Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council

Land and Environment Court (NSW)|2018-07-06

Judgment

COMMISSIONER: This is an appeal under then s 97, now s 8.7, of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of a development application by the respondent, Georges River Council (the Council). The application is for the demolition of existing buildings, amalgamation of lots, and construction of a residential flat building (RFB) at 70-78 Regent Street, Kogarah (the appeal site).
The key issue associated with the appeal relates to the height of the proposed RFB. An associated issue is the inability to amalgamate with, and therefore isolation of, adjoining properties at 80-84 Regent Street. The appeal site is located in an area referred to as the Kogarah North Precinct (the KNP) which has been recently rezoned to permit high density residential development.

Background to the application

In May 2017 Amendment 2 to the Kogarah Local Environmental Plan 2012 (the LEP), referred to as the New City Plan, became effective. It rezoned sites in the KNP from low density Residential R2 to high density Residential R4 and permitted development to a maximum height of 33m and a maximum floor space ratio (FSR) of 4:1.
Development Application No. DA111/2017 (the application) was lodged in June 2017 and was not determined. The original application proposed the amalgamation of five adjoining properties, demolition of structures on those properties, and the construction of an 11 storey RFB to a maximum height of 37.52m. The RFB comprised 127 apartments over a three level basement containing 145 car parking spaces.
On 14 July 2017, the applicant lodged a Class 1 appeal with the Land and Environment Court (the Court) against the deemed refusal of the application. A Statement of Facts and Contentions (SFC) filed by the Council raised a number of contended reasons not to consent to the application.
On August 7, 2017, and notwithstanding the recent introduction of the 33m height control in the LEP and the imminency of the new design controls in the draft Development Control Plan (the DCP) for the KNP, the Council resolved to permit exceedances to the height control in the KNP by up to 20% (ie to in the order of 40m). This was in part due a number of applications lodged with the Council which all exceeded the 33m height limit and a concern that achieving the maximum permissible FSR may not be possible within a 33m height limit.
The Council also resolved that any exceedances to the height be based on criteria to be inserted into the DCP. The criteria included that any variation to the height would only be considered where it was supported by a "suitable public benefits package" typically secured by a Voluntary Planning Agreement. The applicant sought approval to exceed the height limit in accordance with that Council resolution.
Conciliation was held between the parties under s 34 of the Land and Environment Court Act 1979 (the Court Act) in early December 2017. Various amendments to the application were proposed in an endeavor to achieve a conciliated outcome.
However, on 18 December, 2017 the Council adopted the new DCP controls for the KNP, rescinded their August 7, 2017 decision to allow height variations, and did not include the proposed criteria to guide height exceedances in the DCP. As the application did not comply with the new maximum height controls, the conciliation process was terminated.
At the hearing, the parties agreed that I could have regard to the evidence provided during the conciliation process: s 34(12) of the Court Act.
On 12 April, 2018 the Court granted leave for the applicant to amend the application. The amendments reduced the number of apartments to 109 and the number of car parking spaces to 94. It proposed a building containing a 4 level podium constructed to both side boundaries and to a maximum height of some 38.5m. The height breaches were associated with rooftop communal open space and a lift overrun to service this space.
Experts for the parties on the planning and urban design contentions were Mr Darroch (planner) and Mr Dickson (architect/urban designer) for the applicant and Mr Gosling (planner) and Ms Morrish (urban designer) for the Council (the design experts). On traffic engineering matters, the experts were Mr Palmer for the applicant and Mr McLaren for the Council.
Following the termination of conciliation, the experts continued to consult extensively on amendments to the application to address outstanding contentions. At the commencement of the hearing, leave was sought and granted to a further revised application (Exhibit A).
The amendments in Exhibit A were agreed by the parties to not be minor. Accordingly, leave was granted to the amended application subject to the applicant paying the Council's costs under s 8.15 of the EPA Act.
The application as further amended, and the subject of the hearing, comprised a building with a 4 level podium to the street and an 11 storey tower with 108 apartments over a 3 level basement containing 123 car parking spaces. Vehicular access was off Stanley Lane. The area of rooftop communal open space had been reduced and replaced with 4 rooftop apartments. Both the rooftop open space and the rooftop apartments exceeded the 33m maximum height limit.

The appeal site and locality

The appeal site is located on northern side of Regent Street with a frontage to Regent Street of 53.95m and a similar secondary frontage to Stanley Lane at the rear. It has a total area of some 2556m².
Existing improvements on the site comprise 5 single residential dwellings and associated structures.
The adjoining properties to the east at 80-84 Regent Street comprise 3 residential dwelling houses referred to by the parties collectively as "the isolated site". To the west at 68 Regent Street is a single storey dwelling house.
The adjoining properties to the rear across Stanley Lane and opposite in Regent Street are also dwelling houses. Higher density development is to the east of the site adjoining Princes Highway.
The dwelling houses in the vicinity are all anticipated to be redeveloped over time given the upzoning of the KNP. At the time of the hearing's commencement, there were eight applications for new RFBs in the KNP before the Council or the Court, including the appeal application and three others in Regent Street. None of these applications had been determined.

Relevant statutory controls

As previously indicated, the appeal site is part of a precinct "upzoned" in Amendment 2 of the LEP to R4 - High Density Residential. The proposed development is permissible with consent in that zone.
The objectives of the R4 zone are stated in the LEP as: To provide for the housing needs of the community within a high density residential environment. To provide a variety of housing types within a high density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The development does not comply with the maximum LEP height of 33m but is less than the permissible FSR of 4:1. In order to be able to grant consent with the height non-compliance, the provisions of clause 4.6 of the LEP must be satisfied. The provisions of that clause of relevance to the appeal follow: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) …
The LEP objectives of the height standard at clause 4.3(1) are as follows: 1. to establish the maximum height for buildings, 2. to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas, 3. to provide appropriate scale and intensity of development through height controls.
State Environmental Planning Policy No.65 (Design Quality of Residential Flat Development) (SEPP 65) also applies as does the associated Apartment Design Guide (ADG).
Development is also subject to the provisions of the DCP. In addition to the general controls, of direct relevance to the appeal is Part 4E which deals specifically with the KNP.

Part 4E of the DCP - the Kogarah North Precinct (the KNP)

Part 4E of the DCP contains the specific objectives and controls for the KNP. The following is extracted from Part 4E: The coming change to the Precinct will see a shift from low density residential to higher density apartment buildings. The change in the local character and increase in population will see the area transform, providing an array of opportunities to the current and future population. New residents will live at higher densities and in apartment buildings.
The extent of the KNP, delineated in Figure 1 of the DCP, is as follows:
The controls in Part 4E are based on the recommendations arising from the Kogarah North Urban Design Strategy (the UDS) which was endorsed by the Council on 27 November, 2017.
The UDS includes a series of urban design principles which the DCP states identify appropriate planning and urban design measures to encourage the renewal of land within the Precinct and address the scale and density of development, traffic and pedestrian management, landscaping and other public domain improvements. The UDS contains three options for development in the KNP. Design Option 3 was endorsed by the Council and places an emphasis on creating a built form that complies with the ADG and defines a 4 storey street wall character. However, the resultant FSR achieved across the KNP is below 4:1.
Figure 2 of Part 4E below reflects the vision in the UDS for the KNP:
The controls for development in Part 4E include requirements to comply with the FSR and height controls of the LEP and the following at clause 7: (iii) Sites must be of a sufficient width to accommodate development. For development sites to optimise yield and public domain amenity development sites a minimum site frontage of 60m (sic). Where sites do not have a minimum site frontage of 60m the development would need to ensure the design outcomes/built form which meets the Vision and the Desired Future Urban Design Principles for the Precinct as well as the built form objectives outlined in this Part of the DCP. In considering the development Council will take into account the proportions of the building - the podium width compared to the width of the tower and the appearance from the public domain. (iv) Development is not to result in the creation of an isolated site that could not be developed in compliance with the relevant planning controls, including the Kogarah LEP 2012, SEPP 65 and the ADG. (v) Development of land identified in Table 1 below is subject to an amalgamation requirement: Table 1 - Amalgamation Requirements Site id Property Address/Description Site 1 ... Site 5 Nos 70 - 84 Regent Street, Kogarah

(vi) If an application proposes a redevelopment that does not comply with the amalgamation pattern identified in Table 1 above, or where the proposal would result in an isolated site with a minimum site frontage of less than 60m, the applicant must submit to Council with the Development Application justification to vary the amalgamation pattern requirements. (vii) Council will require appropriate documentary evidence to demonstrate that a genuine and reasonable attempt has been made to purchase an isolated site based on a fair market value. At least two independent valuations (reports and valuations must be undertaken within 3 months of the date of the DA lodgement) are to be submitted as part of that evidence and these are to account for reasonable expenses likely to be incurred by the owner of the isolated site in the sale of the property. The documentation must include copies of correspondence between parties and any formal financial offers and responses to offers… (viii) Where amalgamation of the isolated site is not feasible, applicants will be required to demonstrate that an orderly and economic use and development of the separate sites can be achieved. In this regard, applicants will be required to submit with the DA a DA Concept Plan that provides the following: Details an envelope for the isolated site, indicating height, setbacks, resultant site coverage (building and basement), sufficient to understand the relationship between the application and the isolated site. The likely impacts the developments will have on each other, such as solar access, visual and acoustic privacy and the impact of development of the isolated site on the streetscape must also be addressed.

At clause 9 of Part 4E, the following objectives apply to height in the KNP: A. Enable buildings, open space and public domain areas to achieve an acceptable level of daylight access. B. Ensure development has minimal impact on neighbouring properties in terms of the potential loss of views, loss of privacy, overshadowing or visual intrusion.
Part 4E also contains setback controls. Side and rear setbacks are required to result in a development that: (a) Provides resident amenity, including landscaping and deep soil planting, protection of large established trees, privacy, solar access and ventilation; (b) Responds to the local context and provides streetscape amenity, including providing adequate separation from existing and future development; and (c) Does not prevent a neighbouring site from achieving its full development potential.
Front setbacks are to be in accordance with Figure 6 (reproduced below) which applies to developments with frontages to streets in the KNP other than Princes Highway and Railway Parade North:
Approval on sites listed in Table 4 of Part 4E is subject to the dedication of land for road/lane widening without cost to Council. The area of the land to be dedicated is taken into account in calculating the permitted density of development. The appeal site is included in Table 4 (reproduced below): Location Land Dedication Stanley Lane, between Regent Lane and Regent Street For all allotments with a boundary to Stanley Lane (both northern and southern sides of the Lane), a 1200mm strip of land is to be dedicated to Council to ensure appropriate access and egress from the laneway.

Development in the KNP is required to provide for a range of housing types. The stated intent is to enable a greater intensity of residential uses across the Precinct, giving effect to broader metropolitan-wide directions to support urban consolidation, particularly in locations close to jobs and public transport.
Rooftop communal open space is encouraged and living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of 2 hours direct sunlight between 9am and 3pm in midwinter.
A Transport Impact Study (TIS) is required with applications addressing the potential impact of the development on the surrounding traffic network. Onsite parking is to be provided in accordance with the requirements of the ADG and SEPP65. Parking is to be below ground, and access from laneways and side streets.
Development in the KNP is also affected by the Obstacle Limitation Surface (OLS) for Sydney Airport with all applications required to be referred to the Civil Aviation Safety Authority and Airservices Australia. Approval is required from the Federal Department of Infrastructure, Regional Development and Cities (DIRDC).

Objector submissions

The application was notified to adjoining properties in mid-2017 and four letters of objection were lodged; one from each of the owners of the three properties comprising the isolated site and the fourth from a resident of a unit in an RFB in Princes Highway.
The objector from Princes Highway was concerned with adverse impacts given the height of the proposed RFB, particularly overshadowing, overlooking and loss of breezes. Concern was also raised with increased traffic and reduced parking availability in Regent Street. Noise and disturbance during construction were also of concern.
The owner of 82 Regent Street, raised concern with the site not being of the required area to accommodate the height and FSR proposed. Concern was raised in terms of the isolation of 80-84 Regent Street and the reduced market interest as a result, as the three properties combined would not have the minimum 60m width required for RFB development (to the maximum permitted by the LEP controls). Concern was also raised with overshadowing and overlooking. Increased side setbacks were sought.
Similar responses were received from 80 and 84 Regent Street in terms of concerns with isolation (and reduced development potential) of their properties and lack of interest in the acquisition of their properties by potential developers as a consequence.
No objectors spoke at the conciliation conference or at the hearing. At the conciliation conference, the Court, the parties and the experts viewed the appeal site and properties in the vicinity, including the isolated site.

The amended application

The Council initially raised eleven contentions in terms of the appeal in an Amended SFC (Exhibit 2) filed in response to the April 2017 amended application. The majority were associated with strategic planning and urban design considerations.
In particular, the Council contended that the application should be refused because the proposal was not in keeping with, and detracted from, the desired future character for the KNP. The proposed height would be contrary to the newly established maximum height controls in the LEP and any approval of the height exceedance sought would set an undesirable precedent in the KNP.
The Council was concerned that, at a height in the order of 38.5m, the proposed development exceeded the LEP maximum height limit of 33m by some 16%. At an FSR of 3.98:1, it was also close to the maximum permissible FSR despite the appeal site not having a minimum width of 60m. In the Council's submission, achieving the maximum FSR without amalgamating the site was not a reasonable expectation.
It was also contended that the submitted clause 4.6 request did not adequately address cl 4.6 nor demonstrate that the development would be in the public interest.
There was also a concern that the proposal did not involve amalgamation with the adjoining site at 80-84 Regent Street as required by the DCP. This would create an isolated site of insufficient width and area to be able to be developed as required by clause 7 (iv) of Part 4E of the DCP.
Concern was also expressed with ventilation, access to daylight, the floor to floor heights of less than 3.1m, the location of the substation, the proposed waste management, and inadequate landscaping of the front and side setback areas.
The Council contended that the building constructed to both side boundaries would result in an unrelieved 4 storey structure along these boundaries. Particular concern was raised with the potential amenity impacts on the adjoining property to the west. Concern was also raised with the proposed rear setback of habitable rooms and balconies from Stanley Lane as the building intruded into the 50% recommended ADG setback above the fourth level which created an unacceptable bulk to a narrow lane and would be overly dominant to the dwellings on the other side of the lane.
Contentions were also raised in terms of inadequate parking and access being provided from Regent Street rather than from Stanley Lane as required by the DCP. The applicant had also not confirmed that the 1.2m widening of Stanley Lane would be dedicated to Council as was required by the DCP prior to consent being granted. Nor had DIRDC approval been issued for the proposed height.
As a consequence of extensive conferral by the experts, by the time of the hearing it was agreed that conditions or the further amendments undertaken by the applicant (Exhibit A) resolved the majority of the Council's concerns.
DIRDC approval had been provided and the floor to floor heights accepted. The Council's initial concerns with the bin collection area in the front setback area detracting from the landscaped setting and front elevation were resolved by an alternate area with collection proposed from Stanley Lane. The traffic experts advised the Court such access would be acceptable.
The widening dedication for Stanley Lane had been confirmed with access now proposed off Stanley Lane. The traffic experts agreed that access from Stanley Lane would be acceptable but should be subject to an agreed condition to undertake interim works in the lane as recommended by the Council's expert, funded by the applicant. Should the Council resolve not to support the recommended interim works, the traffic experts advised the Court that traffic volumes and safety risks would be low and the proposed access from Stanley Street would be acceptable. Any interim works undertaken would remain in place until Stanley Lane had been upgraded in accordance with the recommended upgrade in Part 4E of the DCP.
The traffic engineers also agreed that the revisions proposed to the car parking in the basement (including providing for future access connection to the adjoining isolated site and provision of the required number of parking spaces) were acceptable.
Setbacks had been increased to the western and rear boundaries to generally comply with ADG requirements including providing a 6m landscaped setback of the podium from the western boundary. The nil setback of the podium to the eastern boundary was also agreed by the experts to be appropriate given it would enable the development of the appeal site and the isolated site to reflect the continuous built form anticipated had the sites been amalgamated.
In terms of the isolated site, it was agreed that the intent of the DCP is that the appeal site and these adjoining properties to the east should be amalgamated and developed. However, the Council accepted, on the information filed by the applicant, that the DCP requirements at control (vii) of Part 4E had been met; that is genuine and reasonable attempts had been made to purchase the isolated site based on a fair market value, but these had been unsuccessful.
The applicant had also submitted two concept plans showing the potential development of the isolated site; one as a boarding house with a slight exceedance of the permitted maximum FSR and the other as an RFB with an FSR of 3.58:1. The experts agreed that the concepts demonstrated that an orderly and economic use and development of the isolated site could be achieved as required by the DCP. This was assisted by the provision of a future connection from the basement car park in the amended application to the isolated site to provide access through the basement to that site.
However, of concern to the Council, the floor space (massing) removed to provide the increased setback to the western boundary had been relocated to comprise 4 apartments adjoining the communal open space on the roof. These apartments all breached the LEP maximum height control and resulted in an FSR of 3.92:1. The amount of rooftop communal open space had been reduced from 266m² to 170m² to accommodate the rooftop apartments. The revised maximum height was in the order of 37.75m (a 14% exceedance).
This remained the only substantive contention to be resolved; namely the height breach proposed to accommodate the rooftop apartments, and the adequacy of the clause 4.6 request to justify this breach.

Height exceedance including clause 4.6 request

As the proposed RFB exceeded the maximum permissible height under the LEP, justification was required under the provisions of cl 4.6 of the LEP. Several height exceedances were proposed. As shown in Exhibit A they comprised up to; 4.75m for the lift overrun, 1.5m for the communal open space balustrade, and 4.5m for the roof over the rooftop apartments.
The Council accepted that the height met the objectives of the zone and supported the height breaches to accommodate the rooftop communal open space, and the lift overrun to access it, but opposed any residential floor space exceeding the height limit.

The applicant's submissions and evidence

A detailed cl 4.6 written request, prepared by Mr Darroch, was submitted with the application seeking to justify the variation to the height standard (Exhibit 3, Annexure C).
The request claimed that there were sufficient environmental planning grounds to justify contravening the development standard and that the tests in cl 4.6 had been met.
In this regard, much of the request focused on two grounds. Firstly, that the proposed development, including its massing and height, was a better outcome, and would have less adverse impacts, than would be achieved were the site amalgamated and developed with the isolated site in the form envisaged by the DCP. Secondly, that the height was required to achieve the maximum FSR permissible in the LEP and therefore the density sought thus achieving efficient use of land and providing the increased dwelling supply and planned density intended for the KNP. To not achieve the maximum density permissible by the FSR would thwart or undermine the objectives of the R4 zone.
In terms of the first ground, the request argued, in essence, that the proposed development was superior relative to a development that would result were the site amalgamated with the adjoining isolated site as sought by the DCP. It claims such a building would be excessive in length and a very large building adjoining a much smaller building to the west. It would not achieve the breaks in the building massing at upper levels or articulation of facades sought in the DCP to define the character of the streetscape. In contrast, the proposed development contains upper level floor space in a tower configuration which, with a future second tower on the isolated site, would allow for a break in massing and increased articulation of an otherwise large building. This was argued to be a better planning outcome.
In addition, the proposed development was of design excellence providing a 4 level podium as required by the DCP and an elegant roof form and high quality rooftop open space, also encouraged by the DCP, as well as an atrium to provide improved amenity. The development provides its share of required building separation to common boundaries as distinct from built form closer to boundaries which would result in blank walls which could remain for some time awaiting the future development of adjoining sites. Only 4 apartments are above the 33m height limit but the whole tower achieves the required separation to boundaries. A "ziggurat" form is also avoided. Therefore there is a better planning outcome in terms of the form and massing, particularly in the short to medium term.
The development should be compared to, being a better outcome than, two possible compliant schemes (explained in words but not in plan form). The first compliant scheme would be lower with reduced setbacks, adversely impacting adjoining properties, with less opportunity for an interesting rooftop with communal open space at the ground floor. It would give rise to a building of lesser design excellence and reduced merit in terms of presentation of bulk and scale with reduced amenity. Alternatively, the desired intensity or density, in terms of the number of dwellings, would not be achieved.
The second compliant scheme would see the tower closer to the eastern boundary with a blank wall to the common boundary as encouraged by the DCP amalgamation pattern. "Infilling" this eastern setback area would have adverse amenity impacts for neighbours in terms of overshadowing, visual impact and loss of privacy.
In terms of development yield, a development that "fell short of the desired intensity" in order to achieve height compliance would result in a higher build cost, a reduced supply of accommodation and a lost opportunity to provide additional accommodation in a walkable precinct well served by public transport.
Furthermore, the proposed height exceedance was justified for the following reasons: 1. The area of the height breach would have no significant impacts to neighbouring properties in terms of overshadowing, privacy, view loss or outlook and would have no greater impact than a compliant development. In oral evidence Mr Darroch elaborated, claiming it would potentially have an improved impact for properties on the southern side of Regent Street, particularly in terms of overshadowing, given the extent of the unbroken wall that the amalgamated site development scenario encouraged. 2. The development would contribute to improving the public domain with the dedication and embellishment of the widened lane to the rear, which is another better planning outcome. 3. Notwithstanding the topography of the site, with a 3m cross fall, the building has not been set below street level to minimise the height. Regard should be had to this site constraint. 4. The design and location of floor space enables an extensive communal open space area on the north side of the building and at ground level where the amenity for occupants is greatest. 5. High quality communal open space is provided on the rooftop as sought by the DCP. In order to provide equitable access to this space the lift overrun must necessarily breach the height control, in this instance by 4.75 m. This could be avoided by stopping the lift at the lower level and servicing the open space with a platform lift and open stairs but this solution would be inferior and lift access a better planning outcome. The lift overrun and enclosed stairs had also been integrated into an interesting roof form as sought by the DCP. 6. The roof form and use was, arguably, an architectural feature, creating variety to the Kogarah skyline. The rooftop apartments were setback from the parapet on all sides and integrated into the roof form. 7. The development would provide a high level of amenity for future occupants. 8. The development would be compatible with the bulk and scale of future buildings envisaged for, and being central to, the KNP. Conversely, a compliant development would be uncharacteristic of the area and result in a poor planning outcome. 9. The severity of the burden on the owner and on adjoining owners of strict compliance with the height would be disproportionate to the attributes of the breach as the impacts of the non-compliance would not be significant whereas the burden imposed by strict compliance would be.
In oral evidence, Mr Darroch submitted that he had prepared schematic diagrams to look at the required efficiencies which would need to be achieved for the development of the amalgamated site to achieve its maximum development potential and which he said indicated the appeal application was a better outcome in terms of built form and amenity impacts. However, these diagrams had not been included in the cl 4.6 request filed with the Court or provided to the Council.
Mr Dickson also indicated that the rooftop apartments could be further setback if required to avoid any additional overshadowing and that they would screen the lift overrun. He also indicated there were limits on how much open space should be provided on the roof in terms of the number of people that could congregate there and the fire egress consequences.
It was also agreed that the rooftop apartments would not be visible from the street immediately adjoining the site (albeit they would be visible from other parts of the KNP).
Mr To, counsel for the applicant, provided written submissions. These documented the history behind the KNP controls commencing with a Housing Strategy adopted in 2014 proposing controls to enable the supply of new housing to meet demand and the State Government's housing targets in an area close to the town centre and public transport.
Council reports (Exhibit 1, folio 484) also indicated that the 33m height limit was adopted because it would provide for a transition from the 39m height permitted in the Kogarah Town Centre, is within the OLS for Sydney Airport, and would be generally consistent with the height of existing development in the vicinity along Princes Highway. The height was therefore not set because that was determined to be the appropriate height to achieve the maximum density sought.
Mr To submitted that it was however, the Council's intent to maximise the number of dwellings built in the precinct, to meet the "planned density". The Council adopted Option 3 in the UDS which would result in a lesser FSR than the LEP permitted and a uniform built form outcome. The Council also recognised that the maximum FSR within a 33m height limit was unlikely to be achieved across the KNP. For this reason, the Council resolved to allow height exceedances in August 2017. In allowing such height, the Council recognised (folio 485) that circumstances where height exceedance may be considered included where a building was fully ADG compliant, of design excellence, and did not adversely impact adjoining properties. That allowed height exceedance of up to 20%. What was proposed in this application was just over 10%. If the Court was to allow height exceedance, it should be to provide more apartments to achieve the planned residential density rather than to over provide rooftop communal space.
Notwithstanding, Mr To advised that, whilst the applicant sought the application as proposed and amended, if I was to find that the height exceedance was not supportable for the rooftop apartments, rather than refuse the application, the applicant would seek an approval with a deferred commencement condition sought by the Council. That condition requires deletion of the rooftop apartments and their replacement with additional high quality rooftop communal open space. The roof level is lowered as a consequence.
A second clause 4.6 request supporting such an outcome was subsequently filed with the Court. It retained most of the arguments included in the request for the rooftop apartments including the breaches that arise as a consequence of the cross fall of the site, the amenity offered by the communal open space to future occupants, the lift being required to provide equitable access to the communal open space, and that the building is finished with "an elegant roof form and high quality rooftop open space" as encouraged by the DCP.

The Council's submissions and evidence

The Council contended that the application should be refused due the excessive height which was contrary to the newly established maximum height control in cl 4.3 of the LEP and the desired future character of the KNP.
It was also contended that the request did not adequately address cl 4.6(3) nor demonstrate that the proposed development will be in the public interest.
The LEP maximum height of buildings is 33m which sets the desired future character of the KNP. The proposal seeks a building, as amended, with a height of up to 37.75m, a significant exceedance of Council's recently gazetted height controls.
This desired future character in terms of building height was re-enforced by the Council's rescission of the 7 August 2017 resolution and the adoption of Part E4 in its current form on 18 December 2017. Clause 9(i) of Part E4 reiterates the 33m height maximum. The proposal also does not meet objective A for building heights in clause 9 of Part E4.
The excessive height would cause unacceptable overshadowing to properties in Regent Street and contribute to the overwhelming bulk and scale of the development when viewed within the KNP and along Princes Highway. Mr Gosling argued that, in an area undergoing transition, the height exceedance would be visually prominent including from new compliant development in the KNP.
The Council contended that the design features did not justify the height exceedance. Furthermore, the achievement of the maximum FSR is not a right and did not justify the exceedance, maximum yield may only be realised on sites that are of sufficient width, and height exceedances to achieve yield are not contemplated in Part E4 of the DCP.
In urban design terms, Ms Morrish considered that relocation of FSR lost by moving massing from the podium level to the roof as a partial floor over the height limit was not justified. The DCP contemplates that, if the amalgamation pattern is not achieved, it may not be possible to achieve the maximum FSR. She also did not agree with Mr Darroch that a long tower stretching over all of the lots under an amalgamation scheme would result, as the DCP has objectives to break building form which would likely result in a building required to achieve this.
Ms Morrish disagreed that the rooftop apartments constituted a roof feature as they were expressed as an upper floor of habitable space. She also did not consider there was justification to relocate FSR to the roof simply to maximise the density on the site as this would create a precedence which would undermine the intent of the new controls. She did not consider there was any urban design benefit in providing the rooftop apartments.
Ms Morrish did support additional quality rooftop communal open space given the size of the development and the fact that the ground level area would be overshadowed when adjoining sites were redeveloped.
Mr Gosling also argued that the rooftop apartments reduced the opportunity for sufficient rooftop communal open space for the size of development proposed. Removal of these apartments would facilitate substantially more communal open space in this location to a more appropriate level to service over 100 apartments. Treatment of this open space could also screen the lift overrun.
Mr Gosling disputed that complying with the height limit would result in an intensity of development which thwarted or undermined the objectives of the R4 zone.
The DCP states that, for sites to optimise yield, they must have a minimum site frontage of 60m. Mr Gosling argued it was therefore clear that it is unlikely that an FSR of 4:1 or potentially the maximum height of 33m was achievable on sites with a frontage of less than 60m, such as the appeal site. It is for this reason that the DCP identifies that the appeal site should be amalgamated with the isolated site to the east to create one development site meeting this minimum site width requirement. If the appeal site had been amalgamated with the site to the east, additional floor space could have been available above the third level to the eastern boundary.
Mr Gosling argued that, as the appeal site does not meet the minimum frontage control, nor provide the amalgamated site as identified in the DCP, it should not assume entitlement of either an FSR of 4:1 or a maximum height of 33m. However, it seeks to achieve close to the maximum FSR and to exceed the height limit. It was the non-amalgamation with the isolated site that meant the development potential of both sites was reduced and the FSR maximum for the appeal site could not be achieved without a height breach.
The Council referenced the decision of the Court in Four2FivePty Ltd v Ashfield Council [2015] NSWLEC 1009 where the environmental planning grounds identified in the written request included the public benefit arising from the additional housing that would be delivered on a site which, similar to the appeal site, was in close proximity to a railway station and town centre. At [60], Commissioner Pearson stated: 60. I accept that the proposed development would provide those public benefits, however any development for a mixed use development on this site would provide those benefits, as would any similar development on any of the sites on Liverpool Road in the vicinity of the subject site that are also in the B4 zone. These grounds are not particular to the circumstances of this proposed development on this site. To accept a departure from the development standard in that context would not promote the proper and orderly development of land...
Mr Gosling argued that, consistent with the Court's findings in Four2Five, it was not a sufficient ground that additional housing would be delivered by a development that contravened a development standard. In his view, removing the 4 apartments and complying with the height limit would still achieve the objectives of the R4 zone with over 100 apartments developed on the site.
Dr Berveling, counsel for the Council submitted that, irrespective of the history of the controls, they exist and have a planning purpose. Further, that all of the proposed top floor exceeded the maximum height limit. If the rooftop apartments were removed so that the residential floor space in the RFB at least was height compliant, he calculated the development would still achieve an FSR in the order of 3.76:1. This was not significantly less than the maximum permissible of 4:1 and exceeded the 3.58:1 FSR achieved in the RFB concept scheme for the adjoining isolated site, which all experts agreed was an efficient and economic development of that site.

Findings

The appeal before the Court is one of the first applications for higher density development to be determined in the Kogarah North Precinct under the new controls. The development will influence the future character of the Precinct based on controls introduced through an LEP amendment and informed by new DCP controls preceded by an Urban Design Study.
In rezoning the KNP for higher density development, two key development standards were introduced into the LEP; FSR and height. The application before the Court seeks to develop, in essence, as close as possible to the maximum of one control, FSR, and beyond the maximum of the other, height. This is despite not meeting a specific DCP control to first amalgamate with an adjoining site to achieve an increased site frontage in order to maximise yield from development of the site.
In order to gain consent to breach the height control, the requirements of clause 4.6 of the LEP must first be met. This includes that compliance with the standard is either unreasonable or unnecessary in the circumstances of the application.
In Wehbe v Pittwater Council [2007] NSWLEC 827, Preston CJ noted that achieving the objectives of the development standard notwithstanding non-compliance with the standard was the most commonly invoked way of establishing that compliance with a development standard was unreasonable or unnecessary as required by cl 4.6. However, other ways were that the underlying objective or purpose is not relevant to the development; that the objective would be defeated or thwarted if compliance was required; that the development standard has been virtually abandoned or destroyed by the Council's own actions in departing from the standard; or that the zoning of the land is unreasonable or inappropriate.
It was accepted by the Council that the zone objectives were met, but not the objectives of the height standard or that the cl 4.6 request for the height breaches associated with the rooftop apartments demonstrated sufficient environmental planning grounds to justify these breaches.
For the reasons that follow, and largely for the reasons put forward by the Council, I agree with the Council that there are insufficient planning grounds to support the height breaches associated with the rooftop apartments, and the clause 4.6 request to allow these breaches should not be upheld.
Whilst I accept that the development meets the objectives of the zone, the applicant's primary argument for the rooftop apartments was that it was important that the site deliver the maximum density possible, by maximising the permissible FSR, in order to achieve the planned residential density for the KNP.
However, the FSR standard sets a maximum permissible FSR not one as of right nor necessarily desirable in all instances given requirements to minimise adverse impacts for future occupants and neighbours and, of specific relevance to this site, subject to a DCP requirement to amalgamate sites to optimise yield. As the site could not be amalgamated, the onus is on the applicant to demonstrate why even the maximum permissible height and FSR are justified on the site. Instead the application seeks to exceed one of these standards, in order to try and maximise permissible floor space (yield) under another.
The applicant's experts agreed that the development should be setback as proposed from the western boundary and that setbacks should comply with ADG separation distances to facilitate future development of adjoining properties. They also agreed that the tower needed to be setback from the rear (lane), proposed in the amended application, in order to ensure reasonable amenity and reduce the visual bulk impacts to the lane. Therefore, providing these setbacks is not justification to relocate floor space to the roof instead, resulting in a total new level of residential floor space above the height limit. Nor does it achieve a better planning outcome as the setbacks would be required in any event for a height compliant development.
Similarly, dedication of the land required for the widening of Stanley Lane is a DCP pre-requisite for RFB development. Accordingly, it does not justify the non-compliant height. The same can be said for the high quality design, interesting roof form and providing rooftop communal open space. These are also outcomes sought by the DCP in the KNP. Accordingly, complying with these requirements is necessary even with height and FSR compliance.
The Council is prepared to accept a nil podium setback to the eastern boundary and height breaches to accommodate quality rooftop communal open space and the lift overrun to access it, notwithstanding this is one of the first RFB applications to be determined in the KNP under the new controls and the potential precedent this would set. In doing so, the Council accepts that there are sufficient environmental planning grounds to do so and that the pre-requisites under cl 4.6 for these height breaches are met.
The Council considers however, and I agree, that there are insufficient planning grounds to also allow an additional level of apartments to exceed the maximum height. Nor do I accept, on the evidence, that this would be a better planning outcome.
As Mr Gosling pointed out, if the applicant was concerned with providing an additional 4 apartments to maximise dwelling yield (having regard to the strategic basis of the KNP), then a number of the proposed 104 units on lower levels could be made smaller and an additional 4 apartments provided on these levels, compliant with the 33m height limit.
Additionally, as Commissioner Pearson found in Four2Five, providing increased housing supply in accordance with the zone objectives and a site's strategic location is not of itself sufficient basis to exceed a development standard. Increased housing supply, in this case over 100 apartments, will still be achieved on the site. The loss of 4 out of 108 apartments is unlikely to materially impact the achievement of that objective. As indicated, a greater yield could also be achieved by providing some smaller apartments which would not materially impact the future population of the KNP.
The minimisation of amenity impacts on neighbours is also not a sufficient basis to allow the breaches sought. In this regard, on the solar access plans provided, there would likely be some overshadowing on properties to the south caused by the additional building height. Without a full analysis of this impact on future RFBs that may be developed on the impacted sites, the evidence on the degree of impact was inconclusive. However, Mr Dickson conceded there would be additional overshadowing to properties to the south, albeit he argued this would be minimal and limited to after 2pm in midwinter.
An objective of the standard is that the development height minimises adverse impacts on adjoining properties. This does not mean minimising only adverse impacts from height breaches. The fact that adverse impacts caused by height breaches may be minimised is not the test. A compliant height has to minimise adverse impacts. A building that not only breaches the height but with a resultant adverse impact, however minor, cannot, in my view be said to meet the standard's objective.
Therefore I do not accept the applicant's argument that the objective is satisfied if the breach minimises the impacts. Both additional overshadowing and some visual impact arise from the non-compliant building height. Even if these adverse impacts are minimal or minimised, given they arise from the breach of the standard when such impacts don't arise from a compliant proposal, it cannot be said that the intent of the objective is achieved.
Another objective of the standard is that, through the height control, an appropriate scale and intensity of development is achieved for the KNP. Therefore breaching that control without any atypical site constraints (other than the inability to amalgamate), and where it is not as a consequence of the imposition or adoption of onerous or atypical design requirements, is not justified when it results in a building of greater scale and intensity of development than would otherwise be achieved by compliance with the standard. I am therefore not satisfied that this objective has been met.
The cl 4.6 request relied heavily on the proposed development being a superior outcome to what may be achieved if the site was amalgamated with the isolated properties to the east and developed in accordance with the DCP. However, there was insufficient evidence before the Court that this was the case.
The request did not contain diagrammatic information to demonstrate this and the conclusions reached in the cl 4.6 could therefore not be relied upon. Whilst Mr Darroch indicated in oral evidence that he had prepared sketches to show this, that information was not provided to the Council or considered by the experts in their joint report. Providing evidence from the witness box on a scheme Mr Darroch had sketched up but not provided to the Council nor filed with the Court is not appropriate to demonstrate these assertions. Had the applicant intended to rely on this argument, schemes demonstrating this should have been provided to the Council and the Court prior to the hearing, and ideally be included in the cl 4.6 request where the assertions are stated but not demonstrated.
Furthermore, whilst it may be the case, as Mr Darroch contended, that a compliant RFB under an amalgamated scenario in accordance with the DCP would result in more adverse impacts given the probable length of the building, this was not accepted by Ms Morrish. It presumes a form of development on the amalgamated site, and adopts various assumptions associated with it, which may not have resulted or been approved.
It is also not up to the Council to have to demonstrate a better outcome is achieved from their controls.
If the cl 4.6 request was upheld on this premise, it would suggest that the controls in the recently adopted DCP, based on an Urban Design Study, which require an amalgamated site and a compliant development form on it, would result in an inferior planning outcome. That is not a position I accept on the evidence provided.
I also do not accept that it is a "burden" on the applicant to comply with new controls which permit redevelopment of the site significantly beyond what was previously permitted but subject to compliance with a number of "pre-conditions" and LEP controls and general compliance with the ADG. The requirements are not onerous and have regard to a number of factors including the topography in the KNP and the need to retain amenity in an area which will undergo substantial transition to higher density living.
Those same controls also enable development that does not meet a pre-condition of amalgamation but with the inference that the maximum height and FSR may therefore not be achievable, as the height exceedance sought in the application, and the schemes for the isolated site, demonstrate.
I have sympathy for the fact that the applicant could have received Council approval for the original application which proposed a similar height, based on the Council resolution in August 2017 to allow height breaches up to 40m, but had to amend the application after the rescission of that decision in December 2017. However, there was never any guarantee of that approval or of the conditions that may have attached to it. In any event, the Court is required to assess the application in accordance with the controls that apply, the basis for those controls, and the justification for any departure from them.
On the basis of those controls, and the evidence before me, I do not consider it appropriate to set aside one of the core development standards introduced to guide development in the KNP, namely its height, simply to achieve more floor space. The LEP development standards would serve no purpose if one standard could be set aside in order to maximise development potential permitted by another. The standards work together to inform the desired future bulk and scale rather than in isolation where one is preferred over another.
It may be that there is a tension between the height and the FSR standards. However, both set maximum development standards and compliance with both is required even if it means the maximum of one or both standards may not be achieved unless there are sufficient grounds to set the standards aside on a case by case basis. Application of cl 4.6 is by exception and should not be used on the basis of a general presumption that height breaches should be accepted in order to maximise the density achievable in the KNP.
If I was to accept that the underlying objective of both the height and FSR standards was to achieve the maximum density (ie. FSR) in all instances in the KNP irrespective of the height breaches, then the height standard may as well be abandoned and the height standard objective of achieving a scale and intensity of development that reflects a 33m maximum height limit also abandoned. I am not prepared to support that outcome as a better planning outcome for the Precinct.
I do not read the strategic intent of the KNP, and the associated controls in the LEP, DCP or UDS, to be that FSR is to be maximised at the expense of height if necessary. If this were the case, no maximum height control would apply, the height standard has no work to do, and the new controls collectively fail.
I therefore do not accept Mr To's submission that objective c) of the height standard means ensuring the maximum density permitted by the LEP, subject to minimising impacts, irrespective of the height consequences.
It suggests that the planned density permitted by the new controls and zoning of the KNP equates to the number of sites in the KNP multiplied by the maximum permissible FSR. I do not accept this.
Irrespective of whether or not maximum FSRs are achieved across the KNP, there will be a significant increase in dwelling supply with sites redeveloped from the single dwellings that exist today to RFBs up to 33m in height. I am therefore not persuaded that complying with the height control will have any material impact on the KNP achieving the strategic objective of a substantial increase in housing supply. The planned density is not quantified and, as I have indicated, it could never be assumed (in any precinct) that all developments will achieve the maximum FSR and therefore the maximum possible density.
The strategic intent for the KNP is to facilitate redevelopment from low to high density residential built form with development compliant with the controls and exceeding base design standards. This would be the result of an RFB on the site compliant with the controls.
Furthermore, if a development which does not meet a pre-requisite of the DCP in order to maximise the development potential of the site, namely by amalgamating, can still maximise the development on the site by exceeding the height standard, it would set a poor precedent. Other sites similarly required to be amalgamated in the KNP in order to achieve an appropriate site frontage to be developed to the maximum permissible FSR and height under the LEP would therefore have little incentive to amalgamate, and the amalgamation provisions would also have little work to do.
Over 100 dwellings will be delivered where 5 exist today. That in my view reflects delivering on the strategic intent. The fact that 104 dwellings are delivered rather than 108 will not undermine achieving the strategic intent of the KNP but rather can be viewed as an appropriate outcome given the site frontage is not of the width required by the DCP in order to maximise its development yield.
Irrespective of the history of the controls, they exist and have arisen from a planning process, involving a Housing Strategy, Urban Design Strategy, LEP amendment and new DCP controls, all the subject of community consultation and Council consideration. Development in accordance with the resultant controls is not therefore in my view an unreasonable requirement and there is nothing so unique about the site that suggests they should not apply.
If the Council were concerned that the planned density would not be achieved with the FSR and height controls in place then they have had the opportunity to amend the controls in the LEP. They have not sought to do so nor is there any evidence before the Court that they are required to do so by the State Government to achieve greater housing supply.
In summary, if the height breaches sought are upheld, they would allow an additional storey of residential development on the overriding argument that it is a better planning outcome not only for the site but for the KNP. It would enable the applicant to maximum FSR notwithstanding height breaches and without amalgamation as the DCP requires. I do not consider this a better planning outcome or an appropriate exception to a core standard. Further, the specific objective of the height standard, that the scale and density of new development in the KNP reflect a maximum height of 33m, will be thwarted.
The Council advised that this appeal is one of the first of a number of applications before the Court and the Council where variations to the height and/or FSR controls are proposed. It is therefore important that due regard is had to the applicable controls which will have a consequential impact, and largely determine, the future character of the KNP. As I have already determined, maximising the FSR is not the overriding consideration as the applicant contends. It is a maximum development standard which may be achieved if the other core standard, height, is also met along with associated DCP and design controls.
In conclusion, I am not satisfied, for the reasons which I have given, that allowing the height exceedance in order to achieve in essence the maximum FSR on a site that is not amalgamated as required by the DCP provides a better planning outcome. It would set an undesirable precedent not only for allowing the new height control to be breached but in not requiring sites to be amalgamated as required by the DCP in order to optimise yield.
Accordingly, the cl 4.6 is not upheld for the residential floor space proposed above the height limit and consent cannot be granted to the application in that form.
This does not however, mean that the development without the additional rooftop apartments should not be supported.
The experts worked extensively in an endeavour to resolve all of the contentions raised with the application. The applicant amended the application in response. Ultimately the only fundamental difference between the parties was the acceptability of 4 of the 108 apartments proposed, being the rooftop apartments given their resultant height breach.
The agreed conditions of consent, should I make a finding that the height breach to support the 4 rooftop apartments could not be justified, include a deferred commencement condition requiring these apartments to be deleted and replaced with additional communal open space. In this regard, the applicant indicated that this would be a preferred outcome to the appeal being dismissed and the application refused.
The Council supports the height breaches required in order to provide additional quality rooftop communal open space and reasonable access to it. Support to those breaches alone is a benefit to the applicant when the Council could also have argued that these elements should be provided within the 33m height limit. However, given the history of controls for the site and of the merits of the application seeking those breaches, on balance and on the basis of the cl 4.6 submitted, I also agree that requiring compliance with the height standard is unreasonable and unnecessary for these elements.
In this regard, the submitted cl 4.6 request for these elements provides sufficient planning grounds to allow the breaches. Additional quality communal open space will not only provide additional amenity to future occupants which would not otherwise be provided but will also not have the built form impact in terms of bulk, scale and overshadowing that the rooftop apartments would have. The clause 4.6 request for height breaches associated with the expanded rooftop communal open space, and the lift to access it, is upheld and the application approved on this basis accordingly.

Orders

The orders of the Court are: 1. Leave is granted for the applicant to rely on amended plans. 2. The applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The clause 4.6 variation request for breaches to the height standard to enable four rooftop apartments is not upheld. 4. The clause 4.6 variation request for breaches to the height standard to enable rooftop communal open space, and lift access to it, is upheld. 5. The appeal is upheld. 6. Development Application DA111/2017 for the demolition of existing buildings, amalgamation of lots and construction of a residential flat building at 70-78 Regent Street, Kogarah is approved subject to the conditions in Annexure A. 7. The exhibits are returned except for Exhibits A, B, C, 2 and 3.

Jenny Smithson Commissioner of the Court Annexure A (C)

Amendments 24 July 2018 - Adjusted images sizes and corrected typographical error at [36]. 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: 24 July 2018

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