Nicholas v Canterbury-Bankstown Council

Environmental Planning and Assessment Act 1979

1. The following sections of the EP&A Act are of relevance in this appeal: 1. Section 4.15(1) of the EP&A Act which provides as follows: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Section 4.15(3A) of the EP&A Act which provides as follows: Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

Canterbury Local Environmental Plan 2012

1. The Proposed Development is subject to the provisions of CLEP including the following specific provisions that are of relevance in this appeal: 1. clause 2.3 pursuant to which the Subject Site is zoned B5 Business Development, and the objectives of that zone are: • To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations. 1. clause 4.3, pursuant to which development on the Subject Site is subject to a height of buildings (HoB) development standard of 18m. The objectives of cl 4.3 are as follows: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities. 1. clause 4.6, concerning exceptions to development standards and which, relevantly ion this appeal, provides as follows in subcll 4.6(1) to 4.6(4): (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 Planning Secretary has been obtained.

Canterbury Development Control Plan 2012

1. The Proposed Development is subject to the provisions of CDCP, and the following provisions of CDCP are of relevance to this appeal: 1. Part D in CDCP provides guidance to development in relation to business centres, including the following relevant sections in that Part: 1. Part D.1.3.4 provides controls in relation to setbacks and includes: 1. the following objectives: "O1 To establish the desired spatial proportions of the street and define the street edge. O2 To minimise building size and bulk by setting back upper storeys. O3 To minimise amenity impacts on adjoining properties. O4 To encourage increased setbacks along Canterbury Road to provide for possible future implementation of street parking and assist in reducing traffic noise impacts. O5 To allow for flexible design and building articulation by permitting minor encroachments." 1. control C2 which requires that front setbacks in the B5 Zone along Canterbury Road, and for any secondary frontage, provide a minimum setback of 3m from street boundary at levels 1 to 4, and an additional 5m setback above 4 storeys.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

1. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP65') aims to improve the design quality of residential apartment development in New South Wales, and recognises that the design quality of residential apartments is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
2. SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has 3 or more storeys and contains 4 or more dwellings.
3. SEPP65 sets a consistent policy direction for residential flat development in New South Wales and provides a uniform State-wide framework for more detailed planning for residential flat development. It has a statutory effect on development and as a consequence may supplement the provisions of State environmental planning policies, local environmental plans and development control plans.
4. The Policy came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.
5. SEPP65 has a close and integrated relationship with the Apartment Design Guide ('ADG') published by the NSW Department of Planning and Environment (see below at [18]).

Apartment Design Guide

1. The ADG provides consistent planning and design standards for residential apartments in New South Wales.
2. Parts 3 and 4 of the ADG provide objectives, design criteria and design guide for the siting, design and amenity of apartment development, including: 1. Part 4A, which concerns solar and daylight access, and which provides: 1. Objective 4A-1 which is to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space; and 2. Design criteria 1, requiring that living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas.

Contentions

1. At the commencement of the hearing, the Parties advised that certain matters that had been in contention between them had been resolved as a consequence of either the Applicant's amended plans, or through the proposed imposition of agreed conditions of consent. These included: 1. matters related to potential contamination of the Subject Site that had been resolved through the Applicant's provision of a Preliminary Site Investigation report, in satisfaction of the provisions of cl 7(1) of State Environmental Planning Policy 55 - Remediation of Land (SEPP55); 2. a requirement for a plan of management (PoM) for the Applicant's rooftop terrace which had been resolved through the Applicant's provision of a PoM that was tendered as evidence at the hearing; 3. matters relating to acoustic amenity that have been resolved through the Applicant's provisions of a revised acoustic report; 4. matters concerning solar access to the primary living spaces and principal private open spaces of dwellings which has been resolved through the Applicant's provision of solar access diagrams for the Proposed Development, as part of its amended plans; 5. a requirement for an updated survey plan of the Subject Site, which the Applicant has satisfied through the provision of the required plan; 6. the provision of a plan for level 1 of the Proposed Development, which had been provided within the Applicant's amended plans; 7. a requirement for plans to consistently illustrate the design of the balcony on unit type F, which had been achieved through the Applicant's Issue H plans; 8. the provision of an updated BASIX certificate which the Parties agreed could be resolved through the provision of a direction to secure that document, noting that matters associated with the provision of an updated BASIX certificate were not in contest in the hearing; 9. a requirement for an updated accessibility report, which has been resolved through the Applicant's provision of the required report; 10. a requirement that window frames and shutters along the Canterbury Road and Kingsgrove Road frontages should not overhang the boundary of the Subject Site, which was resolved through the Applicant's agreement to delete these structures such that they would not overhand the site boundary.
2. The principal matters remaining in contention and requiring resolution in this appeal are: 1. the height of the Proposed Development, and whether the Applicant's written request prepared pursuant to the provisions of cl 4.6 of CLEP to vary the HoB development standard applicable to the Subject Site should be upheld; 2. compliance of the Proposed Development in relation to a range of design considerations; and 3. the acceptability of the Applicant's proposed setbacks within its Proposed Development.
3. The Court was assisted by the evidence of the Parties': 1. expert planners, Mr Jeff Mead, for the Applicant, and Ms Haroula Michael, for the Respondent; and 2. expert urban designers, Mr Steve Kennedy, for the Applicant, and Ms Soudeh Mohammedi, for the Respondent.

Height

1. Development on the Subject Site is subject to a 18m HoB development standard, and the Proposed Development at its highest point exceeds this standard by up to maximum of 2.8m, representing a maximum variance of 15.5% above the standard.
2. This exceedance is associated with the provision of access to the Applicant's proposed rooftop terrace, and relate to the rooftop terrace lobby, bathroom, fire stairs and awning, together with the development's lift overrun. It also includes a portion of the roof and clerestory windows associated with unit 28 in the Proposed Development.
3. The Applicant seeks to vary the HoB development standard associated with the Subject Site and to this end has provided a written request prepared by Ingenuity Planning pursuant to the provisions of cl 4.6 of CLEP (see above at [11(3)]).
4. The provisions of cl 4.3 of CLEP are not excluded from the operation of cl 4.6 of CLEP.
5. Under cl 4.6(3) of CLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the standard.
6. In addition, under cl 4.6(4), the consent authority must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.
7. I will review the Applicant's response to each of these requirements within its written request.

Is compliance with the standard unreasonable and unnecessary?

1. In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) in which five pathways were identified that could be applied to establish whether compliance is unreasonable or unnecessary.
2. These are to establish that compliance with the development standard is unreasonable or unnecessary because: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; and 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary".
3. The Applicant's written request to vary the HoB development standard applicable to the Subject Site states that, consistent with the first of the approaches in Wehbe, compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
4. The objectives of the HoB development standard were identified above (at [11(2)]), and in relation to these the Applicant's cl 4.6 written request, prepared by its expert planner Mr Mead said that: 1. there is no consistent built form that is evident in the area of the Subject Site; 2. notwithstanding the submission above (at [(a)]), the design of the Proposed Development achieves objective (a) of the standard by maintaining the desirable attributes and character of the area because the proposed built form, , 1. is generally consistent with the height expectations of an 18m built form as envisaged under the HoB development standard in cl 4.3 of CLEP; and 2. provides a building form that is up to 5 storeys in height as envisaged within Control C1 in Part D6.1 of CDCP; 1. the design of the Proposed Development would achieve objective (b) of the standard by ensuring that there is a desired level of solar access and public open space because it would not give rise to any overshadowing impacts beyond that which would be expected from a compliant building on the Subject Site; 2. the design of the Proposed Development would achieve objective (c) of the standard, supporting building design that contributes positively to the streetscape and visual amenity of an area, by incorporating design elements including the distinctive corner address, facade undulation, balcony articulation, framed elements and fenestration through high-quality materials and finishes which would ensure the design will enhance the external appearance of the development; and 3. the design of the Proposed Development would achieve objective (d) of the standard, reinforcing the road frontages at Canterbury and Kingsgrove Roads, by providing commercial tenancies at ground level addressing the pedestrianised scale of the immediate locality, and by providing residential levels above ground floor with façade articulation, balcony spaces and openings that together reinforce the Canterbury Road/Kingsgrove Road intersection when viewed at a larger scale. These outcomes are achieved notwithstanding the proposed exceedance of the HoB development standard, the elements of which would not be visible from the road frontages.
5. In response to questions on the Applicant during the hearing, the Respondent's expert planner, Ms Michael, agreed that the Proposed Development achieved objectives (a) and (b) of cl 4.3 of CLEP. However, she did not agree that the proposed exceedance of the HoB development standard achieved objectives (c) and (d).
6. I have considered the Applicant's request and the evidence of the expert planners at the hearing, and I am satisfied that the Proposed Development does achieve the objectives of the HoB development standard in cl 4.3 of CLEP, for the reasons provided in the Applicant's request, and which I adopt.
7. I also agree that, on the basis that it achieves the objectives of the standard, the Applicant has successfully demonstrated within its written request that compliance with the standard is unreasonable or unnecessary.

Are there sufficient environmental planning grounds to justify contravening the standard?

1. The Applicant's written request includes some nineteen environmental planning grounds as justifying the Proposed Development's contravention of the HoB development standard.
2. The requirement for an Applicant's cl 4.6 written request to demonstrate that sufficient environmental planning grounds exist to justify contravening the standard was also discussed by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 in which his Honour said (at [23]) that: "The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act."
3. The objects of the EP&A Act were provided above at [16].
4. Preston CJ also identified (at [24]) that there are two respects in which an applicant's cl 4.6 written request needs to be 'sufficient' in relation to the environmental planning grounds so as to justify the contravention of a development standard. These are: "First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
5. The Applicant's cl 4.6 written request to vary the HoB development standard proposed the following arguments as a basis for demonstrating the sufficiency of environmental planning grounds used to justify the contravention of the HoB development standard. These environmental planning grounds addressed relevant considerations in two parts, that being those height exceedances that are located centrally within the Proposed Development and those that are located at its eastern edge.
6. In relation to the exceedances that are located centrally, these relate to the proposed lift overrun and the lobby access arrangements for the rooftop common open space, and the Applicant's written request states that: 1. the Proposed Development's exceedance of the HoB development standard is greatest at its lift overrun and in relation to features associated with access to and use of the proposed rooftop common open space; 2. these centrally located exceedances are located such that they will not be viewed from any public space; and 3. the centrally located exceedance of the HoB development standard facilitates accessibility to rooftop common open space which provides a high level of amenity to the occupants, without impacting the amenity of neighbouring properties, and so is a desirable planning outcome.
7. In relation to the exceedances that are located at the eastern edge of the Proposed Development, these relate to the roof areas above proposed unit 26, and the Applicant's written request states that: 1. the orientation of the commercial entry point to the Proposed Development on the Kingsgrove Road frontage creates a fall from west to east on the Subject Site; 2. the height exceedance on the eastern edge of the Proposed Development results from the Proposed Development's response to the topography of the Subject Site and the fall in its slope from west to east; and 3. requiring the Applicant to amend its plans to avoid this HoB exceedance at the eastern edge of the proposed Development would, in the Applicant's submission, unnecessarily impact on the amenity and design of the proposed unit 26.
8. Having considered the Applicant's written request and its consideration of the exceedances of the HoB development standard: 1. I accept that the centrally located exceedances are: 1. located within a large development and do not give rise to any discernible impacts external to the Subject Site; 2. provide positive environmental planning outcomes for the Proposed Development; 3. required for the purpose of achieving positive environmental planning outcomes with respect to the accessibility and use of the proposed rooftop common open space; and 4. requiring amendment to the design of the Proposed Development to remove the proposed exceedance of the HoB development standard in this location would make the rooftop COS less useful and less accessible, and would be a poor planning outcome; 1. I agree with the Applicant that: 1. the HoB exceedance at the eastern margin of the Proposed Development is a reasonable response to the fall in the topography of the Subject Site that is required to maintain the design integrity and amenity outcomes of the Proposed Development; and 2. the proposed exceedance will have no discernible impact on neighbouring lots and development thereon.
9. For reasons provided above at [44], I am satisfied that the Applicant has demonstrated sufficiency of environmental planning grounds to justify the requested variation to the HoB development standard for the Proposed Development as required under cl 4.6(4)(a) of CLEP.
10. The Applicant's written request to vary the HoB development standard provides a series of further environmental planning grounds to justify the HoB exceedances at various points on the Proposed Development. Many of these grounds focus on the broader benefits of the Proposed Development and are reasons upon which I could not, and do not, rely upon in reaching my conclusion above (at [45]).
11. The Applicant's written request also identified certain other decisions of the Respondent concerning consents granted for developments in the vicinity of the Subject Site that were of between six and eight storeys in height. In my estimation these should be afforded little to no weight in terms of adding to the sufficiency of environmental planning grounds. Such examples may have been of assistance to the Applicant if it had sought to demonstrate that the Respondent had abandoned the HoB development standard as a reason for concluding compliance with the standard was unreasonable or unnecessary. However, no such submission was made by the Applicant.

Is the Proposed Development consistent with the objectives for the development within the B5 zone in which the development is proposed to be carried out?

1. The provisions of cl 4.6(4)(b) of CLEP requires that, in addition to there being sufficient environmental planning grounds, the request should demonstrate that 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.
2. The objectives of the B5 zone were provided above (at [11(1)]). The Applicant's written request stated that the Proposed Development was consistent with the objectives of the B5 zone because: 1. the Proposed Development includes a mix of business uses, including premises that require a large floor area, in locations that are close to, and that support the viability of, the Canterbury Road centre. Specifically, the Applicant said that the Proposed Development would provide two commercial tenancies at ground floor level within a highly accessible location and would improve employment opportunities within close proximity to residential accommodation; 2. it provides for residential use in conjunction with mixed use development and would create an attractive streetscape within a building with a high standard of design. Specifically, the Applicant said that the Proposed Development would provide residential accommodation on levels 1 to 4 with commercial tenancies on the ground floor. Consequently, the Proposed Development would: 1. provide a high quality, mixed use development which would address the respective street frontages on Canterbury Road and Kingsgrove Road; and 2. provide a bulk, scale and character which is consistent with the development standards and transitioning character of Canterbury Road; 1. it supports urban renewal that encourages an increased use of public transport, walking and cycling. Specifically, the Applicant said that the Proposed Development would include the provision of commercial tenancies and residential accommodation within close proximity to numerous public transport options. It noted that the residential accommodation within the Proposed Development on Canterbury Road would encourage active transport including walking and cycling; 2. it encourages employment opportunities on Canterbury Road and in accessible locations. Specifically, the Applicant said that the proposal includes two commercial tenancies on Canterbury Road that are located in a highly accessible location. The further provision of residential apartments would provide accommodation within close proximity to employment opportunities.
3. Having considered the Applicant's written request, I agree that the request has demonstrated the Proposed Development is consistent with the objectives of the B5 zone applicable to the Subject Site.

Conclusion regarding cl 4.6 written request

1. On the basis of my conclusions above at [36], [45] and [50], I am satisfied that, the Applicant's written request has demonstrated that compliance with the HoB development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the HoB development standard.
2. Consequently, I am satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of CLEP, and the proposed variation in the HoB development standard will be in the public interest because it is consistent with the objectives of the HoB development standard in cl 4.3 of CLEP, and it is consistent with the objectives for development within the B5 zone in which the development is proposed to be carried out.
3. I conclude that the Applicant's written request to vary the HoB development standard in cl 4.3 of CLEP is well founded and that the Court has jurisdiction to determine the Applicant's development application.

Design matters

1. The Respondent had pressed a series of contentions in relation to certain design matters, submitting that the Applicant's Proposed Development was insufficiently responsive to those matters. The design matters contentions that were addressed at the hearing were: 1. the acceptability of the solar access provided to certain units within the Proposed Development; 2. the acceptability of the Proposed Development's setback on its Kingsgrove Road frontage; and 3. the acceptability of the Applicant's proposed framing structures around windows facing Kingsgrove Road.

Is the solar access provided to units acceptable?

1. The relevant controls concerning the provision of solar access to units within the Proposed Development are provided within Part 4A of the ADG (see above (at [19(1)]).
2. The Respondent, supported by the evidence of its expert planner, Ms Michael, had submitted that the Proposed Development did not achieve design criteria 1 in Part 4A of the ADG, and noted that four units in particular received inadequate levels of solar access.
3. The Applicant submitted, supported by the evidence of its expert planner, Mr Mead and its urban design expert Mr Kennedy, that the Proposed Development was compliant with design criteria 1 in Part 4A of the ADG. More specifically, the Applicant noted that its plan DA35.5 (Rev H) had confirmed that units of concern to Ms Michael, the Respondent's expert planner - units 4, 12, 20 and 30 - did receive two hours of solar access at mid-winter between 1pm and 3pm.
4. The Applicant acknowledged that, while the solar access achieved in those units was compliant with the control, the levels of solar access achieved were not as significant as might be preferred.
5. The Applicant submitted that the evidence of its experts confirmed that the Proposed Development did comply with the control and that once the control was achieved the Respondent could not require any more onerous standard to be met.
6. The Respondent submitted that: 1. it accepted that the Applicant's solar access analysis as provided within its plan DA35.5 (Rev H) had confirmed that the Proposed Development was compliant with design criteria 1 in Part 4A of the ADG, notwithstanding that the solar access provided was based on a slender shaft of sunlight entering the relevant units of concern for the minimum two hours; 2. the Court should have regard to the evidence of its expert planner, Ms Michael, who had stated that, notwithstanding the numerical compliance of the Proposed Development with the provisions of the ADG, the degree of penetration of solar access to rooms behind windows receiving the solar access was unsatisfactory; and 3. the Court could either accept the Applicant's evidence of solar access compliance or adopt what it said was the "more conservative approach" of its expert Ms Michael, which sought a qualitatively superior level of solar access beyond than was indicated to be achieved within the Applicant's plans.
7. Having considered the submissions of the Parties and the evidence of their respective experts, I agree with the Applicant's submission that the Proposed Development is compliant with design criteria 1 of Part 4A of the ADG which requires that 70% of all units in the development should receive two hours of solar access at mid-winter.
8. Design criteria 1 of Part 4A of the ADG does not require a further specific qualitative level of solar access that must be achieved, and in my assessment to require such a further level of performance from the Proposed Development would be contrary to the provisions of s 4.15(3A)(a) of the EP&A Act.
9. Consequently, I have concluded that: 1. the Proposed Development is compliant with the relevant controls within the ADG concerning the provision of solar access to units within the development; and 2. the concerns raised by the Respondent, supported by its expert Ms Michael, in relation to the quality of solar access is an insufficient basis for refusal of the Applicant's development application, as amended.

Is the setback of the Proposed Development on Kingsgrove Road acceptable?

1. The relevant controls concerning the setback requirements for the Proposed Development along its frontages to Canterbury Road and Kingsgrove Road are provided within (see above (at [12(1)(a)(ii)]). Those controls concern both setbacks and building separation requirements, and the Parties had agreed that matters relating to building separation had been resolved through the Applicant's amended plans.
2. In relation to the matter of front setbacks, the controls require that within the B5 zone along Canterbury Road and any secondary frontage, such as Kingsgrove Road: 1. the first four storeys (Levels 1-4) should have a setback of 3m from the street boundary; and 2. all storeys above the fourth storey should provide an additional 5m setback for a total setback of 8m.
3. Within the joint report of the Parties' town planners and urban designers, the experts had agreed that: 1. the Canterbury Road frontage of the Proposed Development was setback the required 3m; 2. the basement level 01 had a setback of 3m to a depth of 1.4m to provide space under the adjacent footpath for use by Council and other authorities for the provision of services.
4. The experts had also agreed that the only matters remaining in contention in relation to the front setbacks of the Proposed Development concerned: 1. the front setback to Kingsgrove Road, in relation to which the Respondent accepts that a nil setback would be acceptable for up to 9m of the frontage as measured from the southwest tip of the development's splayed corner with Canterbury Road; and 2. the Applicant's proposed unit 29 on level 5 of the Proposed Development should be setback 8m from Canterbury Road.
5. Addressing first the Respondent's contention in relation to the length of the nil setback on Kingsgrove Road, the Respondent's experts, Ms Michael and Ms Mohammadi, agreed that: 1. it was appropriate to vary the 3m setback control applicable to the Proposed Development along Kingsgrove Road; and 2. it was appropriate for the Proposed Development to have a nil setback along its Kingsgrove Road frontage at its corner with Canterbury Road in order to create a prominent and robust corner, consistent with objective O7 in Part D.4.3 of CDCP which seeks: "To achieve building emphasis on corner sites to strengthen the legibility of the urban structure".
6. However, both of the Applicant's experts stated that the extent of the non-compliant nil setback to Kingsgrove Road should be limited to a 9m length as measured from the corner in order to: 1. achieve a balance in built form with the frontage on Canterbury Road, 2. achieve the objectives of Part D.1.3.4 of CDCP (see above (at [12(1)(a)])).
7. The Applicant, supported by the evidence of its experts Mr Mead and Mr Kennedy, submitted that the frontages of the Proposed Development to Canterbury Road and Kingsgrove Road were balanced and achieved the objectives of Part D1.3.4 of CDCP because: 1. by the estimation of Mr Mead and Mr Kennedy, the difference between the lengths of the relevant frontages on Canterbury Road and Kingsgrove Road were approximately 760mm, which in their opinion, was a minor and imperceptible difference in relation to the lengths of those frontages; and 2. the Proposed Development reduces the building bulk where it is necessary to do so on the Kingsgrove Road façade by stepping in the southern part of that façade to provide strong articulation to the frontage and a distinct transition to the south.
8. The Applicant also noted that it did not support the Respondent's proposed reduction in the length of the Kingsgrove Road façade as this would require the deletion of bedrooms at various levels within the development. Specifically, the Applicant said that if the nil setback of the Kingsgrove Road frontage were reduced to 9m, then its plans would require amendment to delete a bedroom in within each of the units up to Level 5, and that this was an unnecessarily significant amendment to make for what it said was a minor difference in façade lengths.
9. Because the Applicant proposes that its nil setback along a portion of the frontage to Kingsgrove Road should be retained, and noting that this is in contravention of the 3m frontage setback control in Part D 1.3.4 of CDCP, resolution of this matter requires consideration of the provisions of s 4.15(3A)(b) of the EP&A Act (see above at [10(2)]).
10. Specifically, this requires assessment as to whether the Applicant's proposed design of its frontage to Kingsgrove Road merits flexibility in the application of the 3m front setback control because, notwithstanding its non-compliance, it achieves the objectives of the control.
11. The objectives of control C2 in Part D 1.3.4 of CDCP were provided above (at [12(1)(a)(i)]). My assessment of the Proposed Development's achievement of those objectives is as follows: 1. Objective O1 requires that the street frontage of the Proposed Development should establish the desired spatial proportions of the street and define the street edge, and in relation to this: 1. I note the evidence of the Respondent's experts, Ms Michael and Ms Mohammadi (see above at [68(2)]), that it was appropriate for the Proposed Development to have a nil setback along its Kingsgrove Road frontage at its corner with Canterbury Road in order to create a prominent and robust corner, consistent with objective O7 in Part D.4.3 of CDCP; 2. I am satisfied that the Applicant's design of its frontage to Kingsgrove Road does define the street edge as sought by the objective, and I agree with the evidence of the Applicant's planner, Mr Mead, that the stepping in of the southern part Kingsgrove Road façade provides an appropriate transition in the built form consistent with an appropriate definition of the street edge; 3. I am satisfied that the Applicant's design of its Kingsgrove Road façade does establish the desired spatial proportions of the street, given that the Parties' experts agree that a nil setback is appropriate for a length of 9m along that frontage to balance the frontage to Canterbury Road; 4. I agree with the assessment of the Applicant's urban design expert, Mr Kennedy, that the difference in length between the Applicant's Kingsgrove Road façade and that sought by the Respondent and its experts is such as to be not readily discernible, and not such that it would disrupt the desired spatial proportions of the street; and 5. for reasons provided above (at [(a)] to [(d)]), I am satisfied that the Proposed Development achieves objective O1; 1. Objective O2 requires that that the design of the Proposed Development should minimise building size and bulk by setting back upper storeys, and in relation to this: 1. I note again that I agree with the evidence of the Applicant's planner, Mr Mead, that the stepping in of the southern part Kingsgrove Road façade provides an appropriate transition in the built form consistent with an appropriate definition of the street edge, and 2. the stepping in of the development does appropriately reduce the size and bulk of the building; and 3. consequently, I am satisfied that the Proposed Development achieves objective O2; 1. Objective O3 requires that the Proposed Development should minimise amenity impacts on adjoining properties, and in relation to this: 1. I agree with the evidence of the Applicant's expert planner that the Proposed Development does not give rise to any impacts on adjoining properties; and 2. I am satisfied that the Proposed Development achieves objective O3; 1. Objective O4 requires that the Proposed Development should encourage increased setbacks along Canterbury Road to provide for possible future implementation of street parking and assist in reducing traffic noise impacts, and in relation to this: 1. I am satisfied that this was not a matter in contention between the Parties; and 2. I am satisfied that the Proposed Development achieves objective O4; 1. Objective O5 requires that that the design of the Proposed Development allow for flexible design and building articulation by permitting minor encroachments, and in relation to which: 1. I am satisfied, consistent with the evidence of the Applicant's expert planner and urban designer which I accept, that the encroachment to the standard beyond the 9m agreed by both Parties' experts to be acceptable, is minor; and 2. consequently, I am satisfied that the Proposed Development achieves objective O5.
12. Based on my considerations above at [74], I am satisfied that the Applicant's design of its frontage on Kingsgrove Road achieves the objectives of the front setback control in Part D 1.3.4 of CDCP, and merits flexibility in the application of the control consistent with the provisions of s 4.15(3A)(b) of the EP&A Act, and should be approved.
13. Turning to the matter of the 8m setback proposed by the Respondent for proposed unit 29, this would require amendment to the balcony and roof form over the balcony above unit 29.
14. The Applicant submitted that the height of the Proposed Development is within the height plane required by Council and, as confirmed by the evidence of its expert planner, Mr Mead, that it does not give rise to any impacts on neighbouring properties, and on this basis said that the design of unit 29 including its balcony and balcony roof form should be acceptable.
15. Notwithstanding this submission, the Applicant acknowledged that the unit 29 balcony and its roof form did not comply with the setback control within Part D 1.3.4 of CDCP. As was the case for the Applicant's proposed breach of this control in relation to its levels 1 to 4, this further requires assessment as to whether the Applicant's proposed design of its frontage to Kingsgrove Road merits flexibility in the application of what is an 8m setback control at the level of unit 29 because, notwithstanding its non-compliance, it achieves the objectives of the control.
16. The objectives of control C2 in Part D 1.3.4 of CDCP were provided above (at [12(1)(a)(i)]). My assessment of the Proposed Development's achievement of those objectives in relation to the balcony and its roof form of unit 29 is as follows: 1. Objective O1 requires that the street frontage of the Proposed Development should establish the desired spatial proportions of the street and define the street edge, and in relation to this, I remain satisfied that the objective is achieved as the configuration of the unit 29 balcony and its roof form contributes little, in my assessment, to achieving this objective, and does not detract from its achievement as noted above at [74(1)(e)]; 2. Objective O2 requires that that the design of the Proposed Development should minimise building size and bulk by setting back upper storeys, and in relation to this: 1. I am satisfied that this is achieved by the Proposed Development for reasons already identified above (at [74(2)(a)] and [74(2)(b)]); and 2. in my assessment, the non-compliance of the balcony and its roof form associated with unit 29, being a single unit at the rear of the development, does not detract from the Proposed Development's overall achievement of objective O2; 1. Objective O3 requires that the Proposed Development should minimise amenity impacts on adjoining properties, and in relation to this: 1. I once again accept the evidence of the Applicant's expert planner that the Proposed Development does not give rise to any impacts on adjoining properties; and 2. I am satisfied that the balcony and roof form of unit 29 within the Proposed Development achieves objective O3; 1. Objective O4 requires that the Proposed Development should encourage increased setbacks along Canterbury Road to provide for possible future implementation of street parking and assist in reducing traffic noise impacts, and the objective has no application in relation to the Kingsgove Road frontage of the Proposed Development; 2. Objective O5 requires that that the design of the Proposed Development allow for flexible design and building articulation by permitting minor encroachments, and in relation to which: 1. I remain satisfied, consistent with the evidence of the Applicant's expert planner and urban designer which I accept, that the articulation of the Proposed Development along its Kingsgrove Road frontage is acceptable, and assists in minimising the bulk and size of the development; 2. I am satisfied that the encroachment of the unit balcony and its roof form is acceptable and will not take away from the design and articulation already provided by the Proposed Development, particularly given its location at the rear of the development; and 3. consequently, I am satisfied that the unit 29 balcony and its proposed roof form within the Proposed Development achieves objective O5.
17. Based on my considerations above at [79], I am satisfied that the Applicant's design of the unit 29 balcony and its roof form achieves the objectives of the front setback control in Part D 1.3.4 of CDCP, and merits flexibility in the application of the control consistent with the provisions of s 4.15(3A)(b) of the EP&A Act, and should be approved.

Are the Applicant's proposed framing structures around windows facing Kingsgrove Road acceptable?

1. The Respondent submitted that the window frames, sometimes referred to as plena, around windows of the units within the Proposed Development facing Kingsgrove Road were not contained within the boundary of the Subject Site. Noting that these frames were an architectural feature only and served no functional purpose the Respondent said that they should be deleted.
2. The Applicant submitted in response that if the Court were to direct the deletion of the window frames it would accept this and would not oppose the imposition of a condition of consent requiring their deletion.
3. Having considered the submissions of the Parties, I agree with the Respondent that the window frames, also known as plena, should be deleted so that no part of the Proposed Development is located outside the boundaries of the Subject Site and the conditions of consent for the Proposed Development should include a condition to this end.

Conditions of consent

1. The Parties had provided their draft proposed conditions of consent for the Court's consideration should it be minded to grant consent to the Applicant's development application.
2. In addition to the addition of proposed condition 2A requiring the deletion of certain window protrusions, the Applicant had proposed a version of proposed condition 36 that differed from that proposed by the Respondent.
3. The Respondent had proposed that proposed condition 36 should read as follows: "A dilapidation report prepared by an accredited engineer, detailing the structural adequacy of the adjoining properties at 602 Canterbury Road, Belmore and their ability to withstand the proposed excavation, and any measures required to be incorporated into the work to ensure that no damage will occur during the course of the works, shall be submitted to Council, or the Principal Certifying Authority prior to the issue of a Construction Certificate. All costs to be borne by the applicant."
4. The Applicant had accepted the Respondent's proposed condition 36 but proposed that the following paragraph be added to the condition: If access to the adjoining site to undertake the dilapidation report is not provided, the person with the benefit of this consent is to provide evidence of three written attempts, no less than 2 weeks apart, seeking to gain access to the certifier. If access cannot be obtained to undertake the report a dilapidation report must be prepared based on an external inspection.
5. I have considered the Parties' alternate versions of proposed condition 36, and have decided that the Applicant's version should be imposed with the grant of consent, as it provides an added, helpful and, in my assessment, reasonable basis for establishing the approach that should be adopted in fulfilling the agreed requirement that a dilapidation report should be prepared in relation to the property adjacent to the Subject Site.
6. Consequently, proposed condition 36 should read as follows: "A dilapidation report prepared by an accredited engineer, detailing the structural adequacy of the adjoining properties at 602 Canterbury Road, Belmore and their ability to withstand the proposed excavation, and any measures required to be incorporated into the work to ensure that no damage will occur during the course of the works, shall be submitted to Council, or the Principal Certifying Authority prior to the issue of a Construction Certificate. All costs to be borne by the applicant. If access to the adjoining site to undertake the dilapidation report is not provided, the person with the benefit of this consent is to provide evidence of three written attempts, no less than 2 weeks apart, seeking to gain access to the certifier. If access cannot be obtained to undertake the report a dilapidation report must be prepared based on an external inspection."

Conclusions

1. As noted above at [3], the Applicant's development application was notified as required under the provisions of cl 77 of the EP&A Regulation and the relevant provisions of CDCP, and no objections were received in response to this notification, and no objectors sought to make submissions at the hearing.
2. As a consequence of my findings above in relation to the matters remaining in contention between the Parties, I have concluded that: 1. as noted above (at [50]), the Applicant's written request to vary the HoB development standard in cl 4.3 of CLEP is well founded and that the Court has jurisdiction to determine the Applicant's development application; 2. as noted above at [63(1)], the Proposed Development is compliant with the relevant controls within the ADG concerning the provision of solar access to units within the Proposed Development and no more onerous requirement should be imposed on the Applicant; 3. as noted above at [75], I am satisfied that the Applicant's design of its frontage on Kingsgrove Road achieves the objectives of the front setback control in Part D 1.3.4 of CDCP, and merits flexibility in the application of the control consistent with the provisions of s 4.15(3A)(b) of the EP&A Act, and should be approved; 4. as noted above at [80], I am satisfied that the Applicant's design of the unit 29 balcony and its roof form achieves the objectives of the front setback control in Part D 1.3.4 of CDCP, and merits flexibility in the application of the control consistent with the provisions of s 4.15(3A)(b) of the EP&A Act, and should be approved; and 5. as noted above at [83], the window frames, also known as plena, should be deleted so that no part of the Proposed Development is located outside the boundaries of the Subject Site and the conditions of consent for the Proposed Development should include a condition to this end.
3. Consequently, for reasons provided above at [85], I find that the Applicant's Proposed Development should be approved, subject to conditions, including the Applicant's versions of: 1. proposed condition 2A requiring the deletion of the window frames; and 2. proposed condition 36 as discussed above (at [89]).

Other matters

1. During the hearing the Applicant had tendered BASIX Certificate 992320M dated 19 June 2019 as part of its Exhibit A.
2. The Parties identified that, should the Court be minded to grant consent to the Applicant's development application, it may be appropriate to direct the Applicant: 1. to confirm the status of its tendered BASIX Certificate concerning its Proposed Development; and 2. if required, to secure and provide to the Court an updated BASIX Certificate that could be relied upon in relation to its amended plans.
3. I have decided that, in order to make final orders in this matter, I should make the direction identified above (at [94]).

Directions

1. The Court directs that: 1. the Applicant is to confirm the status of its tendered BASIX Certificate concerning its Proposed Development, and, if required, to secure and provide to the Court an updated BASIX Certificate that can be relied upon in relation to its amended plans; 2. the Applicant is to provide its response to Direction (1) above by no later than 3pm on Friday 23 July 2021; 3. this matter is listed for mention before me on Monday 26 July 2021 at 4:15pm, by telephone; 4. if Direction (2) above is complied with, the mention on Monday 26 July 2021 will be vacated; 5. the Parties are granted liberty to restore on 2 days' notice. ..…………………… M Chilcott 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: 14 July 2021