O'Connor v Ku-ring-gai Council

Land and Environment Court (NSW)|2022-02-11

Judgment

COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Ku ring gai Council (Council) of development application DA0025/21 which proposes a shop top housing development at 2 and 4 Park Crescent, Pymble (site).

Site and physical setting

I rely on Council's Amended Statement of Facts and Contentions (Ex 1) for much of the factual material in this and the following two descriptive sections.
The site is identified as Lot 1 DP 210016 and Lot 1 DP 315780, and has a combined area of 1096m². The site has an irregular shape as 2 Park Crescent extends rearward beyond number 4 Park Crescent. The site has a frontage of 33.715 metres to Park Crescent.
The site slopes in an east/west direction with the western most corner (RL 140.52) being approximately 6.1 metres higher than the eastern most corner (RL134.4). Each of the lots which comprise the site are occupied by one and two storey brick dwelling houses with terracing and associated retaining walls within the front and rear yards in response to the slope.
The site is located within the Pymble Local Centre and is in close proximity to the Pymble commercial precinct and Pymble Railway Station. Robert Pymble Park is located immediately opposite the site to the northeast. Two and three storey commercial buildings are located to the south of the site with ancillary car parking areas being located adjoining the rear boundary of the site. There are driveways to the immediate east of the site then a Council carpark.

Proposal

The amended application seeks the grant of consent for demolition of existing structures and certain tree removal, and construction of a shop top housing development consisting of two commercial business tenancies at ground level, eight residential apartments over three levels above, car parking at the basement and ground level (although this would be in an excavated area), landscaping and associated works.

Statutory setting

The site is zoned B2 Local Centre under the provisions of Ku-ring-gai Local Environmental Plan 2015 (KLEP), as is land to the immediate south, east and west. Robert Pymble Park, immediately across Park Crescent to the north, is zoned RE1 Public Recreation.
The applicable height of buildings development standard is 11.5m which the proposal would contravene. The applicant relies on cl 4.6 of KLEP which allows for exceptions to development standards provided certain prerequisites are met. While it is for the Court to make its own determination in regard to whether a cl 4.6 exception should be applied in the circumstances, I note here that, the planning experts are of the view that the height contravention should not be determinative and Council does not press the height contravention in its contentions.
Of somewhat disputed relevance is cl 5.10 of KLEP. What is clear is that the adjoining site to the west, at number 4A Park Crescent (aka 3 - 5 Post Office Lane), is a locally listed heritage item under KLEP as a Georgian Revival style dwelling house. A further listed heritage item is located within 100m of the site at 3-5 Alma Street, to the northeast. The site is also immediately south of the Park Estate Heritage Conservation Area under KLEP, which includes Robert Pymble Park. There is no dispute that the Ku-ring-gai Development Control Plan (KDCP) requires consideration of the impact of development in close proximity to a heritage item or a heritage conservation area.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) also applies.
KDCP applies to the site and certain provisions are key considerations in evidence.

Proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy. In this instance the opportunity was taken to conduct a restricted inspection of the site and context, where lay submissions objecting to the proposal were heard. Proceedings otherwise were conducted on the Microsoft Teams platform.
The experts providing evidence in the proceedings were as follows: Expert Expertise Engaged by J Phillips Heritage conservation Applicant V Holtham Heritage conservation Council G Chapman Town planning Applicant L Donovan Town planning Council M Zanardo Urban design Applicant

Issues

With the amendments to the application, issues warranting attention in this judgment can be generally summarised as follows:

Heritage conservation impacts - in particular in regard to impacts on the adjacent heritage item and the nearby heritage conservation area.
The internal amenity available to future occupants.
Lay objecting submissions.
Disputed conditions.

There are also certain jurisdictional issues to be considered including the building height contravention.

Heritage conservation - unsatisfactory impacts upon the adjoining heritage item at 4A Park Crescent and the Park Estate Heritage Conservation Area

Introduction

Contention 4 is that the "proposal will have an adverse impact on the heritage significance of a local heritage item and a conservation area and is therefore inconsistent with the LEP and DCP" (Ex 1 p 12). The most particular points of attention are the adjoining heritage item at 4A Park Crescent and the Park Estate Heritage Conservation Area (HCA).
Council is concerned that the proposal is incongruous and that due to the buildings height and (minimal) front setback it would visually overwhelm the adjoining heritage item which is "substantially setback from Park Crescent and recessive in the streetscape". The proposal's response to the "falling topography" is also seen to be inadequate. A key factor is that the site is at the interface with both the listed heritage item and the Park Estate HCA. Council submits that it is important that new development provides an appropriate transition and 'buffer zone' to all heritage assets.

Heritage conservation provisions, including Part 19F of KDCP

I agree with the applicant that the trigger to engage the provisions at cl 5.10(4) of KLEP is not present, as in this instance the proposal is not itself a heritage item or within a HCA. Nonetheless, I do note the objectives of cl 5.10 and otherwise the interest in heritage conservation for example as posited at subcl 1.2(f), which nominates the following as an aim of KLEP: to conserve Ku-ring-gai's indigenous and non-indigenous cultural heritage
The following provisions in KDCP are relevant. Part 19F is concerned with development in the vicinity of heritage items or HCAs. The objectives at cl 19F.1, concerned with local character and streetscape, are: "1.To consider the impact on the historic curtilage and setting of the Heritage Item or HCA and related heritage features such as views, streetscape context, historical subdivisions, garden settings, alienated trees and other landscape features. 2.To retain the significance of Heritage Items or HCAs in their settings. To ensure that the scale of new development does not dominate, detract from or compete with Heritage Items or HCAs in the vicinity. 3.To ensure that new development respects and conserves the significance of any nearby Heritage Items or HCA and their settings. 4.To ensure that new development does not visually dominate the adjoining or nearby Heritage Item or HCA. 5.To ensure that the scale of new development in the vicinity of the HCA is in harmony with the streetscape and does not dominate, detract from or compete with the Heritage Item or HCA. 6. To ensure that the scale of new development in the vicinity of the HCA is in harmony with the streetscape and does not dominate, detract from or compete with the Heritage Item or HCA. 7. To protect significant views and vistas to and from the Heritage Item or HCA."
A heritage impact statement is required for development in the vicinity of a Heritage Item or HCA under cl 19F.1.1 and has been supplied in this instance.
Clause 19F.1.2 is concerned with built form and provides that: "Development on sites that either directly adjoin or are in the vicinity of a Heritage Item or an HCA is to have regard to: i) the form of the existing building or buildings including height, roofline, setbacks and building alignment; ii) dominant architectural language such as horizontal lines and vertical segmentation; iii) proportions including door and window openings, bays, floor-to-ceiling heights and coursing levels; iv) materials and colours; v) siting and orientation; vi) setting and context; vii) streetscape patterns."
Clause 19F.1.4 is concerned with views and provides that: "New development in the vicinity of a Heritage Item or HCA is to demonstrate that it will not reduce or impair important views to and from the Heritage Item from the public domain."
Clause 19F.2 is concerned with building setbacks. Its objectives are: "1. To ensure new work in the vicinity of a Heritage Item or HCA respects and contributes to the established streetscape patterns through careful siting of new buildings. 2. To ensure new development provides an interface of scale and bulk to preserve the amenity to the adjacent Heritage Item or building within a HCA. 3. To ensure new medium and high density development does not visually dominate the Heritage Item or building within the HCA."
The controls at cll 19F.2.1 and 19F.2.2 provide as follows with respect to setbacks and residential context: "Setbacks 1. The front setback of development adjacent to a Heritage Item or buildings within an HCA is to be greater than that of the Heritage Item or building within the HCA. Where variations in setbacks exist, the larger setback will apply. Residential Context 2. All medium and high density development is to have a stepped facade to any common boundary with a Heritage Item or building within the HCA. The facade is to be stepped back above an 8m height from natural ground level as per Figure 19F.2-1. Facades greater than 8m high will not be permitted adjacent to a Heritage Item or building with an HCA."
In addition to the side and rear setbacks that apply elsewhere in KDCP, cl 19F.2.3 requires development adjacent to heritage items to comply with the following: "i) adjacent developments are to have a minimum 12m building separation to the Heritage Item or building in the HCA (more if setback requirements are not met within the 12m) as per Figure 19E.3-1; ii) adjacent development is to not exceed a facade height of 8m from existing ground level, including balustrades; iii) adjacent development with a building mass above 8m high from existing ground level is to be stepped back an additional 6m from the Heritage Item as per Figure 19E.3-1; Where variations in setbacks exist the larger setback will apply."
There is a further objective under cl 19F.3.1, in regard to gardens and landscaping: "To ensure that new development does not impact on the landscape character and garden setting of any nearby Heritage Item or HCA."
The control at cl 19F.3.1 is that: "Development in the vicinity of a Heritage Item or an HCA is to: i) retain original or significant landscape features associated with the Heritage Item or HCA, or which contribute to its setting. In particular, garden settings in the vicinity are not to be adversely affected in terms of overshadowing or physical impacts on significant trees; ii) retain the established landscape character of the Heritage Item or HCA including height of the tree canopy and density of boundary landscape plantings or otherwise reinstated them in the new development; iii) include appropriate screen planting on side and rear boundaries."
I understood Council's key concern to be that the proposal did not appropriately respond to the characteristics of the surrounding heritage items and conservation areas, and therefore did not meet the relevant objectives. It did not comply with a number of heritage-related controls. The building was too tall. It did not comply with cl 19F.2.1 because its front setback was not greater than the adjacent heritage item. It did not comply with cl 19F.2.2 because it did not provide an appropriately stepped side boundary setback (increasing from the 8m building height). It did not comply with cl 19F.1.4 because (due to its minimal front setback) it impaired important views to and from the heritage item.

Part 14C of KDCP relating to Pymble Local Centre

A factor of considerable attention in the proceedings were provisions at Part 14C of KDCP. Part 14 of KDCP provides for precinct level controls. Part 14C is concerned with Pymble Local Centre. The objectives at cl 14C.1 are: "1. To create a vibrant local centre with distinctive and memorable character. 2. To enhance the character of Grandview Street as the main local shopping street for Pymble. 3. To provide opportunities for cafes and restaurants to be located on Park Crescent overlooking Robert Pymble Park. 4. To protect and enhance Robert Pymble Park for passive recreation uses. 5. To encourage restaurants, cafes, outdoor dining and offices fronting on to rear lanes to contribute to increased activity and passive surveillance. 6. To provide opportunities for new supermarkets to support and anchor the local centre. 7. To promote ease of circulation and connectivity between the railway station and the local centre."
The controls cited at cl 14C.1.1 are that: "All development within the Pymble local centre is to be designed to support and enhance the planned future character of the centre. This is to be done through the general requirements and Precinct specific requirements as stipulated in this DCP."
Clause 14C.4 provides for building setbacks. Its objectives are: "1. To create cohesive streetscapes. 2.To require building setbacks in appropriate locations to provide opportunities for street tree plantings or footpath widening. 3. To require building setbacks in appropriate locations to allow widening of roads, lanes and streets. 4. To allow for visual and acoustic privacy between the centres and adjoining residential zones."
The applicable setback controls for the site are represented in Figure 1, below. They indicate a front setback control of 2m and a side setback control of 3m applying to the western boundary of the site (shared boundary with the heritage item). Figure 1 - Excerpt from building setbacks plan Pymble Local Centre - (source: Part 14C KDCP Figure 14C.4-1)
The "built form" controls at cl 14C.5 are also relevant. Control 14C.5.1 is as follows: "All development within the Pymble local centre, as outlined in Figure 14C.5-1, is to be designed to support and enhance the planned future character of the centre. This is to be done through the Built Form requirements for each Precinct as stipulated in this DCP."
Figure 14C.5-1 follows directly and an excerpt from it is reproduced at below. The key indicates that green shading along certain street frontages, including that of the site, refers to a "3 storey wall height". The unbroken red line along certain street frontages, including that of the site, is referred to as "Principal active frontage". The orange hatching over the land immediately to the west of the site is referred to as "Heritage affected site". Figure 2 - - Excerpt from Built form plan Pymble Local Centre - (source: Part 14C KDCP Figure 14C.5-1)

Juxtaposing Part 19F and Part 14C of KDCP

When the provisions at Parts 19F and 14C of KDCP are juxtaposed, it can be seen that there is some friction, or competing aims, in play. Part 14C of KDCP focuses on "the planned future character of the centre" and Part 19F is concerned with ensuring new development does not detract from the aim of retaining the integrity of heritage items and conservation areas.
More specifically, the controls can be read to be somewhat at odds with one another, particularly having regard to the side and front setback controls.

Evidence

I will mention first that there was a lay objection expressed by the owners of the listed heritage item (4A Park Crescent) of relevance to the heritage conservation impact issue. Relevant concerns included the side boundary setback and associated visual bulk, risk to existing boundary vegetation through excavation and loss of the ambience enjoyed in the front garden.
Ms Holtham (Council's heritage expert) believes the proposal does not provide for the required transition at its interface with the listed heritage item. A particular point of attention was the north-western corner of the proposed building which was in front of rather than behind the building line of the existing heritage item at 4A. It was put as follows by Ms Holtham (Joint Report Heritage Experts Ex 4 p 15): "- The projection of the new building is blocking and impairing views to the heritage item and its setting in general and from the Conservation Area (see above); - The projection of the new building is blocking and impairing views from the heritage item (see above); - The topography falls to the street, resulting in an increase in visual dominance with reduction in front setback. A nil setback resulting in the most visual dominance. - The projecting corner results in a change in locality dynamic from the heritage item and its curtilage being at the height of the topography and the prominent element in this visual catchment to the proposed development visually dominating the heritage item. - The upper floor can be more readily seen from the north and north-west however the without prejudice upper floor plan and photomontage seek to reduce its visibility."
Mr Phillips (heritage expert for the applicant) indicated he believed the proposal had responded carefully to its setting. There were three main aspects to this: (1) the proposal was seen to only fail the side setback test (12m control at cl 19F.2.3 of KDCP) by a small margin (the existing building at 4A Park Crescent is setback by with the proposal adopting a 3m side building setback to this boundary totalling some 11.5m according to Mr Phillips (Ex 4 p 6)), (2) there was an increased setback for the third floor and above, and (3) there was opportunity for considerable screen landscaping to be introduced along this shared boundary.
In regard to the interface with the Park Estate HCA, Mr Phillips relies on the "extensive street tree planting" which runs along the northern verge of Crescent Avenue, or southern boundary of Robert Pymble Park.
Mr Phillips also relies on the fact of Section 14 of KDCP (Ex 4 p 17) and likens the proposal with existing mixed use buildings along Post Office Lane abutting or near the heritage item.
Ms Holtham believes compliance with the numerical controls at Section 14 does not ensure that the resulting outcome will be sensitive and sympathetic to the heritage item or (HCA)" (Ex 4 p 6). Mr Holtam acknowledges the inconsistency (Ex 4 p 8): "The difficulty with this site is the inconsistency between the 'prevailing' provisions applicable. Although 'heritage affected sites' are identified in Part 14 of KDCP, there are no overarching heritage considerations for development such as the 'aims' of Part 19 numbered i), ii), iii) and iv) ... The site-specific controls recognise that adverse impacts of a future development on the adjoining heritage item need to be ameliorated and that the primary method of achieving this, both from within the property and from the public domain, is through sufficient screen planting. Clause 9(v) of Part 14C.7 specifically outlines the need for 'screen planting to protect the heritage setting of the property and the amenity of the residents." (Emphasis in original)

Consideration

It is true that if development on the site was further setback from the road boundary and had less building massing near the shared boundary with 4A Park Crescent, it would result in a lesser impact on the heritage item occupying 4A, as is sought from Part 19F of KDCP. However, the broader planning intentions for the Pymble local centre, as put in Part 14C of KDCP (see [29] for the local centre objectives) warrant considerable weight, and should be seen as quite purposive and directive in regard to KDCP's stated intentions that future development in the identified Pymble local centre area "support and enhance the planned future character of the area" (cl 14C.1.1 of KDCP). This intended support and enhancement is promulgated through fine-grained controls applying to site. It is a clear intention, if not aspiration, of KDCP that there be an intensification of development and street-level activation of Park Crescent in the site environs as part of a strategy of renewal for the entirety of the local centre, after a period where the centre has "declined" (KDCP Part 14C.7.1(i)): "Grandview Street is planned to remain the central focus of Pymble, supported by the other smaller areas to the west and south. There may be a modest expansion of the retail area north-eastwards towards Park Crescent to create a retail precinct with cafes and restaurants offering outdoor dining with a northerly aspect and views over Robert Pymble Park. Given the unique location it is envisaged the location will attract people from a broad area and provide a renewed focus for the Pymble Centre."
The obvious option of requiring a deeper setback on development adjoining the heritage item is not taken up in the fine-grained controls of Part 14C of KDCP. Instead, and as identified by Ms Holtham, reliance is placed on screen planting "to protect the heritage setting" of 4A Park Crescent (cl 14C.7.9(v) of KDCP). I see the ambition here as to not have development being visually dominant, when viewing the heritage item, say from further along Park Crescent (ie to the north-west of the heritage item) and to also allow minimise the impact of the proposed development on the experience of the heritage item from within 4A.
During the hearing, consideration was given to whether screen planting was proposed and/or could be effected in the available 3m side setback area (to 4A), including having regard to the requirement for a pathway along the western side of the proposed building. There was also a need to recognise the existing vegetation within 4A Park Crescent in the vicinity of the boundary. The advice I received during the hearing was that Council was satisfied that screen planting was viable in the available area. Ultimately a condition was proposed (after discussions between the heritage experts and the applicant's landscape architect) which provided for certain changes to the previously proposed landscaping to allow for the effecting of the intended screen planting (Condition 26).
I am mindful of the aims of Part 19F of KDCP and I do accept the evidence of Ms Holtham that the proposal would adversely affect the setting and views to and from the heritage item, and the Park Estate HCA. However, the proposed building massing (as amended) and landscape screening provide for a satisfactory relationship mindful of the controls as a whole. In regard to these controls, in my view, prevailing weight must go to KDCP's stated ambitions for the Pymble local centre which would, if achieved, draw more people to Park Crescent. Both the heritage item and the Park Estate HCA would continue to contribute to the local setting. An activated Park Crescent, which the proposal can contribute to, can bring opportunity for more people to experience these aspects of local culture.

Internal amenity

Council contended that the rear balconies of some residential units should be deleted. The argument was that due to required full height privacy screens upon these balconies (to ensure neighbour privacy), the amenity within the proposed units would be compromised. Mr Donovan believed the balconies and courtyard should be replaced with windows and put it as follows (Joint Expert Report Town Planning Ex p 10): "Units 1A, 2A and 3B all have north/north east facing balconies that are in excess of the minimum area (12m2) required under the ADG. These balconies will all receive good levels of amenity and provide useable private open spaces for the apartments. The south facing balconies to Units 1A, 2A and 3B are particularly compromised as they are located within 6 metres of the rear boundary, and require screening which will impact the internal amenity (daylight and outlook) of these secondary bedrooms. I am of the view these balconies should be deleted and the clothes lines be relocated to the front balconies of these apartment where they will receive northern sunlight."
Mr Chapman believed these outdoor spaces would add to the amenity of the units, including through provision of a secondary clothes drying area.
There seemed to be no disagreement that the required privacy screens on the upper level balconies (Units 2A and 3B) and ground floor courtyard (Unit 1A) would provide for reasonable protection of the privacy of neighbours. In instances like this where there is no material difference in terms of external impacts (visual privacy in this instance), it seems to me that an applicant should have the opportunity to determine for itself the bedroom design. I favour the applicant's position in regard to this issue.

Condition 3A - Tenure arrangements for 2m setback area along Park Crescent

The plans before the Court show a 2m strip of land along the site's northern boundary with Park Crescent. The plans show both the "existing boundary" and a "proposed boundary", located 2m to the south (ie within the site). The area between the existing and proposed boundary is indicated as "proposed footpath".
The applicant put forward its preferred option that this 2m strip be retained in its ownership and that a restriction as to the use (RAU) of the land, pursuant to s 88E of the Conveyancing Act 1919, be registered on the title of the land in favour of Council. The terms of this RAU would restrict the use of the relevant land to the purposes of a footpath. Council's position was that the 2m setback area be dedicated to Council. A deferred commencement condition would be imposed providing for the applicant to document the offer and for both parties to enter the planning agreement (PA) process in accordance with relevant provisions of the EPA Act (including ss 7.4, 7.5 and 7.7(3)), and Council's Planning Agreement Policy 2019. The applicant made clear that its arguments in regard to preferring the RAU should not be seen as fettering the voluntary "offer" (relevant to s 7.7(3) of the EPA Act) to dedicate the land, if the Court was with the Council's position on merits.
The applicant argued three points in support of the RAU option (ACS pars 46-48): (1) there was no provision for this dedication in a contributions plan, (2) there was only a limited reference to dedication ("confined to a marking in a plan legend with no other words" (applicant's closing submission par 48)), and (3) the administrative procedures involved in the finalisation of a planning agreement otherwise interrupting the orderly and economic development of the site.
On the first point, it is clear that there is no requirement for land dedication of this kind to be included in a contributions plan. Rather, the provisions at ss 7.4-7.10 of the EPA Act (directly in regard to planning agreements) are properly seen as extending the circumstances whereby a planning agreement can be entered into. That is, beyond that which might be available via a reference in a contributions plan (see L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149 at [38]). On the second point, there is a direct reference to KDCP's intention that the 2m setback to Park Crescent be dedicated to Council in both text (text at cl 14C.7.9(i)) and in plan (at Figure 14C.7-4). There was insufficient evidence provided as to why an RAU arrangement to bring about what the intended public use of private land, and whatever might go with that, might provide for more orderly and economic land conversion overall. Dedication of the land is the preferred position on merits. Noting the applicant's stated position in regard to the offer it makes in regard to the dedication of the 2m setback area as a widened footpath area, pertinent to s 7.7(3)(a) of the EPA Act, Council's proposed deferred commencement condition is accepted.

Architectural plans

There was some further disagreement in regard to final architectural plans. Council sought to require a solid balustrade to the top level of the building. Council submitted this was "consistent with Part 14C of the Ku-ring-gai Development Control Plan 2015 applicable for a three storey street wall". It can be expected that "street walls" for residential and mixed use buildings would need to account for balustrades. However, in this instance the extent of balustrade at the top level of the building prejudices KDCP's street-wall ambition. Council's position is accepted. Council also sought that the north facing windows to the study, bedroom 3 and master bedroom for Unit 1A be fitted with external louvred screens, "designed to enable access to sunlight while maintaining privacy from fire egress path". I am satisfied with the plans provisions for privacy screening for Unit 1A.

Lay objections

I asked the planning experts for advice in regard to other lay submissions made. Assisted by this advice I am satisfied that the concerns raised are satisfactorily addressed. In regard to visual privacy, I note the proposed privacy screening would accommodate reasonable concerns. I also note the intended screen planting along the common boundary with 4A Park Crescent.
In regard to construction stage impacts, I note that excavation would be setback 3m from 4A Park Crescent. I note the requirement for a dilapidation survey and report for 4A Park Crescent (Condition 12). More generally, I also note the prescribed condition (Environmental Planning and Assessment Regulation 2000 cl 74 (EPA Regulation)) requiring that persons benefitting from the consent to protect and support the building, structure or work on adjoining land from possible damage from relevant excavation. There are also conditions relating to managing construction activities (eg Conditions 23, 59, 61) and in relation to tree protection (Conditions 16-22). While generally not an ideal time for neighbours, I am satisfied that reasonable arrangements are in place to protect neighbours during construction.
In regard to overshadowing, the architectural plan set (Ex C Drawing DA 020 Issue 4) indicates the proposal would overshadow 99 Grandview and 95-97 Grandview during mid-winter at 9am. However, by noon there is no affect at all on these properties. The planning experts were satisfied no unreasonable impact was caused by the proposal and I accept this position.
Certain statutory provisions are also raised. I note that the provisions of cl 6.6 of KLEP apply to multi dwelling housing and residential flat buildings, rather than shop top housing as proposed here. I also note that in regard to cl 6.7 of KLEP which is concerned with active street frontages in certain business zones including the applicable B2 Local Centre zone, I am satisfied that the ground floor of the building: 1. Would not be used for the purposes of residential accommodation or a car park or to provide ancillary car parking spaces - the particulars are obvious from the plans (see Ex C Sheet DA100), noting that I accept the uncontested advice of Mr Chapman that the two disabled parking spaces are in considerable cut (see Ex C Sheets DA 151) and are better considered as part of the basement than the ground floor of the proposed building. 2. Would consist of design elements that encourage interaction and flow between the inside of the building and the external public areas of the building - as indicated by considerable openings from future business tenancies to the footpath. 3. Would be used for purposes that encourage the movement and flow of people between the internal and the external public areas of the building - given the indication of floor space for business premises, and the applicable controls under KLEP.

Building height contravention

The proposal contravenes the maximum building height standard applying to the site of 11.5m under cl 4.3 of KLEP. The contravention is limited to a partial breach involving the north-east corner of the roof and part of the upper north-east corner of the living area of Unit 3B. The maximum contravention is some 920mm.
Chapman Planning Pty Ltd prepared a written request under cl 4.6 of KLEP, (Ex 3 Appendix E), seeking to justify the contravention.

Whether compliance is unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of KLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'). The written request uses the first "Wehbe way", seeking to show how, notwithstanding the contravention, the development achieves the objectives of KLEP's height of building standard. The objectives of cl 4.3 are as follows. (a) to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres, (b) to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity, (c) to enable development with a built form that is compatible with the size of the land to be developed.
In regard to the first objective, the written request notes that the proposal presents a three-storey wall height with recessed upper level as envisioned by the planning controls for the Pymble local centre. The breaching element does not increase the density but rather is a consequence of retaining the street wall in the face of the sloping topography. I accept that for these reasons the first objective is achieved. The written request submits that because the proposal has been designed in sympathy with adjoining and nearby development and has been demonstrated to not provide unreasonable amenity impacts, the scale transition is appropriate and the second objective is achieved. According to the written request, the built form is compatible with the size of the site, as demonstrated by its achievement of the three storey street wall height, compliance with the relevant floor space ratio controls and the lack of amenity impacts, and therefore the third objective is achieved. I accept that for these reasons the second and third objectives are achieved. These arguments satisfy me that the objectives of the height of buildings standard are achieved notwithstanding the contravention, and therefore, in accordance with the first Wehbe way, strict compliance with the numerical standard is unreasonable and unnecessary in the circumstances of the case. The written request has adequately addressed the matters it was required to in regard to cl 4.6(3)(a). Whether there are sufficient environmental planning grounds
A series of planning grounds were raised in the written request to justify the contravention. Sufficient for me in this instance is the written request's arguments that: (1) the contravention occurs as a consequence of the topographical cross fall which affects the site, (2) the contravention only affects a small portion of the proposed building, (3) the contravention allows a three storey wall height in accordance with the applicable planning controls for Pymble local centre, and (4) the contravention will not be readily discernible given the recessing of the upper level. The written request has adequately addressed the matters it was required to in regard to cl 4.6(3)(b).
Together, the above findings mean Ex M has adequately addressed the matters required to be demonstrated by cl 4.6(3) of KLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the building height contravention. Particular public interest consideration
I now turn to the test at cl 4.6(4)(a)(ii) of KLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 zone.
I agree with and rely on the written request's demonstration that the proposed development is consistent with the objectives of the building height standard as considered above.
The B2 zone objectives in KLEP are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To provide for residential housing close to public transport, services and employment opportunities. • To encourage mixed use buildings that effectively integrate suitable commercial, permitted residential development and other development.
The proposal is: (1) consistent with the first zone objective in that on the ground floor it would provide for business uses which can serve the needs of people who live in, work in and visit the local area, (2) consistent with the second zone objective again in that it would promote employment opportunities on the site through provision of spaces for business purposes, (3) consistent with the third objective in that it provides for additional accommodation close to public transport services in particular Pymble Station, and (4) consistent with the fourth zone objective given it provides for a mixture of residential and business uses.
Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 Local Centre zone of KLEP. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of KLEP are met in regard to the building height contravention. Conclusion - building height contravention
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of KLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
With the above findings, the states of satisfaction required by cl 4.6 of KLEP have been reached and there is, therefore, power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Other jurisdictional consideration

In regard to SEPP 65 and cl 29 of the EPA Regulation, the applicant has provided the required statement by the proposal's qualified designer addressing how the design quality related principles and objectives of Pts 3 and 4 of the Apartment Design Guide (ADG) have been achieved. I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the relevant ADG objectives.

Conclusion

The proposal, as now before the Court, warrants condition approval in accordance with the above finding.
The Court notes that: 1. Ku ring gai Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA 0025/21 as per the plans and documents referenced in Condition 1 to Annexure A, and the Court allows the applicant to file the amended application for development consent. 2. The amended development application was lodged on the NSW Planning Portal on 11 February 2022.
The Court orders that: 1. The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amended development application as agreed or assessed. 2. The applicant's amended written request under cl 4.6 of Ku ring Gai Local Environmental Plan 2015 prepared by Chapman Planning dated February 2022 that seeks to justify the contravention of the development standard for the height of buildings under cl 4.3 of the plan is upheld. 3. The appeal is upheld. 4. Development Application No DA0025/21 for shop top housing development consisting of two commercial tenancies, eight residential apartments, basement car parking and associated works at 2-4 Park Crescent Pymble is determined by grant of consent, subject to the conditions in Annexure A. 5. The exhibits are returned with the exception of the following which are retained by the Court: 1, B, C and F.

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: 12 April 2022

(2007) 156 LGERA 446

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Judgment (22 paragraphs)

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Cases Cited (3)