain, privacy has been compromised. For example the removal of the approved louvres on Apartment 21 reduces the privacy of this apartment to future redevelopment of the adjoining site and provides for overlooking to 119 Macpherson Street. I accept the evidence of Mr Vescio that the reduction in the fencing height for the private open spaces of Units G01-G05 to 1.35m this will facilitate overlooking to these units from the approved level one units and the other privacy impacts identified at paragraph [59].
3. The proposed development results in a material change in impact to the solar amenity experienced by the approved apartments and to a lesser extent the adjoining development. That impact arises from an exceedance of the controls. Such variations receive greater scrutiny through the provisions of Clause 4.6 as they exceed the built form, and its associated impacts, that were foreseen and subject to consultation in the making of the LEP. In considering the differing evidence of the experts, and reviewing the evidence and architectural plans, I accept the evidence of Mr Vescio that those impacts arise from the noncompliance of the proposal with the FSR standard.
4. I note that in their oral submissions the adjoining residents raised concern in regard to the derogation of the streetscape elevation to Chesterfield Lane as a result of the relocation of the substation and air conditioning plant to the ground floor and the reduction in landscaping to the laneway. In the absence of acoustic evidence I accept that this is a sub optimal outcome when compared with the approved development which indicates these areas within the basement of the development.
5. Such impacts need to be considered in the context of the wording of the objective of the floor space control (d) which seeks to preserve the amenity of adjoining properties and minimise the adverse impacts on the amenity of the locality.
6. The common relevant meaning of minimise from the Macquarie Dictionary is: to reduce to the smallest possible amount or degree.
7. The common relevant meanings of preserve from the Macquarie Dictionary are: "1. to keep alive or in existence; make lasting. 2. to keep safe from harm or injury; save. 3. to keep up; maintain."
8. Applying the principles in Davies v Penrith City Council and the above meanings I conclude that the proposal is inconsistent with objective (d) of the FSR standard.
9. I accept the evidence of Mr Vescio and the submission of Mr Staunton that the existing character of the locality is not determined by placing emphasis of the atypical built form of the Ocean View Apartments.
10. The dominant existing character is of two to three storeys. I accept that the current planning controls provide some incentive for redevelopment, however on the evidence the planning controls cap this potential to three storeys.
11. The treatment of the bulk of the proposed development is emphasised by the frontage width and large site area. The proposed upper level and apartments to the Chesterfield frontage extend the width of the approved development. I am satisfied that the addition of the fifth floor element to the building creates a discordant character with the existing locality to an extent that makes the proposal incompatible (Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at 22-31).
12. I find that the development fails to meet objective (c) of the FSR development standard of compatibility with the existing character of the locality.
13. The Court has established a planning principle that considers how the development standards of FSR and building envelope controls relate (PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 at [48]). Relevant to these proceedings the principle emphasises that "a building envelope is determined by compliance with controls such as setback, landscape area and height. Its purpose is to provide an envelope in which development may occur but not one in which the development should necessarily fill. I am satisfied in these proceedings the FSR extrapolated from the built form diagram in the DCP is not the appropriate benchmark for the development on the site. I find that in varying the FSR standard of 1:1 in LEP 2012 the applicant has failed to satisfy the satisfy the objectives of the standard.
14. Despite Ms Duggan's submission that under s 80(1)(g) of the Act the Court could modify the scope of the development application by condition to approve part of the additional yield sought I find that it is not appropriate to do so on two grounds. Firstly the assessment of the submitted clause 4.6 request (which encompasses the whole of the development) does not result in the Court having the power to approve the application and secondly on merit I am not persuaded the development warrants approval in whole or part for the reasons given at paragraph [86].
15. If the subject site is to benefit from a material increase in height and or development potential I am satisfied that the proper mechanism for that to occur is a planning proposal which allows the appropriate consultation with Council and the community. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441: "The Court must assume a development standard in a planning instrument has a purpose… Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act."
16. As a result of this conclusion there is no power to approve the development and it is unnecessary for me to address the compliance of the proposal with objective (f) of the standard.

Conclusion

1. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the preceeding reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application, and the application must fail.
2. As a result of the failure to meet the precondition, I am not required to determine the remaining clause 4.6 request to vary the height standard.
3. Notwithstanding the conclusion at paragraph [77] I am satisfied on the evidence and the reasoning detailed in the preceding that a merit assessment of the application under s 79C of the Act would warrant refusal of the application due to the impacts of the development (sub clause d) and the public interest (sub clause e). The reasoning that supports this conclusion is as follows: 1. The findings at paragraph [64] - [78] demonstrate that the impacts of the development are such that the exceedance of the floor space control results in a development that fails to meet the planning controls for the site; 2. Decisions of the Court support the application of additional weight to controls that: are specific and recent as is the case in these proceedings (BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399); and have been the subject of public exhibition or submissions (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87]). 3. The Court is required in the assessment of an application to give weight to the controls in the DCP (Zhang v Canterbury City Council [1999] NSWLEC 209 at [30]). In this case the controls in DCP 2012 provide further specificity to the built form sought on the site. They provide detail as to the balance sought to be struck between that built form, the context of the site and any impacts arising from the development on the proximate properties. 4. I find that the objectives of the development standards in LEP 2012 and the objectives of the site specific controls in DCP 2012 are no met by the proposed development, and that the evidence does not establish that a variation to those controls is warranted.

Orders

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans. 2. No order as to costs. 3. The objections pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 are not sustained. 4. The appeal is dismissed. 5. Development application DA 571/2016 for proposed alterations and additions to the approved mixed use development at 113 Macpherson Street Bronte is refused. 6. The exhibits are returned with the exception of Exhibits 1, A and B. ……………. D M Dickson 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: 24 October 2017