Parker Logan Property Pty Ltd v Inner West Council

The site and the locality

1. The site on which the development is proposed is located at 3-7 Crystal Street, on the eastern side of Crystal Street, between Parramatta Road to the north and Margaret Street to the south. It has an area of 1,118m2 and comprises one lot legally defined as Lot 1 in Deposited Plan 63868.
2. As shown in Figure 1, the site is irregular in shape. It has a primary frontage of approximately 14.3m to Crystal Street, a variable depth of between 22.82m and 31.05m along the northern side boundary, a variable depth of between 50m and 15.645m on the southern side boundary and a rear boundary of 26.705m. The site has a fall from north to south of around 1m.
3. The site is occupied by a 2 storey brick building with a pitched and tiled roof currently used for commercial purposes, with a detached brick garage with office above at the rear.
4. The site is burdened by a 3.66m wide right of way along part of its northern side, which provides vehicular access to the rear of the adjoining properties fronting Parramatta Road. A portion of the site to the east is identified as being subject to future acquisition by the Council.
5. The properties adjoining the site to the north and south, at 1 and 9 Crystal Street respectively, contain 2 storey mixed use buildings. To the north east the site is adjoined by 2 and 3 storey mixed use developments that front Parramatta Road. A Council car park accessed from Charles Street is located immediately to the east of the site. The proposed acquisition of the parcel in the eastern part of the site is for the purpose of extending that car park.
6. The area along Parramatta Road, including both sides of Parramatta Road, and to the north of the site is a heritage conservation area. The parties agree that the existing built form that is characteristic of the area, which comprises two and three storey buildings, is not reflective of the controls, which allow for greater FSR and height. To that end, development consent has been granted for 5 storey mixed use developments to be carried out at two of the adjacent sites to the north fronting Parramatta Road, at 442 Parramatta Road and 446-448 Parramatta Road.

The design of the proposal

1. The proposal comprises a ground floor commercial/retail tenancy, four ground floor serviced apartments and a 56 room boarding house on the floors above, including one manager's room. Basement car parking is provided, with 14 car parking spaces, 11 motorcycle spaces and storage facilities for 12 bicycles. Vehicular access to the basement is through a car lift, with a waiting bay located 7 metres from the front boundary of the site.
2. The built form is cantilevered over the right of way and provides headroom clearance of 3500mm, with a driveway width of 6.1m at the entrance and along most of the length of the right of way. There is no built form or other work proposed on the acquisition area.
3. The building has been designed as a modulated 4 and 5 storey stepped building form addressing the Crystal Street frontage, with balconies facing the Crystal Street frontage and north to the interface with the properties along Parramatta Road. A photomontage of the presentation to Crystal Street is at Figure 2.

The planning controls

1. The site is zoned B2 Local Centre under the MLEP 2011. The objectives of the zone, which are required to be considered in determining an application for development consent, 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 housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area. • To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street-fronts. • To constrain parking and reduce car use."
2. Boarding houses, commercial premises and visitor accommodation are all permissible within the zone. For boarding houses in the B2 zone, cl 6.15 of the MLEP 2011 precludes any part of the boarding house from being located on the ground floor. It provides, at (3): "(3) Development consent must not be granted to development for the purpose of a boarding house on land to which this clause applies if any part of the boarding house (excluding access, car parking and waste storage) is located at street level"
3. The eastern portion of the site is identified on the Land Reservation Acquisition Map as B2 Carpark ("acquisition area"). Despite the identification on the map, cl 5.1 of the MLEP 2011, which identifies the acquisition authority for areas identified in the Land Reservation Acquisition Map, does not list B2 Carpark as one of the types of land shown on the map. Whilst the acquisition area is zoned B2 Local Centre, there are no FSR or height development standards for the acquisition area. Additionally, cl 5.1 of the MLEP 2011 (although at present not applicable to the acquisition area as they owner-initiated acquisition provisions do not apply) provides at (3) that: "(3) Development on land acquired by an authority of the State under the owner-initiated acquisition provisions may, before it is used for the purpose for which it is reserved, be carried out, with development consent, for any purpose."
4. For the remainder of the site (excluding the acquisition area), cl 4.3 of the MLEP 2011 establishes a 14m building height development standard in accordance with the Height of Buildings Map, and cl 4.4 establishes a maximum floor space ratio of 1.5:1 in accordance with the Floor Space Ratio map.
5. There is a dispute between the parties as to how the FSR should be calculated. Clause 4.5 establishes how the FSR is calculated, and provides as follows: "4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). …"
6. A definition of site area is also provided in the Dictionary to the MLEP 2011, and provides: "site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan."
7. In addition, since the application was lodged, Amendment No 4 to the MLEP 2011 has been exhibited. I am required pursuant to s 4.15(1)(a)(ii) of the EPA Act to consider this proposed instrument. The proposed amendment includes, inter alia:

• Changing the zoning of the acquisition area to SP2 Carpark, upon which the development would be prohibited.
• Adding a sub-clause to the provision concerning the calculation of FSR, cl 4.4(2C) as follows: "(2C) Despite subclause (2) for the purposes of determining the floor space ratio on land reserved Local Road (SP2) on the Land Reservation Acquisition Map, the land reserved Local Road (SP2) shall be included as site area where the reserved land is to be dedicated to Council as "Proposed Road"."
• Adding a new cl 5.1A which limits development on certain land intended to be acquired for a public purpose. The new clause would operate to preclude development consent being granted to development on the acquisition area, other than development for the purpose of a car park.

1. The State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") applies. At cl 29 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides: "29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted - the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area - at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area - at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2)."

Evidence

1. Expert opinion evidence was given by Mr Greg Boston, town planner, and Mr David Wolski, urban design consultant, both of whom were engaged by Parker Logan. Expert opinion evidence was also given by Mr Thomas Mithen, a town planner engaged by the Council.
2. The parties relied on the joint expert report of Mr Joseph Bertacco and Mr Ramy Selim, traffic engineers, which resulted in the lodging of the amended plans that resolved the Council's earlier contentions concerning vehicular access and garbage collection.
3. A number of residents attended the site view and made submissions regarding the proposal, which can be summarised as follows:

• Concerns about possible extended length of time between demolition and construction of the new building, as well as about continual loss of older style buildings.
• There will be increased traffic along the right of way to service the development and the approved development along Parramatta Road.
• There is a lack of parking in the area, and this will be exacerbated by the development.
• An increased number of bins placed on Crystal Street will block the pavement and impede visibility on Crystal Street.

1. Mr Liganaris, from the adjacent business to the north, gave evidence regarding the proposal blocking natural light to one of the windows of level 1 of his premises, and blocking access to pipes located on the southern side of his building.

Breach of the FSR and height development standard - does cl 4.6 apply?

1. As set out above, the proposal does not comply with the applicable FSR or height development standards applicable under the MLEP 2011.
2. Clause 29(1) and (2) of the SEPP ARH set out a number of "do not refuse" criteria that preclude a consent authority from refusing the application on certain grounds if those criteria are met. In accordance with cl 29(1)(b), the application cannot be refused on the grounds of density or scale if the density and scale of the buildings when expressed as a FSR are not more than the existing FSR for any form of development permitted on the land. In accordance with cl 29(2)(a), the application cannot be refused on the ground of building height if the height of all proposed buildings is not more than the maximum building height permitted. Notwithstanding this, cl 29(4) of the SEPP ARH allows the consent authority to grant development consent "whether or not the development complies with the standards set out in subclause (1) or (2)".

Parker Logan submits that cl 4.6 does not apply

1. Parker Logan submits that the broad, discretionary power in cl 29(4) is inconsistent with the constrained power in cl 4.6 of the MLEP 2011, which requires that where there is a contravention of a development standard, an applicant must provide a written request and the consent authority must be satisfied of certain matters before consent can be granted. Parker Logan says therefore that, consistent with cl 8 of the SEPP ARH, the broad discretionary power in cl 29(4) prevails over cl 4.6 of the MLEP 2011. It therefore submits that no cl 4.6 request is required to be made and the Court need not be satisfied of all the matters required by cl 4.6.
2. In support of this submission, Parker Logan relies on previous decisions of the Court. In Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026, Brown C was of the view that he could rely on cl 29(4) of the SEPP ARH to grant consent notwithstanding a breach of the height development standard, and that cl 4.6 was not required to support the variation. He also stated that if he is incorrect in relying on cl 29(4) of the SEPP ARH, he was satisfied that the cl 4.6 written request supports the variation. In 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13, Moore J considered the approach taken by Brown C in Panarea Investments v Manly Council and, consistent with that decision, stated that the strict regime in cl 4.6 did not apply to fetter the discretion in cl 29(4). Specifically, Moore J said at [48]: "I do not consider that a strict cl 4.6-like approach is mandated because there is nothing in the terms of this provision of the SEPP that purports to impose fetters on the exercise of the discretion given by it in the fashion that arises from the very structured testing regime that flows from cl 4.6 itself. The absence of such a regime, in my view, means that it is inappropriate to infer that such a strict regime would be required to be applied."

The Council submits that cl 4.6 must be applied

1. The Council, on the other hand, submits that cl 4.6 of the MLEP 2011 applies. Firstly, it points to the development being for the purpose of a mixed use development and that the ground floor uses do not relate to the SEPP ARH. The Council therefore submits that it would be wrong at law to fail to apply cl 4.6 when dealing with departures from development standards in this context.
2. Secondly, the Council submits that cl 29(4) is not inconsistent with cl 4.6. It submits that cl 29(4) simply makes it clear that the consent authority has the power to approve a boarding house that does not comply with a standard referred to in cl 29, but that it does not relax the requirements that the consent authority must consider in determining whether consent should be granted if there is a non-compliance with a development standard. The Council submits that no wider meaning should be given to cl 29(4), and to do so would be to ignore the aim of the SEPP ARH "to provide a consistent planning regime for the provision of affordable housing."
3. The Council also says that the approaches used by Moore AJ and Brown C in the cases relied upon by Parker Logan are merely comments made in obiter, as the conclusions reached in each decision relied on multiple pathways, including consideration of cl 4.6 in the event that their view of cl 29(4) was incorrect.
4. The Council submits alternatively, that if they are not comments made in obiter, then they are wrong at law and follow from an incorrect reading of cl 29(4).

There is no inconsistency and cl 4.6 applies to the height and FSR development standards

1. The difficulty I have in considering and applying the decisions of the Court relied upon by the Council is that neither Brown C nor Moore J outline their view of the construction of cl 29(4) in its context and how, in light of that construction, they reached the conclusion that an inconsistency arises with cl 4.6. In undertaking that task of statutory construction, for the following reasons I reach a different view.
2. Clause 29(4) operates in the specific context of cl 29. Clause 29(1) and (2) set out minimum criteria, which if met, prevents a refusal of consent based on the underlying purpose of the criteria. They are "must not refuse" grounds that might have otherwise been used by consent authorities to refuse the application, but do not constitute development standards. They operate only one way, precluding a consent authority from refusing consent if specified minimum standards are met.
3. As cl 29(1) and (2) operate only one way, prohibiting the refusal of consent if those minimums are met, they are silent on what occurs if the minimums are not met. As such, a question arises as to whether, if the minimums are not meant, this should result in the refusal of the application. Clause 29(4) addresses this question, making it clear that a consent authority may grant consent "whether or not the development complies with the standards set out in subclause (1) or (2)". That is the extent of the operation of cl 29(4).
4. That being the extent of the operation of cl 29(4), the development standards in the MLEP 2011 continue to apply to the development (notwithstanding that it so happens that some of the criteria in cl 29(1) and (2) are taken from the development standards). There is nothing in cl 29(4) that operates to create an inconsistency with the development standards in the MLEP 2011.
5. As such, the only way the consent authority, or the Court exercising the functions of the consent authority, can grant consent to development that contravenes a development standard is through cl 4.6 of the MLEP 2011. There is nothing in cl 29(4) of the SEPP ARH that is inconsistent with the terms of cl 4.6. That is:

• Clause 29(4) of the SEPP ARH makes it clear that the discretion to grant consent remains despite a non-compliance with (1) or (2), and;
• Clause 4.6 of the MLEP 2011 makes it clear that consent cannot be granted if there is a breach of a development standard in the MLEP 2011 unless certain pre-conditions are met.

1. For cl 8 of the SEPP ARH to operate such that the terms of cl 29(4) prevail over the terms of cl 4.6, there must be an inconsistency between the two provisions. In the words of Kirby P in the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324, "there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument." Young JA stated it differently in Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285 at [84], "if there is a situation where there is a "can do" under the SEPP-SL and a "can't do" under the local environmental plan, then the SEPP-SL prevails." In considering the meaning of "inconsistency", and the guidance provided by the authorities on what that means, I do not accept that the terms of cl 29(4) and cl 4.6 are inconsistent, and nor do I accept that the way that they operate creates incompatibility, contrariety or opposition. Therefore, where there is a breach of a development standard, cl 4.6 of the MLEP 2011 applies and a cl 4.6 request is required.
2. I appreciate that this is a different view to that reflected in the comments made by Moore J in 193 Liverpool Road Pty Ltd v Inner West Council and Brown C in Panarea Investments v Manly Council.
3. Whilst I am not bound by the previous decisions of the Court (see Pittwater Council v Moore Development Group Pty Ltd & Anor [2004] NSWCA 278 and the analysis of Dixon C in Mac Services Group v Mid-Western Regional Council [2014] NSWLEC 1072 at [52]-[68]), as a matter of judicial comity a previous judgment on the same point ought to be followed unless it is plainly wrong.
4. However, I am not the first to find that an inconsistency is not established between cl 4.6 and cl 29(4) with respect to a development standard established by the MLEP 2011: see Tuor C in Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000 at [49].
5. Further, the Court in both 193 Liverpool Road Pty Ltd v Inner West Council and Panarea Investments v Manly Council continued on to consider the cl 4.6 request, which I consider to be a proper approach to considering whether consent should be granted notwithstanding a breach of the development standard. Therefore, even following these prior decisions would lead to the same consequence of considering the cl 4.6 requests, notwithstanding my contrary view that no inconsistency arises between cl 4.6 of the MLEP 2011 and cl 29(4) of the SEPP ARH.

The dispute about the calculation of the FSR

1. As set out in cl 4.4 of the MLEP 2011, the FSR is the ratio "of the gross floor area of all buildings within the site to the site area." In determining the site area, cl 4.4(3)(a) says that if the proposed development is to be carried out on only one lot, the site area is taken to be the area of that lot.
2. Clause 4.4(4) sets out the only exclusions from the calculation of the site area to be land on which the proposed development is prohibited, or community land or a public place.
3. As such, Parker Logan submits that as boarding houses are permissible in the B2 Local Centre zone and as the entire lot is zoned B2 Local Centre, the entire lot is to be used as the site area for the purpose of calculating the FSR. If the acquisition area is included in the site area used to calculate the FSR, the FSR is 1.528:1. This is a non-compliance of 32m2 or 1.9%.
4. The Council says that the FSR should be derived by excluding the acquisition area from the site area used to calculate the FSR. The result would be an FSR of 2.225:1, representing a non-compliance of 560m2 or 48.6%. It sets out four grounds upon which it says that the acquisition area should be so excluded. The first ground is that the acquisition area does not have a FSR control, and it is therefore inappropriate to include its area in the site area calculation for the FSR. The second ground is that the acquisition area is clearly excluded from the development application, and no development is proposed on it. The Council submits that this, coupled with the definition of site area in the Dictionary to the MLEP 2011 which refers to the meaning of site area as "the area of any land on which development is or is to be carried out" and states that the land "may include the whole or part of one lot…", means that where the proposed development is being carried out on a lesser area, the site area used for the FSR calculation should only include part of the lot.
5. The third ground that the Council relies upon to support its view that the acquisition area should be excluded from the site area is that it says it is "double dipping" to utilise the rear portion as site area to increase the bulk of the front portion of the development, but not offer the proposed acquisition area by way of dedication. The fourth ground is that the amendment to the MLEP 2011 rezones the acquisition area to SP2 Carpark, thus prohibiting the development in that zone and removing it from the site area in accordance with cl 4.4(4) of the MLEP 2011. The Council relies on the evidence of Mr Mithen and says that the proposed amendment should be given considerable weight. Mr Mithen's evidence is that: "• The gateway determination included written authorisation to Council to exercise delegation to make the plan (refer to attachment) • the principle of including land reserved for acquisition purposes in site area where it is dedicated to Council was accepted at the gateway process by the Department • the draft LEP was publicly exhibited for 6 weeks from 3rd April to 15th May 2018 • 3000 letters were sent to property owners during the public exhibition period including the subject site and to the best of my knowledge no submissions were received in relation to the amendment to Clause 4.4 Floor Space Ratio • a Section 149 Certificate dated 8 August 2016 was sent to the property owner which identifies the site as reserved for land acquisition by a public authority (see attached) • the land was identified as reserved for Special Uses under former MLEP 2001 and has been included as land for future acquisition by Council since the gazettal of MLEP 2011."

The correct approach to calculating the FSR of the proposal

1. On either calculation the proposal does not comply with the FSR control of 1.5:1. Further, nothing about the bulk and scale of the proposal changes in determining which of the two calculations is correct. However, the margin by which there is a breach of the FSR control may be relevant to determining whether development consent should be granted notwithstanding the breach, although the analysis of the bulk, scale and density of the proposal will not change by virtue of the different margins.
2. Firstly, I am of the view that the provisions in cl 4.5 that set out how site area and FSR are calculated take precedence over the definition contained in the Dictionary. This is because cl 4.5 specifically contemplates how to calculate the FSR, and provides clearly what should be incorporated in calculating the site area. There is no doubt that arises from cl 4.5 that requires recourse to the Dictionary.
3. Secondly, neither cl 4.4 nor 4.5 contemplates using part of the site to calculate the site area.
4. Thirdly, assertions of "double-dipping" because of the potential benefit of a future acquisition are irrelevant to the question of how to apply the provisions of the MLEP 2011 to the site.
5. Fourthly, there is insufficient certainty in how the amended LEP will apply to the calculation of the FSR. That lack of certainty arises in two ways. First, the draft amendment to cl 4.5 that enables land marked for acquisition to be included in the site area does not include land of the zoning SP2 Carpark, but refers only to land of the zoning SP2 Local Road. Second, it is unclear whether there will be a prohibition on boarding house uses on that land given the inconsistency between the current cl 5.1 of the MLEP 2011, which allows "Development on land acquired by an authority of the State under the owner-initiated acquisition provisions" to be carried out with development consent "for any purpose" before it is used for the purpose for which it is reserved, and the draft cl 5.1A, which prohibits development for all purposes except for the specified purpose for which it is reserved. Whilst the draft amendment to the MLEP 2011 is a relevant consideration in the assessment of the proposal pursuant to s 4.15 of the EPA Act, the lack of certainty means that I am unable to give it determinative weight when it comes to calculating the FSR and I must therefore apply the law as it operates at present. The FSR of the proposal is therefore 1.528:1. This is a non-compliance of 32m2 or 1.9%.

The clause 4.6 request

1. For there to be power to grant development consent pursuant to cl 4.6 of the MLEP 2011 for a development that contravenes a development standard, I must be satisfied that:

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),
• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), and
• The written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

1. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent with the objectives of the zone and of the standard, then it is in the public interest. I also note that nothing in cl 4.6 requires the consistency with the objectives to be established in or by the written request.
2. The objectives of the FSR development standard are: "(a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, (c) to minimise adverse environmental impacts on adjoining properties and the public domain."
3. The cl 4.6 request concerning the breach of the FSR development standard sets out the reasons as to why consent should be granted notwithstanding the breach, which can be summarised as follows:

• The extent of non-compliance is 35m2 or 2% which is appropriately described as both quantitatively and qualitatively minor. If strict compliance is required, it could be resolved by way of a condition of consent.
• The proposed floor space has been distributed across the site in a highly articulated and modulated 4 and 5 storey stepped building form which appropriately addresses the Crystal Street frontage and the interfaces to properties fronting Parramatta Road and to the public carpark at the rear of the site.
• The form and massing of the building are consistent with the desired future character of the immediate area as reflected by the recently approved immediately adjoining, 5 storey mixed use buildings at 442 and 446-448 Parramatta Road. The proposed development will sit below the height of these approved buildings which, coupled with the spatial separation afforded to these properties, will provide an appropriate transitional building height between the development fronting Parramatta Road and the public car parking area to the rear of the site.
• The form and massing of the development, as reflected by floor space, will not give rise to any unacceptable impacts in terms of view loss, overshadowing, privacy or visual bulk with no overshadowing to residential zoned land.
• The contextually responsive development is consistent with the zone objectives and the objectives of the FSR development standard. For these reasons, compliance with the standard is unreasonable and/or unnecessary.
• The topography of the land, the exceptional design quality and amenity of the building and the sites desired future built form context, as established by recent approvals along Parramatta Road, are all environmental planning grounds that justify a departure from the FSR development standard.

1. The Council submits that the cl 4.6 request does not set out sufficient environmental planning grounds to justify the departure from the requirements of the FSR development standard, and that the paucity of adverse impacts is not sufficient to warrant the departure. Further, the Council submits that the proposal is inconsistent with the objectives of the FSR control and that Parker Logan has not demonstrated that compliance is unreasonable or that a better outcome is achieved by the proposal breaching the standard.
2. The Council relies on the evidence of Mr Mithen, which can be summarised as follows:

• It is inappropriate to include the acquisition area in the site area in order to maximise the FSR in the proposal, as that results in "double dipping" that is contrary to the public interest.
• That is, Parker Logan should not get the benefit of both allowing it to be included in the site area for the purpose of the FSR calculation and having it the subject of a future acquisition. The better outcome would be for the acquisition area to be dedicated to the Council, consistent with the terms of the draft amendment to the MLEP 2011.
• The draft planning instrument rezones the acquisition area, and therefore this should be taken into account in considering the breach of the FSR development standard.
• The breach of the FSR development standard is not adequately justified as the development breaches the height control and provides substandard internal amenity, and is considered an overdevelopment of a highly constrained site.

1. Mr Mithen's evidence was that if the acquisition area was dedicated to the Council as a condition of development consent, he would have no issue with the breach of the FSR development standard.

Whether consent should be granted notwithstanding the breach of the FSR standard

1. I am satisfied that the cl 4.6 request should be allowed, and that there is therefore power to grant consent pursuant to cl 4.6(2) even though the development would contravene the FSR development standard.
2. Firstly, I accept that the proposal is consistent with the zone objectives, which the Council does not dispute. It provides a form of affordable housing as well as non-residential uses "of a type and scale commensurate with the accessibility and function of the centre or area".
3. Secondly, I accept that it is consistent with the objectives of the FSR development standard as it is of a density and bulk that reflects existing approvals for five storey mixed use development adjacent to the site and fronting Parramatta Road, which approvals form part of the desired future character for the area.
4. The Council's concern that there is "double-dipping" because the acquisition area is not being dedicated to the Council and may be the subject of future acquisition are not relevant to the assessment of the bulk, scale and density of the proposal in its current context. Whilst the fact that the acquisition area may not be part of the site in the future is relevant to that assessment, whether or not it is "double-dipping" is of no such relevance. Even in taking into account the acquisition area, I consider that the building has a bulk and scale, and reflects a density, commensurate with what has already been approved and therefore with the desired future character as expressed in those consents. The setback of the upper storeys is also consistent with the objectives of the MDCP 2011 concerning massing at Part 5.1.3.3, which at O6 are to "ensure the massing of any permitted fourth and fifth storeys are setback to be subservient to the street building frontage." It is telling that Mr Mithen's evidence was that it would be an acceptable proposal if the acquisition area was dedicated to the Council, as this supports there being no issue with respect to the actual bulk and scale of the proposal per se.
5. Further, consistent with the objectives of the FSR development standard, there are no identified adverse environmental impacts on adjoining properties and on the public domain. I deal with the issue concerning the internal amenity of the boarding house separately below.
6. Thirdly, I am satisfied that the request establishes sufficient environmental planning grounds to justify the departure from the standard. These grounds are the established desired future built form context through the recent approvals along Parramatta Road, and the responsiveness of the proposal to that context.
7. Fourthly, for the same reasons, I accept that the request establishes that it is unreasonable to require compliance with the FSR standard where the proposal is responsive to the context, in which buildings of similar bulk and scale (with a larger FSR) have been approved adjacent to the site (and where the same FSR standard applies to those adjacent properties). Similarly, I accept that the request establishes that it is unnecessary to require compliance in circumstances where the proposal meets the objectives of the FSR standard and where the degree of the non-compliance is agreed by the experts to be minor.
8. For these reasons, with respect to the FSR I am satisfied of the matters required by cl 4.6(4) (the Secretary's concurrence being assumed), and that therefore the power available under cl 4.6(2) can be exercised.

Height

1. Clause 4.3 of the MLEP 2011 establishes a 14m building height development standard in accordance with the Height of Buildings Map, whereas the proposed development has a maximum building height of 14.61m at its north western corner, which is the corner of the proposal that sits above the entrance to the right of way.
2. The objectives of the height of buildings development standard are as follows: "(a) to establish the maximum height of buildings, (b) to ensure building height is consistent with the desired future character of an area, (c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity."

The clause 4.6 request

1. The cl 4.6 request outlines the following reasons why the departure from the standard is warranted:

• The extent of non-compliance is both quantitatively and qualitatively minor and attributable to the topography of the site,
• Site analysis identified a number of site specific constraints and opportunities, the majority of which relate to the proximity, orientation and height of adjoining development including the 5 storey developments approved at 442 and 446- 448 Parramatta Road. The building form currently proposed is therefore site specific.
• The development presents as a 3 storey building podium to Crystal Street with recessive upper levels.
• The actual building height is consistent with the desired future character of the immediate area as reflected by the recently approved, and immediately adjoining developments at 442 and 446- 448 Parramatta Road. The proposed development will sit down below the height of the approved buildings.
• The area of building height non-compliance will not result in any unacceptable impacts in terms of view loss, overshadowing, privacy or visual bulk.
• The contextually responsive development is consistent with the zone objectives and the objectives of the height development standard. For these reasons, compliance with the standard is unreasonable and/or unnecessary.
• The topography of the land, the exceptional design quality and amenity of the building and the sites desired future built form context, as established by recent approvals along Parramatta Road, are all environmental planning grounds that justify a departure from the height development standard.

1. Mr Mithen was unable to articulate anything about the proposed height of the development that was of concern. Whilst he agreed that the non-compliance was minor, his view was that the height would have to be raised for the lift overrun and to accommodate an increased floor to ceiling height to provide adequate internal amenity. It was this raised height that Mr Mithen considered inappropriate. However, Parker Logan is proposing a lift that does not require a lift overrun and will accept a condition that precludes a lift overrun being installed on top of the building. I deal with the issue of internal amenity separately below, and the cl 4.6 request is dealt with in the context of the height of 14.61m as proposed.

Whether consent should be granted notwithstanding the breach of the height standard

1. Curiously, the request did not actually set out the heights of the approved adjacent developments in order to establish that the height of the proposal is commensurate with what has already been approved. Nor did the request outline that another environmental planning ground to justify the departure from the height control was the need to preserve the right of way and to allow for additional head room at the ground level for vehicular access to the right of way. The breach of the height standard occurs in the section of the building above this right of way. This lack of specific details (and the inclusion of broad general statements) is not helpful in establishing the matters required by cl 4.6(3), particularly in circumstances where the requisite satisfaction in cl 4.6(4)(a)(i) must be drawn from the request itself.
2. Nevertheless, for the following reasons I am satisfied that the cl 4.6 request should be allowed, and that there is therefore power to grant consent pursuant to cl 4.6(2) as a result of my satisfaction of the matters in cl 4.6(4). Firstly, as set out above, the proposal is consistent with the objectives of the zone.
3. Secondly, the proposed development is consistent with the objectives of the height control. It is of a height that is consistent with the desired future character expressed through the consents granted on the adjacent properties fronting Parramatta Road. The development consent for 442 Parramatta Road is for a building of 19.4m in height, and a maximum RL of around 47m. The evidence is also that the development consent for 446-448 Parramatta Road is for a building with a similar height and maximum RL. The present application is slightly lower than this, with a RL of 45.42m and height of 14.61m, which respects that character as approved but provides an appropriate transition in built form to the car park area and to the existing buildings to the south. Similarly, the proposal is consistent in design with the approved development, being a five storey building commensurate with the five storey buildings approved at 442 and 446-448 Parramatta Road. Consistent with the objective to ensure that buildings and public areas continue to received satisfactory exposure to the sky and sunlight, I accept that there is no additional impact caused by the breach of the height standard and that the setback of the building from the northern boundary and the absence of built form on the acquisition area allows the public areas and the surrounding buildings to continue to receive "satisfactory exposure to the sky and sunlight" in accordance with the objective of the height development standard.
4. Thirdly, the request adequately establishes that there are sufficient environmental planning grounds to justify the departure, including the topography of the land and achieving consistency with the existing approvals.
5. Fourthly, the request establishes that compliance with the height control is unnecessary where the objectives of the height control are met through the proposal, and unreasonable given that it responds to the site constraints and the recent approvals.

Amenity of boarding rooms

1. Part 4.3.3.5 of the MDCP 2011, at C13, requires a minimum ceiling height for boarding rooms of 2700mm. The objective of this and other controls relating to boarding rooms is at Part 4.3.3.5 O6, which is to ensure that "Boarding house rooms are adequate in size, configuration and facilities provided to accommodate residents' needs and provide a reasonable level of privacy and comfort." The proposal has a 2400mm floor to ceiling height for the boarding rooms.
2. The Council contends that the development fails to provide adequate internal amenity for future occupants of the boarding rooms, as the rooms are not provided with a ceiling height of 2700mm. The general objectives of this and other controls concerning boarding houses are set out at Part 4.3. The Council relies on objective 3, which is to "achieve an acceptable level of internal and external amenity for people living in boarding houses."
3. The Council relies on the evidence of Mr Mithen, who opines that the rooms have poor amenity due to their location south of future five-storey development on Parramatta Road, poor cross-ventilation with the majority of rooms opening to partly enclosed corridors and stairwells, and noise impacts from the flight path and from vehicles, bins and the car lift.
4. Parker Logan instead submits that the rooms achieve sufficient amenity, and says that all other controls relating to the amenity of the rooms have been met. It relies on the evidence of both Mr Boston and Mr Wolski.
5. Mr Boston's evidence is that the 2.4m ceiling height complies with the BCA, and that the objective of the MDCP 2011 is achieved notwithstanding the numerical departure. In forming this opinion, he gives the following evidence: "• All boarding rooms are shallow in depth with large north/ north western orientated windows affording good levels of light throughout the day deep in to the floor plates; • Although not prescribed by SEPP [ARH] all boarding rooms have north/ north western orientated private balconies which significantly enhance the amenity and utility of the rooms; • Although not prescribed by SEPP [ARH] or MDCP all boarding rooms are naturally cross ventilated which significantly enhances the amenity of the rooms; and • [A] minimum 2.4 metre ceiling heights are regularly accepted as affording appropriate amenity for boarding rooms through Sydney."
6. Mr Wolski has undertaken an analysis of volumetric amenity and opines that the 2400mm ceilings provide "good amenity at a depth of 2.0 times the height ie 4800mm; and acceptable amenity at a depth of 2.5 times the height ie 6000mm." He considers that beyond this, "When the subject floor plans are reviewed, it is evident that only entries and utility spaces are behind this 6000mm line." As such, his opinion is that based on the depth and size of the rooms, a ceiling height of 2400mm is acceptable. He also opines that the natural ventilation will be effective.
7. I accept that the rooms have sufficient amenity and meet the objective at O6, and that a floor to ceiling height of 2.4m is adequate in the circumstances. First, as Mr Boston and Mr Mithen agree, the boarding house meets the solar access requirement in the MDCP 2011 for at least 65% of rooms within a boarding house to receive "direct sunlight over minimum 50% of the glazed surface [of a window] for at least two hours between 9.00am and 3:00pm on 21 June". Second, natural ventilation is provided with operable windows so that occupants can choose whether to benefit from natural ventilation or protect themselves from the acoustic impact of aircraft flights. Third, the rooms all have private open space. Fourth, they meet all of the other controls in Part 4.3.3.5 of the MDCP 2011 for natural ventilation, natural light, rooms size and fit-out, and the minimum area for private open space. Fifth, I accept the analysis undertaken by Mr Wolski that the rooms have acceptable amenity at the 2.4m ceiling height when considering their depth. Finally, I accept the evidence of Mr Boston that the 2.4m floor to ceiling height is compliant with the BCA and regularly accepted as affording appropriate amenity in boarding rooms elsewhere across Sydney. For these reasons, I am satisfied that the objective to provide rooms that "are adequate in size, configuration and facilities provided to accommodate residents' needs and provide a reasonable level of privacy and comfort" is met and that strict compliance is therefore not required.

Compatibility with the character of the local area

1. Clause 30A of the SEPP ARH requires that I consider the compatibility of the proposal with the character of the local area. It provides: "A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area."
2. Whilst no issue has been raised by the Council regarding compatibility, in exercising the functions of the consent authority the Court is bound by this clause. For the reasons set out above concerning the consistency of the proposal with the development consents granted on the adjacent properties fronting Parramatta Road, I am satisfied that the design of the development is compatible with the future character of the local area, which is expressed through those consents. In light of those consents and the applicable FSR and height controls, the character of the area will be undergoing a transition from its current two storey character to the five storey design with recessive upper levels, as proposed in the current development.

Concerns of the resident objectors

1. I accept that the submissions made by the resident objectors do not warrant refusal of the application, for the following reasons.

Traffic along the right of way

1. The residents' concerns regarding traffic along the right of way are resolved by the works to the driveway that form part of the application. The proposal replaces the single driveway over the right of way with a 6.1m double width driveway, which provides for two-way traffic along the existing right of way. A waiting bay for vehicles is included within the boundary of the site and in front of the car lift, to reduce any impacts caused by waiting cars on traffic movements through the site. Both Mr Bertacco and Mr Selim agree that this is a significant improvement to the existing configuration, that it improves sightlines to pedestrians and will reduce the impacts on congestion or traffic flow along Crystal Street.

Garbage bins on Crystal Street

1. Similarly, the residents' concerns regarding garbage bins on Crystal Street is resolved by the agreement between the parties that the bins be temporarily held in a ground floor holding bay within the site on the day of collection, and collected from there by the Council's garbage collectors. Further, the parties have agreed to the imposition of a condition of consent that precludes the bins from being placed on the kerb of Crystal Street earlier than 7:00pm the night prior, and requires them to be collected within a few hours after they have been emptied.

Parking

1. The evidence is that at the time when the plans were amended in February 2018, the parking provided on-site was adequate to comply with the requirements of the MDCP 2011 regarding parking to be provided for the serviced apartments and the commercial space, and also met the "must not refuse" criteria of the SEPP ARH that precludes refusal on the basis of parking if 0.2 spaces are provided for each boarding room. As such, at that time, cl 29 of the SEPP ARH prevented the application from being refused on the basis of parking.
2. However, on 1 June 2018 (one business day prior to the hearing), cl 29(2)(e) of the SEPP ARH was amended so that the "must not refuse" criteria that precludes refusal on the basis of parking was raised to 0.5 parking spaces for each boarding room, unless the development is carried out by or on behalf of a social housing provider. Although the development does not comply with this criteria, parking is not raised as a concern by the Council and nor did the Council make any application during or after the hearing to agitate the issue of parking following the amendment to the SEPP ARH.
3. As I have no evidence to support the submission by the residents that the development will exacerbate problems with parking in the area, I am not satisfied that the parking is of sufficient concern to warrant refusal of the application. Further, at the time that the application was amended in February 2018, and throughout the joint conferencing process, the application complied with the "do not refuse" criteria of the SEPP ARH and the requirements of the MDCP 2011, and would have continued to do so but for the amendment made to the SEPP ARH one day prior the hearing.

Obstruction of natural light

1. The window about which the adjoining neighbour is concerned is one of a number of glass brick windows that faces south and provides natural light to a commercial space. Given that it is south facing and does not provide solar access, that the space to which it provides natural light is commercial in nature, and that natural light is maintained to the remaining south facing glass brick windows, I am not of the view that blocking this window results in an impact that warrants refusal of the application. This is particularly so in circumstances where the MDCP 2011 allows for a zero setback to the side boundaries, and where the length of the proposal for which there is a zero setback is in fact limited.

Other concerns

1. I am satisfied that the remaining matters raised by the objectors do not warrant the amendment or refusal of the application.

Conditions of development consent

1. The parties reached an agreement on the conditions to be imposed if development consent is granted, except for one deferred commencement condition proposed by the Council for the subdivision of the site so that the acquisition area becomes a separate lot.
2. The Council submits that such a condition is appropriate in circumstances where the acquisition area is the subject of future acquisition and where no development is proposed on it. Parker Logan opposes its imposition.
3. I do not accept that the condition is necessary or appropriate. The future acquisition of the acquisition area is not certain, and subdividing the site will permit the sale of the acquisition area to a third party and/or will permit development to occur on the new lot under the current controls notwithstanding that its area was utilised to maximise the FSR on the remaining part of the lot. As such, requiring the subdivision could result in an outcome that is contrary to what is sought to be achieved by the Council.

Outcome of the appeal

1. As set out above, I find that the development is an appropriate response to the site's constraints, its location and its context. Given that the other planning controls of the SEPP ARH, the MLEP 2011 and the MDCP 2011 are met, there is no basis to refuse the development application and it is granted accordingly subject to the conditions of consent as agreed between the parties.
2. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a part four, part five storey mixed use development at 3-7 Crystal Street, Petersham (Lot 1 DP63868) with one level of basement car parking, a ground floor commercial/retail unit, four ground floor serviced apartments and a 56 room boarding house on the floors above, subject to the conditions in Annexure A. 3. The exhibits are returned, except for exhibits 3, 4, B, D, F and J.

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Commissioner Gray Annexure A (334 KB, pdf)

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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: 06 July 2018