Nordea Capital Pty Ltd v Parramatta City Council

Land and Environment Court (NSW)|2017-02-08

Judgment

COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Parramatta City Council (the Council) of a development application (the application) for a residential flat building (RFB) at 17-21 Moseley Street, Carlingford (the site).
The application (DA/534/2016) as lodged with the Council in June 2016 proposed the consolidation of three lots into one, demolition of all structures, and the construction on the consolidated site of a 9 storey RFB containing 42 apartments and with two levels of basement parking with 56 car spaces. Strata subdivision of the completed RFB was also proposed.
The application was notified and 5 submissions were lodged objecting to the development on the basis of: overshadowing, overlooking/privacy, and noise and visual outlook impacts for neighbours; bulk and scale; and the site isolation of 766-772 Pennant Hills Road as well as vehicle and infrastructure access restrictions for these properties.
The application was considered by the Council's Design Excellence Advisory Panel (DEAP) who raised concerns with the design.

The site and surrounds

The site comprises three rectangular lots, each currently containing a dwelling house, with a combined site area of 2099m² and a slope of some 11m from the north-west corner to the south-west corner.
The site is located on the south-eastern corner of Moseley Street and Young Road. Immediately to its south, at 15 Young Road, is a relatively recent 7-8 storey RFB. Immediately adjoining to the east, on the south-western corner of Moseley Street and Pennant Hills Road, is a child care centre.
Otherwise, the site is surrounded by single storey dwellings and newer RFBs. Opposite the site, in Moseley Street, is a church and Harold West Reserve. The site is in close proximity to the Carlingford Court shopping centre.

Legislative context

The site is located within the R4 High Density Residential zone under the Hills Local Environmental Plan 2012 (the LEP) with RFBs being permissible with consent. The objectives of the R4 zone are as follows: To provide for the housing needs of the community within a high density residential environment. To provide a variety of housing types within a high density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To encourage high density residential development in locations that are close to population centres and public transport routes.
The site is subject to height and floor space ratio (FSR) controls under the LEP with a maximum permissible height of 21 metres and FSR of 1.49:1.
The LEP height objectives are found at clause 4.3 (1) as follows: (a) to ensure the height of buildings is compatible with that of adjoining development and the overall streetscape. (b) to minimise the impact of overshadowing, visual impact, and loss of privacy on adjoining properties and open space areas.
The height of development can be exceeded by architectural roof features providing the provisions of clause 5.6 of the LEP are met: 5.6 Architectural roof features (1) The objectives of this clause are as follows: (a) to allow architectural roof features that will integrate with building composition and form and encourage a high quality built form. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that: (a) the architectural roof feature: (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
The FSR objectives are found at clause 4.4 (1) of the LEP being: (a) to ensure development is compatible with the bulk, scale and character of existing and future surrounding development, (b) to provide for a built form that is compatible with the role of town and major centres.
The LEP also contains minimum lot size requirement for RFBs at clause 4.1A: 4.1A Minimum lot sizes for dual occupancy, multi dwelling housing and residential flat buildings (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to this clause for a purpose shown in Column 1 of the Table opposite that zone, if the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the Table. Column 1 Column 2 Column 3

Residential flat building - - Zone R4 High Density Residential 4,000 square metres

Despite subclause (2), development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to subclause (2) for multi dwelling housing or residential flat buildings where the area of the lot is less than the area specified for that purpose and shown in Column 3 of the Table, if Council is satisfied that: (a) the form of the proposed structures is compatible with adjoining structures in terms of their elevation to the street and building height, and (b) the design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable acoustic and visual privacy, and (c) the dwellings are designed to minimise energy needs and utilise passive solar design principles, and (d) significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas.

Consent for variations to the height, FSR and minimum lot size standards can be granted subject to the provisions of clause 4.6: 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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) -.
Development is also subject to the provisions of the Hills Development Control Plan 2012 (the DCP). Relevant to this appeal, the DCP designates precincts and contains controls in terms of RFBs, parking and landscaping. The site is located within the northern portion of the 'Carlingford Precinct' (the Precinct), the controls for which are found at Part D, Section 12 of the DCP. These indicate that the maximum LEP height of 21m should translate to 6 storeys, that development on sloping sites be stepped so that the ground floor is to be no more than 1m above natural ground level, and that building site coverage is not to exceed 35% of the site area.
The DCP contains Structure Plans for the Precinct as well as an 'Illustrative Masterplan' at Figure 7 (the DCP Masterplan) which provides an indicative future built form outcome for the precinct.
The design of the development is also subject to the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP65) and of the associated Apartment Design Guide (ADG). The DEAP was established under SEPP65 and the Council must consider, but is not required to adopt, the Panel's recommendations.

Site view, objector evidence and expert conferral

The hearing commenced on site where the Court viewed the site and surrounds in the company of the parties and their experts, including planning and urban design experts (the design experts).
The Court heard from an objector who lived in an apartment at 15 Young Road which adjoins the site to the south. The objector raised concerns with traffic and parking, with privacy and overshadowing of his apartment, and with the height of the originally proposed building at 9 storeys. He had been happy with an earlier building for the site which proposed 6 storeys.
A view of the site was taken from the objector's balcony and the design experts agreed that there would be no overshadowing or privacy impacts on his apartment as a result of the development. It was also not evident that the development would result in the isolation of, or restrict access to, 766-772 Pennant Hills Road.
The site view noted that the immediately adjacent property to the east contains a child care centre (the centre) which has play areas above a car park adjoining the common boundary with the site. The Court was advised that the centre was built prior to the area being rezoned for higher density residential development. The Council was concerned with the impact of the development on the outdoor play areas, albeit there is extensive landscaping in the centre's western setback.
The Council was also concerned with the isolation of the centre site in terms of potential future redevelopment, being the same issue raised by the DEAP.
The site view also noted the development on the property adjoining to the south being a 7-8 storey RFB at 15 Young Road.
Whilst onsite, expert arborists conferred and prepared a joint report (Exhibit 10). They advised an agreed position on tree removal and retention, requiring some minor modifications to the bin storage and stormwater arrangements. The applicant also agreed to modify the development to replace ground level terraces with landscaped areas.
Expert evidence provided by traffic engineers outlined in their joint report (Exhibit 7) was that the original Council concerns with access and parking had been resolved with modifications to the application, by additional information, or by proposed conditions of consent. This included that there was adequate parking for the development and the basement car park design was satisfactory, notwithstanding any concerns with these aspects of the development raised by objectors.
As a result of prior conferral of experts, the only experts required to give oral evidence on the remaining contended issues were the design experts. These experts were Mr Gosling, planner, and Mr Bonus, architect, for the applicant and Mr Mead, planner for the Council.

The contended issues

The Council originally raised eleven contentions on which the application should be refused. On the basis of information provided prior to the hearing, and further amendments to the plans, a number of contentions were resolved but the majority remained.
The hearing commenced in September 2017. It was not able to be finalised in the allocated two days and was adjourned until November 2017. Prior to the adjournment, Leave was granted by the Court for the applicant to amend the plans to reflect amendments recommended in expert evidence during the hearing and agreed to by the applicant to further address the contentions.
The Council did not object to the amended plans subject to the applicant paying reasonable costs under s.97B of the Act for assessment of the amendments. This was agreed to by the applicant.
At the hearing, the Council contended that the remaining issues with the development were the bulk and scale of the building as a consequence of its height, FSR, site area and site cover, and the setback and separation from the adjoining site to the east. The impact on trees was also raised.
Whilst acknowledging the positive response of the DEAP to the revised application, the Council argued that the development still had to, but did not, meet the core planning controls. These were FSR, height, minimum lot size and setbacks. Further, that the submitted cl 4.6 requests to vary the FSR, height and minimum lot size did not justify the extent of variations sought.
Arising from oral evidence and proposed further modifications during the hearing, the Council did not subsequently press their concern with site cover but maintained that the other issues warranted refusal.
The applicant contended that the application had been modified to respond to the comments of the DEAP on the original design resulting in the Panel supporting the revised design accordingly. In this regard, the amended design responded to the sloping landform by stepping down the site and the street, with only minor height breaches associated with providing the recommended linked rooftop communal gardens or terraces with associated facilities and additional lifts. The stepping of the building into components enabled the separate rooftop terraces as well as three separate street entrances each with their own address, lift, stairs, lobby and mailboxes. This would activate the street as would all ground floor apartments which had individual street entries. The DEAP had commended the applicant on these features.
The applicant also argued that the revised design provided a northerly aspect to all of the proposed dwellings, had less site cover, more deep soil landscaping and additional tree planting around the site perimeter, and only one driveway, all also in accordance with the DEAP recommendations. As a result of their design response, the DEAP had indicated that they did not need to review the application further. Nevertheless, the Council was strictly applying DCP controls and 'designing by numbers' rather than looking at the merits of the application or of the site, including its topography and context

FSR

The LEP maximum permissible FSR is 1.49:1. The final FSR with plan amendments was calculated at 1.76:1. The Council contended the excess FSR resulted in a development exceeding the site's building envelope controls in terms of height, setbacks and site cover.
A cl 4.6 variation request prepared by Mr Gosling had been submitted with the application (Exhibit F). It was based on an FSR of 1.7:1 equating to some 503.7m² of additional floor space. An FSR of 1.76:1 is in excess of 600m² of additional floor space.
The cl 4.6 request, and the applicant's evidence, argued that excess FSR should be allowed for the following reasons: 1. The additional floor area is largely generated by the reduced setbacks to Moseley Street and Young Road. Whilst the DCP requires 10m and 6m setbacks respectively, the DEAP supported the proposed setbacks of 6.5m to Moseley Street and 5.8m to Young Road. Given the building length is on average 45m, based on these reduced setbacks, the additional gross floor area generated by a setback compliant building envelope would amount to some 945m². However, the proposal does not have this much excess floor area as it increases the setback to the RFB at 15 Young Road. 2. The permissible FSR of the child care centre site is 1.99:1, of the site 1.49:1, and of properties to the west, 1:1. It is therefore clearly Council's intent that there be a transition in height, bulk and scale in Moseley Street from larger buildings at the intersection with Pennant Hills Road tapering down to lower, smaller development. The proposed FSR results in an appropriate transitional building in this context. 3. An Urban Design Study prepared by Bonus Architects shows the built form outcome should adjoining properties be developed in accordance with the permissible FSR, height control and DCP Masterplan This shows the form and scale of development proposed is in keeping with the intended future built form. 4. The elevation is articulated and modulated down Moseley Street to ensure that it does not present unsatisfactory bulk to either adjoining streets. 5. Whilst there has been no redevelopment in Moseley Street in accordance with the higher density controls, the bulk and scale is compatible with the surrounding development given the existence of another tall RFB to the south and a different land use, the child care centre, on the other common boundary. The bulk is separated from the low density dwellings to the west by street trees and by Young Road 6. The bulk has been reduced to Moseley Street presenting as only 6 storeys as envisaged by the controls with the building then stepping down Moseley Street in 4 discrete bays or elements. 7. There will be no overshadowing or privacy impacts to neighbours associated with the additional floor space proposed. 8. The development therefore complies with the objective of the standard to ensure development is compatible with the bulk, scale and character of existing and future surrounding development. 9. The development also meets the standard objective of providing a built form that is compatible with the role of town and major centres being of a height, bulk and scale that is appropriate for its location 50m from the Carlingford Court shopping centre. 10. Notwithstanding the FSR exceedance, the height breaches are minor and will not be visible from Moseley Street nor from the adjoining residential units to the south. 11. In terms of compliance with the objectives of the R4 zone, the development provides for the housing needs of the community within a high density residential environment and encourages high density residential development in a location close to population, being within walking distance of Carlingford Court shopping centre. 12. The exceedance is justified as the proposal demonstrated good urban design, is not excessive in terms of bulk and scale and provides a positive contribution to the streetscape. 13. It would be unreasonable to require compliance given that compliance would require the removal of one storey resulting in only a 5 storey presentation to Moseley Street. It is also unreasonable to require compliance by reducing the depth of the building as the rear setback to 15 Young Road already ranges from 9.1m to 18.4m at the upper levels which exceeds the requirements of both the DCP and the ADG. 14. It would also be unreasonable to increase the setback to the eastern boundary as the child care centre has a 5m setback to the common boundary which is heavily landscaped and not used as play areas. The eastern wall of the proposed building also functions as a blank wall which would ordinarily require either a nil setback or a 9m building separation under the ADG. The proposal provides of 4.5m setback on average due to the splayed nature of the eastern boundary. This is consistent with the building separation requirements of the ADG. 15. The front setbacks to Moseley Street and Young Road are reduced as supported by the DEAP enabling the building to provide a corner treatment to the intersection of Moseley Street and Young Road and facilitating an increase in the rear setback to 15 Young Road thereby improving the amenity to the residents of that building. 16. Compliance with the FSR standard could be achieved if the front setback to Moseley Street was increased to 10m and the rear setback reduced in accordance with the DCP controls. However, this would result in a poor outcome for the residents of 15 Young Road and would be inconsistent with the urban design principle of providing corner element to Moseley Street and Young Road. The proposed FSR will therefore result in a better planning outcome.
The applicant's oral evidence relied strongly on the Urban Design Study prepared by Mr Bonus (part of Exhibit E) which showed the built form outcome should adjoining properties be developed in accordance with the permissible controls and with the DCP Masterplan. Mr Bonus argued that this Study showed the form and height of development proposed was in keeping with the intended future built form but could also co-exist with the child care centre if it was retained.
Mr Bonus also submitted that the building had relatively narrow ends minimising overall bulk and was a better outcome than the existing adjoining RFB at 15 Young Road, which was not disputed by the Council. He argued that, to some extent, the site was sterilised and was constrained by its site area and the fact that the RFB at 15 Young Street had built too close to its boundary. Nevertheless, he had responded to the comments of the DEAP to the extent that the Panel had commended the outcome. Furthermore, there were examples of the Council approving other FSR breaches in the zone.
A key issue was the necessity to design a development that currently has a 2 storey child care centre adjoining which is likely to remain for the foreseeable future but which one day could conceivably be redeveloped for an RFB up to 9 storeys.
Mr Mead argued that the amount of floor space resulted in a development which was not compatible, and therefore could not exist in harmony, with the bulk, scale and character of existing development on the adjoining eastern property being a recently constructed low scale child care centre which, in his view, was unlikely to be redeveloped in the short term. In this context, the development provided a poor transition to its eastern neighbour with a sheer 6 storey wall devoid of articulation. Further, this elevation was not supported by the DEAP.
Whilst agreeing that the development met the zone objectives, the Council argued that a compliant development could also provide the desired urban transition and gradation down Moseley Street and would result in a development also compliant with core standards of height, setbacks and building separation as well as allow protection of significant trees. Further, a compliant, smaller development would result in less impact on the adjoining property to the south in terms of overshadowing and visual bulk as well as providing a more appropriate visual transition to the child care centre and existing single dwellings in the street.
In the Council's view, the cl 4.6 request had also not demonstrated that FSR compliance would be unreasonable or unnecessary when a compliant building with significantly reduced floor area could comply with all of the relevant controls. The Council did not accept that it would result in more appropriate relationship with 15 Young Road nor that a smaller building would result in a less successful corner treatment. As a compliant development scheme had not been submitted, there was no evidence that it would result in an inferior urban design outcome.
Mr Gosling argued that the greatest bulk would be on the southern, not eastern, elevation being the lowest part of the site but least visible, and that 175m² resulted from part of the basement having to be counted as gross floor area given its height above ground level due to the topography of the site albeit much of it was screened by planter boxes. He argued that, spread across the development, this amount of floor space would be indiscernible. Mr Mead disagreed arguing that the height of the basement added to the building's overall bulk and height.
The applicant also contended that there was tension in the FSR objectives which require that proposed development be compatible with the bulk, scale and character of existing and future surrounding development, as there will be a significant difference between what exists now and what is likely to exist in the future in this precinct which is undergoing redevelopment.

Height

The proposed development exceeds the maximum permissible height of 28m. With a partial seventh storey, it also does not comply with provisions of the DCP at Part D12 which require a maximum of 6 storeys. The DCP also requires that, for sloping sites, the ground floor should not exceed 1m above natural ground level. The development does not comply with this requirement.
A cl 4.6 request to vary the maximum height had been prepared by Mr Gosling (Exhibit E). In essence it mirrored many of the arguments in the FSR request and was the basis of the applicant's evidence. It argued that the excess height should be allowed for the following reasons: 1. There is an existing 7-8 storey RFB adjoining the site to the south at 15 Young Road. The proposed development presents as 6-7 storeys to Young Road and is therefore compatible with this adjoining RFB. 2. The height is compatible with the function and operation of the child care centre adjoining to the east. This centre has a 2 storey presentation to Moseley Street and is setback some 5m from the common boundary. This setback is heavily vegetated and is not used for outdoor play areas. The orientation of the proposed development ensures that the centre receives northern winter light. The centre is an educational facility and will always have a different form to an RFB. However an RFB is not incompatible with the scale and function of a child care centre. The development will not cause adverse overshadowing, generate any acoustic issues or adverse privacy impacts on the centre. The two uses can therefore appropriately be located next to each other. 3. The development is separated from 1-2 storey dwelling houses to the west along Moseley Street by Young Road. Therefore the height would not generate any adverse privacy or overshadowing impacts to these dwellings. Furthermore, development opposite in Moseley Street comprises a park, school and church. 4. The scale and height of the building needs to be read in the context of the existing mature street trees in Young Road which form an integral part of streetscape. The building sits behind these trees. 5. In terms of the standard objective of ensuring the height is compatible with that of adjoining development and the overall streetscape, regard must be had to the desired future character for Moseley Street as well as to the existing character, and therefore to the building height controls for the site and adjoining sites. In this regard, the child care centre site has a height limit of 27m, the site of 21m, the four properties to the west of 16m, and the remainder of the properties to the west, on the southern side of Moseley Street, of 10m. It is therefore clearly Council's intent that there be a transition in height down Moseley Street from 9 storeys at the intersection with Pennant Hills Road tapering down to 4 storeys at the intersection of Jenkins Road. The proposed development at 6-7 storeys is an appropriate transitional building in this context. 6. The Urban Design Study prepared by Bonus Architects shows that the form and height of development proposed is in keeping with the intended future built form. 7. There is an anomaly in the DCP restricting buildings within the 21m height limit to 6 storeys when 7 storeys can be designed within 21m. 8. The only height breach in the front facade viewed from Moseley Street is the sunroom element of unit 2114 which has a maximum 220mm exceedance for an extent of approximately 2m of the facade. Due to the site's topography, the non-compliant area is triangular with the northern end of the sunroom compliant and extends to the south forming a wall to the communal roof garden and enclosing the lift overrun. It is at the southern end of this structure that the maximum height exceedance of 1.41m occurs. 9. Other height exceedances are minor. They include part of the roof of the terrace of unit 2114 with a 150mm breach. However, the roof is setback 3m from the front facade so the breach will not be visible from Moseley Street. Due to the slope of the site, there are also elements of the roof garden, mechanical exhaust rises and lower louvered screens that breach the height limit. These elements are all setback from Moseley Street and Young Road and will not be visible from ground level nor from the adjoining residential units to the south. 10. In terms of meeting the standard objective of minimising the impact of overshadowing, visual impact, and loss of privacy on adjoining properties and open space areas, the height exceedances are limited to rooftop elements (with small exceptions) and do not generate adverse solar access impacts compared to that of a complying scheme. A roof garden is proposed however, it is setback from the southern boundary of, and will not generate any adverse visual privacy impacts for, adjoining properties. The communal roof areas orientate towards the north and overlook the reserve and the church. 11. In terms of compliance with the objectives of the R4 zone, the same arguments were given as were given to support the FSR exceedance. 12. There is precedence of the Council allowing height variations. This included for the adjoining RFB at 15 Young Road which presents as 7 storeys to Young Road and 8 storeys in other portions visible from Young Road. Other examples cited were in Post Office Street and Donald Street in proximity to the site. 13. It would be unreasonable to require compliance given the minor extent of the non-compliance and that compliance would either require the removal of 1 storey, resulting in only a 5 storey presentation to Moseley Street, or for the ground level units to be subterranean resulting in poor amenity outcomes. 14. In this regard, the development is a better planning outcome than would otherwise occur if strict compliance was required resulting in the removal of 1 storey for at least that part of the building where the height limit is exceeded. This would upset the rhythm of the stepping nature of the building and require the removal of rooftop elements associated with the communal roof gardens. The gardens will provide a good level of amenity for future residents. 15. The non-compliances do not raise any matters of state or regional significance and there is no public benefit in requiring strict compliance. 16. In summary, the height breaches are justified as the proposal demonstrated good urban design, is not excessive in terms of bulk and scale, and provides a positive contribution to the streetscape. The development is well articulated and modulated, with the non-compliances minor and limited to small areas comprising rooftop features associated with the roof gardens or which screen services and plant including the walls to the roof garden which conceal the lift overrun and other plant elements. The non-compliances are in part a result of the topography of the site and will be barely perceptible from the adjoining RFB or from any public place.
In oral evidence, the applicant argued that the majority of the height breaches were associated with the architectural roof elements as defined in cl 5.6 of the LEP. There was much oral evidence on what these features comprised, in particular whether they were decorative elements, including a proposed pergola and wall to an upper level unit. The Council maintained they were not confined to roof features as defined by cl 5.6 of the LEP.
The Council accepted that the development met the objectives of the zone but contended that the proposed height was not compatible with adjoining development contrary to the objectives of the height standard at cl 4.3 resulting in a bulk and scale not in harmony with such development.
The Council argued that height compliance would facilitate a reduction in building bulk and FSR resulting in a development compliant with the DCP's maximum storey control. Requiring such compliance was not unreasonable. Furthermore, the cl 4.6 request had not demonstrated sufficient environmental planning grounds to justify the breaches or that a building of compliant height would not also achieve an appropriate transition to future development on adjoining properties whilst providing a more acceptable relationship with existing development. Finally, the circumstances were not unique or particular to the proposed development and would equally apply to all development in Moseley Street.
The Council noted that the development contravened all three controls in the DCP for development in the Carlingford Precinct; being too high in metres with too many storeys, and with a ground floor not within 1m of natural ground level.
As a result, Mr Mead considered that the non-compliant height added to the building's bulk when viewed from the south and from Moseley Street and would likely result in overshadowing of the adjoining property to a greater extent than that resulting from a compliant development. Furthermore, the development did not meet the objectives of cl 4.2.1 as it neither reflected the existing landform of the property (objective a) nor protected the amenity of the adjoining properties (objective b).
The applicant argued that overshadowing caused by the non-compliant height elements would be minimal if any and that what might technically be defined as an extra 'storey' was largely as a result of the sloping nature of the site. There were only 6 habitable storeys and the 'seventh' storey was only the base. The height breaches were caused primarily by the rooftop terraces which were acknowledged as adding amenity to the development. Furthermore, if the height was lowered by the loss of a storey, and the child care centre site was redeveloped up to 9 storeys, it would create a greater anomaly and discord in height between that new RFB and the proposal.
Arising from oral evidence at the hearing, amendments were made to the plans to reduce the height breaches. This included removing one set of fire stairs. The maximum exceedance was reduced from 1.8m to 1.4m and only a maximum of 40mm in the western portion of the building. The applicant maintained that these breaches were design features which either provided amenity to the rooftop terraces or screened plant on the roof. However, the Council argued breaches were also caused by the lift overrun and the external wall to unit 2114 and that the cl 4.6 variation was accordingly required to justify the variations sought.
Mr Bonus argued that minor height breaches were not unusual on sites with irregular topography. In this regard, he noted that part of the building was below the maximum permissible height, including at its eastern end adjoining the child care centre, with the height symptomatic of a sloping site where portions of a building are above, and portions below, the permissible height.

Minimum lot size

The site area is 2099m² and the LEP required minimum site area for RFBs is 4000m². However, the parties agreed that the site could be smaller than 4000m² if the provisions of cl 4.1A (3) were met, or otherwise as justified under cl 4.6.
A cl 4.6 variation request was prepared by Mr Gosling and submitted with the application (Exhibit D). In essence it, and the applicant, argued that the variation to the lot size should be allowed for the following reasons: 1. It is not possible to amalgamate the site with adjoining properties. To the south, at 15 Young Road, is a recently constructed RFB. To the east is the child care centre estimated to be approximately only 10 years old and not nearing the end of its economic life. Furthermore, the applicant had approached the owner of the centre who was not interested in closing down and selling to the applicant for to facilitate RFB redevelopment. 2. The Urban Design Study prepared by Bonus Architects shows the built form outcome should adjoining properties be developed in accordance with the permissible FSR, height control and DCP Masterplan This shows the site being developed in isolation of adjoining sites in an RFB form. It also shows the child care centre site as an 'L shaped' corner development extending into Pennant Hills Road and 766-772 Pennant Hills Road being separately developed. 3. Notwithstanding its size, the amalgamation plan in the DCP for the precinct also shows the site developed in isolation rather than proposing its amalgamation with adjoining sites. Even if it were amalgamated, the built form outcome would be the same if it reflected the DCP Masterplan. 4. In terms of compliance with the objectives of the R4 zone, the same arguments were given as were given to support the FSR and height exceedances. 5. In terms of meeting the objectives under cl 4.1A (3), the form of the proposed structures was compatible with the adjoining structures in terms of elevation to the street and height. The 6 storey presentation to both streets was reiterated along with the transitional stepping of the building down Moseley Street. Objectives a), b) and c) were met in terms of the design of apartments and open space and meeting energy needs, and the agreed setbacks to Young Road was designed to protect existing mature street trees on the verge thus meeting objective d). There were also no adverse amenity impacts to neighbours notwithstanding the smaller lot size. 6. An attachment was included to the request showing that the Council had varied the minimum lot size requirement for RFBs on 13 previous occasions including at 1 Post Office Street, which is in reasonable proximity to the site and where the lot size is only 1,872m². 7. The non-compliance did not raise any matters of state or regional significance and there was no public benefit in requiring strict compliance, particularly when the envisaged built form outcome would be the same. 8. Given the above, and the fact that to not allow the development because of the lot size would sterilise the site, it was unreasonable or unnecessary to comply with the minimum lot size requirement.
In oral evidence, Mr Bonus argued that the site was always going to be an 'orphan site' given the scale and relatively recent construction of substantial buildings either side. Whilst, as a result of the arborists' conferral and amended plans, some significant trees were now to be removed, the applicant was happy to replace them.
The Council accepted that the development met the objectives of the zone, however, argued that the bulk, scale, height and setbacks were inappropriate for the size of the site. If the site was larger, there would also be more options in terms of access, built form location and tree retention. The Council also had not seen any evidence of an offer to purchase the centre site.
The Council claimed the development did not meet the requirements of cl 4.1A(3) in that the form of the proposed structure was incompatible with adjoining structures in terms of their elevation to the street and building height, the design and location of room and windows of the proposed structure did not ensure acceptable acoustic and visual privacy, particularly for any future development to the east, and significant existing vegetation was not retained or sufficient landscaping incorporated into the eastern setback.
Mr Mead also argued that, by exceeding the FSR, the development exceeded the planned residential density contrary to objective 4.1A(1). The applicant argued more floor space did not necessarily equate to more apartments, just larger ones.
Ultimately, the Council accepted that the site was capable of being developed for an RFB and did not oppose such a use, per se, notwithstanding the site area non-compliance. The issue was the height, scale, setback and landscaping of the development relative to the site area and context.

Setbacks and building separation

The Council's concern with setbacks related to the eastern boundary to the child care centre site. The proposed setback to this boundary ranges from 3.8m at Moseley Street to 5.2m at the rear elevation, at an average of 4.5m, with no insets at upper levels and with habitable rooms along the eastern elevation.
The Council considered these setbacks would result in an inadequate separation of buildings being to the child care centre and any potential future RFB redevelopment of the centre site.
Part 3F of the ADG deals with privacy and requires side setbacks for elevations with habitable rooms of 6m up to 4 storeys and 9m over 5 storeys. The development breaches these setbacks at Levels 2 to 5 by 2m and, at Level 8 and above, by up to 5m.
Mr Mead considered these setbacks were not only inadequate but were exacerbated by no articulation along the eastern facade or upper level insets resulting in excessive building bulk that would be highly visible due to the low scale nature of the adjoining child care centre.
Accordingly, the Council was concerned that the development would not provide appropriate massing or spacing between buildings contrary to the aims and provisions of the ADG. It would also require any redevelopment of the centre site to have increased setbacks to achieve adequate separation and therefore did not represent an equitable sharing of separation distances between properties contrary to ADG objectives. The concern was that the applicant had not considered the existing development on adjoining properties and such responded poorly with its context with a development that was not consistent with the desired future character of the Carlingford Precinct.
The applicant argued that the amended design located windows, balconies and open spaces to ensure acceptable acoustic and visual privacy. The design met all building separation principles in terms of overshadowing and privacy even if the centre was redeveloped for an RFB. Further, the revised design proposed a smaller building footprint than the original application, reducing the building depth from up to 18.6m to a maximum of 11.6m, reducing the building site cover, and providing increased deep soil to allow more landscaping and tree planting around the site's perimeter including to the eastern boundary. Amendments made to the plans included translucent highlight windows to the eastern elevation. These would provide light and articulation without adversely impacting privacy.
Mr Bonus also queried whether the rooms in the eastern elevation should be classified as habitable from an amenity impact perspective if they only contained obscure, highlight non-openable windows. However, the Council argued it was their use not their design in terms of applicable ADG controls. There was also some debate about whether child care rooms were habitable.
The applicant submitted that the child care centre was a different but compatible use to an RFB and could co-exist with the proposed RFB without having controls having to be imposed as if it were an RFB. In this regard, it would always be difficult to make a 6 or 7 storey RFB compatible in a built form sense with an adjoining 2 storey child care centre, but both were permissible under the controls and the applicant had had reasonable regard to the interface with no adverse amenity impacts.
Mr Mead agreed that there were no aural, privacy or overshadowing issues in terms of the child care centre. However, the limited eastern setback compromised the ability for quality landscaping within the setback area which could assist the outlook from the adjoining site to a 6 storey wall.
However, the applicant argued that, in terms of the child care centre, it was setback more than 4.5m from the common boundary, was largely enclosed, and had its own extensive landscaping in its western setback area limiting any outlook to the west. Furthermore, the DEAP had even suggested a nil setback could be provided for the development to its eastern boundary.
In addition, Mr Bonus argued that, if the eastern wall was lowered and the child care centre site was redeveloped up to 9 storeys immediately adjoining on higher land, it would provide too great a difference in height between the two developments resulting in a poor urban design outcome. This would be exacerbated if only the eastern wall was further lowered but the remainder of the development was higher in accordance with the permissible height leading to a 'missing tooth' outcome when viewed from Moseley Street.

Findings

The Council's concerns with this development were the variations to development standards sought and the impacts these variations would have. In particular, that the variations to height and FSR did not meet the LEP objectives for the standards and the cl 4.6 variation requests did not justify the variations sought accordingly. Nor were the LEP minimum lot size variation requirements met and there was an insufficient eastern (side) setback. The application ought therefore be refused despite general support to the proposal (as amended) from the Council's Design Excellence Advisory Panel.
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that, where LEP standards are not met, consent cannot be granted unless the Court is satisfied that the proposed development will be consistent with the objectives of the zone and with the objectives of the standard/s in question, has considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and is satisfied that the matters required to be demonstrated have been adequately addressed.
The development site is constrained by both adjoining developments and the Council acknowledged this as well as the fact that the lot could be developed as an RFB. It was only the scale of that RFB that was of concern in terms of FSR and height non-compliance and the eastern elevation.
I will deal firstly with the FSR as it was this standard which had the greatest breach but which the applicant claimed was largely as a result of reducing the setbacks to both streets which was a design feature supported by the DEAP.
The applicant argued that the development had not sought to maximise the amount of floor space facilitated by the reduced street setbacks instead increasing the setback to the existing RFB to the south at 15 Young Road beyond that which the controls require thus reducing the amenity impacts for residents of this RFB.
I agree that both the reduced street setbacks and the increased setback to the RFB at 15 Young Road are beneficial planning outcomes.
The Council and the DEAP agreed that the form and design of the building responded to the topography and is a better planning outcome than the previous design. The Council however, argued for a smaller development compliant with the height and FSR standards.
I agree that the stepping of the building down the street with the topography is a preferred development outcome rather than undertaking cut and fill to create a level site. This design response does however, result in the base of the building, namely the top of the basement, being higher than 1m in certain locations. On this basis, that elevated basement area is required to be included as floor space which would not otherwise be the case. This adds to the excess FSR.
Whilst I agree with the Council that a compliant scheme ought to have been prepared by the applicant to demonstrate the proposed design is a better planning outcome, on the basis of the evidence provided, I am persuaded that an FSR compliant scheme would result in the likely loss of a storey across part or all of the development and I consider this would have unnecessary adverse outcomes. It would be an anomaly relative to the 7-8 storey RFB at 15 Young Road and in the context of any future redevelopment of the child care centre site for an RFB up to 9 storeys. Such an outcome would result in an inappropriate future height transition in the streetscape.
Given there were was no evidence of any specific adverse amenity impacts associated with the additional FSR sought, I agree with the cl 4.6 request that compliance with the FSR standard in this instance is unnecessary and that there are sufficient environmental planning grounds to support the FSR sought, including that it is a good urban design outcome.
In this regard I note that the Council agreed that the development complied with the objectives of the zone. I also consider that it meets the objectives of the standard as it is of a bulk, scale and character contemplated in this location having regard to both the existing and the future surrounding development. To the extent that it is relevant, it is also a compatible built form for a major centre.
I also agree with the applicant that there can be tension in the FSR objectives requiring that proposed development be compatible with the bulk, scale and character of both the existing and the future surrounding development when there are significant difference between what exists now and what is likely to exist in the future, as is the case for this site.
By example, the site has a 2 storey child care centre adjoining which is likely to remain for the foreseeable future but which one day could well be redeveloped for an RFB up to 9 storeys. The proposed development is therefore required to have an appropriate contextual fit under both scenarios.
Having regard to this context, I consider the development's design to be a reasonable response. It may appear as an anomaly in the streetscape whilst the child care centre remains but it would be a greater anomaly were the FSR reduced and the height of the development on the highest portion of the site lowered to respond to the height and scale of the centre but the centre site is then redeveloped at up to 9 storeys in the future.
At either the proposed or compliant height and FSR, a new RFB on the site will be significantly taller and bulkier than the adjoining child care centre and a compliant development would therefore likely make little difference to the resultant juxtaposition of built form and scale in the streetscape.
It is however, the case that the FSR breach also needs to be considered in terms of the consequent height and amenity impacts.
The development breaches the LEP maximum height control as I agree with the Council that not all elements above the height limit are architectural roof features as defined by the LEP.
However, I consider that the breaches are relatively minor and are justified by the cl 4.6 written request lodged. In particular, they are largely associated with the rooftop terraces (which are more amenable features than a flat roof), and/or assist in screening plant. I also accept that they will be largely imperceptible from the street and aspects of the development are below the maximum height limit, including immediately adjacent to the child care centre.
I also accept the applicant's argument that, when designing to respond to the topography of a sloping site, it is the case that some elements will be higher and some lower than the height limit. In this instance, the breaches occur in locations which, on the evidence provided, cause no adverse amenity, visual or overshadowing impacts.
I therefore do not consider it be a reasonable outcome that the development is reduced by a storey or partial storey or that elements of the rooftop terraces or aimed to screen plant are removed in order to address relatively minor height breaches over part of the building which have no demonstrable adverse impacts.
I also accept the evidence of the applicant's experts that the development will largely present as a 6 storey building to Moseley Street as intended by the DCP controls albeit located above an elevated basement.
The height non-compliances are at least in part generated by the topography of the site and the rooftop structures associated with the communal roof gardens which are agreed to add amenity for the occupants. They will also be positive elements in the streetscape.
Nor does a building result that is inconsistent with the desired future character of the locality. The Urban Design Study prepared by the applicant's architects usefully indicatively shows how the area could reasonably be redeveloped over time in response to the current controls, including how the proposed development would be appropriate in this context.
The design, in my view, represents a sensible and compatible massing of building responding to topography (whereas the original application did not) and breaking the building into segments allowing the development to read as a series of elements with separate entrances thus activating the street and reducing bulk, a feature of the design supported by the DEAP.
Relevantly, the DEAP raised no concern with height, bulk, scale or character, instead commending the architect on the design response to the site.
In my view, it is equally important to have a quality design as a numerically compliant one. Whilst it could be that both are achievable on the site, there was no evidence of this. There was however, evidence of the applicant responding to the advice of the Council's DEAP in terms of the general building envelope and design elements to the extent that the Panel indicated they did not need to see any further plans to be satisfied with what was proposed.
In this regard, I accept the applicant's argument that the views of the DEAP are highly significant. Whilst they are not determinative, they support development of the site for an RFB generally in the manner proposed.
I also find there is little, if any, argument of adverse likely precedent given the circumstances of the case. There is a taller RFB adjoining one boundary, the design of which the Council agreed was not a desirable urban design outcome, and there is a non-residential use adjoining the majority of the other common boundary. The development also has to appropriately address a corner location in a context of transitional FSR and height controls.
In summary, as the height breaches arise largely from facilities designed to improve the amenity of the rooftop terraces, do not have adverse amenity or streetscape impacts, and respond to the slope of the site being offset with lower heights on more sensitive parts of the development, I therefore agree with the cl 4.6 findings that compliance with the FSR and height standards is unnecessary in this instance as there are sufficient environmental planning grounds to warrant the breaches sought.
In terms of non-compliance with the minimum lot size under cl 4.1A of the LEP, the development must meet the provisions of sub-clause (3), and therefore the stated objectives, or satisfy the provisions of cl 4.6 to vary the required size.
Given my findings that the height and FRS are acceptable in its context, it follows that the development form is compatible with adjoining structures in terms of their elevation to the street and building height as required by objective a) of cl 4.1A(3). Furthermore, and not disputed by the Council, the location of rooms, windows and balconies, and the open space provided, ensures acceptable acoustic and visual privacy as required by objective b), and the dwellings are designed to minimise energy needs and utilise passive solar design principles as required by objective c).
However, not all of the significant existing vegetation will be retained. Therefore objective d) is not met and the cl 4.6 request must be upheld accordingly. This is notwithstanding that the proposed tree removal is necessary to allow an appropriately accessed and positioned RFB on the site, with landscaping incorporated within setbacks and open space areas, and that the tree removal and landscaping was acceptable to the Council's arborist.
For the reasons that follow, I am satisfied that the cl 4.6 variation request adequately justifies the variation sought to the minimum lot size standard.
The DCP Precinct Masterplan and amalgamation plan both support the site being redeveloped for a substantive building, logically an RFB given the zoning and form, in isolation.
Compliance with the minimum lot size standard would result in the site not able to be redeveloped in isolation for an RFB which would therefore appear contrary to Council's own DCP articulated future built form outcome for the site.
The same could be said in terms of non-compliance with the amalgamation intent outlined in the DCP if the applicant was required to amalgamate with adjoining sites, being either the child care centre site, 15 Young Road or 766 Pennant Hills Road, which, accordingly, is also not a reasonable requirement.
Furthermore, the child care centre is relatively new and not an insignificant structure and the only advice provided to the Court indicated the centre owners did not wish to sell the site for redevelopment. There is a taller relatively new RFB on 15 Young Road and it would not be feasible or expected that this site be amalgamated with the appeal site to facilitate the same development outcome, namely an RFB.
Finally, whilst the experts did not address in any detail the potential to amalgamate with 766 Pennant Hills Road, whose rear boundary partly adjoins the site on its eastern rear boundary, nor raise any concerns with the impact of the proposed development on this property, I note that the DCP Masterplan and amalgamation plan both show 766 Pennant Hills Road being amalgamated and developed with adjoining properties in Pennant Hills Road to the west. Amalgamation of this property with the appeal site is therefore not a reasonable requirement.
I also note the evidence that the Council had allowed other RFBs on lots of less than 4000m² including on smaller lots in the vicinity.
Given these circumstances, I am satisfied that there are sufficient planning grounds to vary the minimum lot size requirement.
I do so accepting however, that the DEAP still raised issues with the eastern elevation to the child care centre albeit they suggested a nil setback to the boundary of the centre could be appropriate.
Dealing lastly with this setback, I was not persuaded about the benefits of increasing it. The centre site presents a difficult site constraint as it currently contains a relatively new 2 storey child care centre but could reasonably be redeveloped for an RFB up to 9 storeys at some point in the future, which is significantly taller than what is proposed for the site. The applicant therefore has had to design a development which ensures the amenity of both the existing and likely longer term use. At the same time, the development is required to also address two street frontages and a tall RFB close to the remaining boundary.
The eastern elevation, as amended, contains no openable windows to minimise restrictions on future redevelopment of the centre site but proposes highlight windows to add light and articulation to the elevation. I consider this an appropriate response. Furthermore, there is extensive landscaping adjoining the boundary on the centre site and there were no issues of overshadowing or overlooking of the centre raised by the Council. I also note there was no objection to the proposed development from the centre operators.
Furthermore, both RFBs and child care centres are permissible in the R4 zone. As child care centres are not typically developed at more than 2 storeys, there will likely be an anomaly in height where they adjoin taller RFBs as the controls allow in this instance. I accept that this does not mean the two adjoining uses are incompatible.
I again note that the height of the proposed development immediately adjacent to the centre is less than the maximum permissible height and the advice of the DEAP that a nil setback on the eastern elevation could be considered.
I also consider that the applicant has provided an adequate separation to any future taller RFB on the site to the east proposing a setback and elevational privacy treatments having regard to this potential outcome. As I have already indicated, to lower the eastern wall of the development would, in my view, result in an inappropriate streetscape outcome should the child care centre site ultimately be redeveloped which is a likely outcome in the longer term given the controls allow an RFB of up to 9 storeys on this site.
Having regard to these circumstances, I find the proposed height, setback and treatment of the eastern elevation, and the interface with the adjoining child care centre site to the east, to be acceptable.
In summary, I consider the applicant's evidence and cl 4.6 requests support the variations to the standards sought and the degree of flexibility to vary the standards provided by cl 4.6(1)(a) is appropriate in the circumstances of the site as it will provide a better outcome for and from the development. This finding is in line with that of the Council's Design Excellence Advisory Panel.
Furthermore, to vary the standards as sought would be in the public interest as the variations meet the objectives of the standards and of the zone, noting the Council also agreed the development met the zone objectives.
No matters of state or regional significance are raised from the variations sought and, on the evidence before me, there would be no public benefit in maintaining the height, FSR or minimum lot size standards in this instance.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. DA/534/2016 for a residential flat building at 17-21 Moseley Street, Carlingford is approved subject to the conditions in Annexure "A". 3. The applicant is to pay the respondent's reasonable costs under s.97B of the Environmental Planning and Assessment Act 1979 for assessment of the amendments to the application, as agreed or assessed. 4. The exhibits are returned except Exhibits 1, C, K and L.

Jenny Smithson Commissioner of the Court Annexure A (147 KB, pdf)

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: 08 February 2018

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Judgment (13 paragraphs)

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