DCP Height Control Non-Compliance
39The Council submits that the development consent to DA 10/1511 already represents a 22 percent departure from the height limit of 10 m in the 2005 DCP and the applicant is now seeking a 50 percent departure. The height limit was imposed through a strategic process which involved wide community consultation which commenced with the Newcastle Urban Strategy (NUS) and culminated in various planning instruments including the 2003 LEP and 2005 DCP. While the site is in the Substantial Growth Precinct, the 2005 DCP constrains this by reference to FSR and height. The Court should give the conclusion of the JRPP significant weight because it is a senior panel, and the SEPP 65 Panel and Council assessment reports went up to it. Those reports did not convince the JRPP. The JRPP permitted an exceedence of the height control of 22 percent; however to exceed the height control by 50 percent is not appropriate, and amounts to a change in the planning controls. The applicant's justification for the excessive height sought, that the site has particular flood constraints which prevent excavation and that an alternative design maximising the allowable FSR would negatively impinge on residents, assumes that the FSR control is a control as of right. The Council submits that it is not unreasonable to require the applicant in the circumstances of a constrained site to be limited to the 22 percent exceedance already granted. The Council submits that to allow the development of the height proposed in this application would be to effect a general change in the planning regime for the site beyond that contemplated by the appropriate planning controls, relying on Skyton Developments Pty Ltd v The Hills Shire Council [2009] NSWLEC 1299.
40The applicant submits that the terms of the 2005 DCP itself anticipate that compliance with a control does not necessarily mean that a development is appropriate, or that non-compliance means that a development is inappropriate. The applicant submits that having regard to the objectives of the NUS, the provisions and objectives of the 2005 DCP, the constraints and opportunities of the site, the capacity to increase setbacks to adjoining private owners, the absence of physical impacts, and the orderly and economic use of the land, the development should be approved notwithstanding the numerical non-compliance. The Council assessment considered all the relevant s 79C matters and dealt with the objections; it is a detailed analysis, and should be given greater weight than the analysis by the JRPP. The legislation does not require that weight be given to the assessment by the JRPP. The evidence of Mr Baker and Mr Marler, which responds to Mr Speek, should be given weight.
41Section 79C (1)(a)(iii) of the Act requires consideration of the provisions of the 2005 DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy. That was the approach adopted by Brown C in Skyton at [46]. I agree with the Council that, as outlined below, the development of the 2005 DCP and the 2003 LEP were the outcome of a strategic process which involved wide community consultation which commenced with the NUS.
42Element 5.2 of the 2005 DCP addresses Urban Housing. At 5.2.1(a) the 2005 DCP states that it "strengthens the neighbourhood visions and objectives of the Newcastle Urban Strategy", and that the NUS "should be read in conjunction with this Element".
43It was common ground that the NUS is entitled to significant weight in accordance with the principles identified in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [92]. The NUS is identified on the Council's website as a policy which the Council uses when making decisions (exhibit F), and is described in the following terms:
The Newcastle Urban Strategy (NUS) provides direction for the development and management of Newcastle over a 25 year period. It is also flexible to accommodate future economic trends and the social and environmental needs and aspirations of the community.
The Strategy's key objective is to promote existing neighbourhoods as mixed use centres 'urban villages' with higher employment and housing densities that in the past, and with buildings and streetscape works that celebrate local identity and respect local character.
44The NUS was developed in 1998, and the 2009 Update is in evidence (exhibit 1, p 426). At 1.1 the NUS is described in the following terms:
The Newcastle Urban Strategy is one of a number of related city strategy documents which describe Council's "big picture" policy. These include the Strategic Directions Statement, the Social Strategy Plan, the Cultural Review, the Newcastle Environment Management Plan, the Linking Plan, the Landscape Structure Plan and the Efficiency and Effectiveness Policy.
The Strategy provides the basis for more detailed and/or localised policy and action plans. Specifically it provides the basis for the Newcastle Local Environmental Plan 2003 and the Newcastle Development Control Plan 2005. The Newcastle Urban Strategy has been prepared as a local environmental study, according to the requirements of the Environmental Planning & Assessment Act.
45At 2.3 the NUS provides Neighbourhood Visions and Objectives, including for Cooks Hill and The Junction. At 2.4 the NUS provides City-wide Strategies, including 2. Residential Development Strategy, which prescribes where housing may be developed at low, medium and higher densities. There are three precinct areas, Substantial Growth Precinct, Moderate Growth Precinct, and Limited Growth Precinct. Criteria are provided to determine whether a site falls within one of those three precinct areas, by measuring the distance along a street system that can be walked by reference to safety, accessibility, friendly pedestrian routes, and efficiency ("SAFE" criteria). The Substantial Growth Precinct applies to residential land within a 10 minute SAFE walk, approximately 800 m, of an established district level centre and/or railway station except land within a designated Heritage Conservation Area. The site is in a Substantial Growth Precinct.
46The 2005 DCP provides at 5.2 Urban Housing the following objectives for the Substantial Growth Precinct:
To:
Promote a substantial increase in new dwellings, greater housing diversity and new built form.
Encourage redevelopment or consolidation that allows for more compact and sustainable urban form.
Create a vibrant place for people to live in proximity to community facilities and services, commercial centres, employment, and transport nodes.
Encourage public transport, walking and cycling as alternatives to the car.
47The 2005 DCP notes (at 5.2.1(a)) that context includes social, economic and environmental factors as well as the physical form of the area and its surrounds. Part 5.2.3 Building Height and Appearance places emphasis on "the appearance, height and scale of buildings". Part 5.2.3(b) Building Height states as general objectives:
To:
Ensure development enhances and makes a positive contribution towards the desired built form.
Allow reasonable daylight access to all developments and the public domain.
Encourage design which creates desirable living conditions and ensures that the amenity of surrounding properties is properly considered, particularly in relation to issues of privacy and overshadowing.
48The specific objectives for the Substantial Growth Precinct are "to ensure that height relates to the desired future built form". The maximum height specified for the Substantial Growth Precinct is 10m, measured vertically from existing ground level to the highest point of the building. The Performance Criteria provide:
The maximum height may be varied where a written request has been received from the applicant that seeks to justify the variation by demonstrating:
Compliance with the height and/or FSR controls is unreasonable or unnecessary in the particular circumstances; or
The height of the proposed building is equivalent to or less than the height of a building on an adjacent site; or
The variation is minor and would satisfy the objectives and performance criteria of this section; and
Other requirements of this Element relating to streetscape, daylight, sunlight and privacy are satisfied.
49The 2005 DCP makes it clear that the maximum height limit can be varied in appropriate circumstances. I agree with the applicant that it is not determinative that the variation proposed is 50 percent above the height limit. The extent of the variation, and whether it could be described as "minor", is one of the justifications identified in the 2005 DCP. The approach relied upon by the applicant, namely that compliance is unreasonable or unnecessary in the particular circumstances, is clearly open under the 2005 DCP.
50The applicant submitted as its justification for seeking a variation to the height limit that the setbacks are in excess of the minimum required; the additional height does not create more overshadowing; more open space and landscaping opportunities are created; flood planning allows a basement car park for 20 percent of the site with all other parking to meet the 2005 DCP at grade; the additional height at the central building has been designed as a recessive element which is effectively self shadowing; the additional height is not an overdevelopment; and the alternative of spreading the buildings over the site to reduce height would create more bulk, scale and privacy issues. The reports provided by the applicant with the development application, including those prepared by Mr Baker, and the statements of evidence provided in these proceedings, submit that the height of the development is satisfactory because any potential for overlooking has been carefully managed; the proposal causes less overshadowing of neighbours than would a development adopting the height and setback controls; the portions of the development exceeding 10m which are visible from the public domain in close proximity are generally limited to Union Street; those visible in more distant views will only be seen from National Park; and the parts of the development which exceed 10 m do not block any existing views.
51I agree with the applicant that the development as a whole, and the addition of the proposed six units, is consistent with the objectives of the Substantial Growth Precinct: it provides a substantial increase in new dwellings, and encourages redevelopment, on a site close to community services and facilities including shopping centres and transport. The development as a whole, including the additional units, complies with the applicable FSR control.
52The general objectives of the building height controls are provided at 5.2.3(b) of the 2005 DCP. The Council's Urban Design Consultative Group assessed the proposed development in its original form, which included the additional floor, on 16 February 2011 (exhibit 1, vol 2, p20), and noted that "the height and scale of the buildings have been modulated both horizontally and vertically with maximum height located at the centre of the site". The Urban Design Consultative Group considered the management of scale to be acceptable in the location. The Council's Assessment Report provided to the JRPP dated 27 October 2011 considered Element 5.2 of the 2005 DCP in detail, noting that the proposed development was consistent with the principles of the NUS by locating higher density residential development within close proximity to The Junction commercial centre and also Newcastle City Centre, and the site has good access to public open space (exhibit 1, vol 2, p 163). The Assessment Report noted that the development establishes a scale and form appropriate for its respective residential precinct, achieves an active street frontage, provides for appropriate building depth and bulk and for high quality landscaping (p 164); and that while the development is more intensive than current development on the site it was considered acceptable in terms of the desired built form for the area (p 165).
53The Assessment Report noted that the flooding constraints on the site do not justify a departure from the height guidelines in their own right, however that means that the applicant is constrained in exploring alternative design solutions such as underground basement car parking (p 166). The Assessment Report agreed with the applicant that the proposed development provided a better overall planning outcome than what could reasonably be expected from an alternate design of compliant building height but increased footprint; the location of the higher portions of the development centrally on the site minimises visual impact and the increased setbacks from boundaries provide for improved privacy (p 168). The Assessment Report accepted that the applicant had adequately justified that compliance with the height control was unnecessary and unreasonable in the circumstances (p 169).
54The Minutes of the JRPP meeting of 27 October 2011 are in evidence (exhibit 1, vol 2 p 215). The Minutes identify the persons speaking in favour of and against the approval of the proposed development, and state as the reason for the imposition of a deferred commencement condition requiring deletion of the level 3 units:
To ensure that the external appearance and overall height of the proposed development is reasonably in character with the character of existing and future development in the locality and does not detract from the existing streetscape.
55The Council relies on the decision of Preston CJ in Walton v Blacktown City Council [2006] NSWLEC 451 to support its submission that the conditional grant of approval and reasons are a relevant matter in the exercise of discretion in considering the identical matters which the JRPP took into account in refusing the additional six units. However, this is not a situation where an applicant is seeking, in a s96 modification application, to re-litigate matters argued and determined in a prior appeal under s97 of the Act and where there needs to be some material change in circumstance or something revealed that was not known at the time of the earlier hearing, and Walton is distinguishable. The Council submits that the determination of the JRPP should be given significant weight. I agree that the determination and the reasons of the JRPP are relevant, however the present development application must be assessed on all the evidence now before the Court, which includes the determination and reasons of the JRPP.
56The evidence now before the Court includes the statements of evidence of Mr Marler and Mr Baker, and the oral evidence of Mr Baker. The plans for the proposed additional floor have been amended to reduce the depth of the terraces on the northern side of the building and to require landscaping on the terrace. Mr Baker's oral evidence included notation on the plans of estimated sight lines from the proposed additional floor to the adjoining residential properties in Tooke Street and at 115 Union Street. I accept Mr Baker's evidence concerning privacy impacts, and his evidence (noted above at [26 ]) concerning visual impact of the proposed additional floor.
57Having regard to the evidence now before the Court, I am satisfied that when considering the proposed additional floor in the context of the development as a whole and the site, compliance with the 10 m height limit is not necessary. If I am wrong in the approach adopted to assessment of the development application, and the proposed floor should be considered in isolation from the approved development, I would reach the same conclusion. The proposed additional floor is located in the centre of a large site, and there are substantial setbacks from all four boundaries of the site as noted in the evidence of Mr Marler at [22], which both reduce visibility from both proximate and more distant positions, and minimise privacy impacts on adjoining neighbours. This is not a situation where, as in Skyton, there was a substantial departure from both height and density controls, and where it could be said that approval of the application would be to effect a general change in the planning regime for the site beyond that contemplated by the planning controls.
58The evidence of Mr Marler and Mr Baker, which I accept, is consistent with the conclusions reached on issues of height, bulk and scale, privacy and visual impact, and consistency with the objectives identified in the NUS and the planing controls, by the Council's Assessment Report and its Urban Design Consultative Group, and on that basis while the proposed development exceeds the height limit in the 2005 DCP it is appropriate to approve the development application.