Ridong Jinwei Pty Limited v Ku-ring-gai Council

The site 4This site is located on the southern (low) side of Dumaresq Street, to the west of the Gordon Centre shopping complex and opposite the council chambers car park. It is of an irregular shape with a street frontage of 82.56 m and total area of 4658 sq m. 5The surrounding area includes a mix of low, medium and high-density residential development to normal south and west of the site. Commercial development is located to the east and north mixed of the site in the Gordon commercial centre.

The modifications 6The proposed modifications are described as:

• Internal floor layout changes to the basement and residential levels above in both Building A and B combined with external facade changes to the building
• Air-conditioning; The centralised air conditioning areas to both Building A and Building B have been deleted. Individual air conditioning units have been provided on the balcony to each unit in the development.
• External facade changes including window and balcony changes required to accommodate the 8 additional units.
• Changes to the outer walls of the basement and floor layout changes (the footprint of the basement remains within the footprint of the development above ground).
• Increase of 8 units and change of unit mix as follows:
• Approved DA0847/08 (Appeal 11312 of 2008) Mod0175/11 (Appeal 11005 of 2011) Building A Building B Total Building A Building B Total 5x1 bed 9 x 1 14x1 bed 14x1 bed 14x 1 bed 28 x 1 bed

bed 19x2 bed 21x2 bed 40 x 2 bed 17x2 bed 20 x 2 bed 37 x 2 bed 2 x 3 bed 2 x 3 bed 4 x 3 bed 0 x 3 bed 1 x 3 bed 1 x 3 bed Total: 26 units Total: 32 Units 58 units Total: 31 units Total: 35 Units 66 Units Adaptable residential units included: 6 Adaptable residential units included: 7 Total: 58 units Total 66 units

Planning controls 7The site is subject to the following controls. i KPSO - LEP 194 ; The site was originally zoned Residential 2(c) under the KPSO. Then on 28 May 2004 LEP 194 was gazetted, rezoning the site to Residential 2(d3), under which 5 storey residential flat development is permissible. ii SEPP 65 ; This Policy applies to development involving the erection of a new residential flat buildings ...The stated aims and objectives are: (1) This Policy aims to improve the design quality of residential flat development in New South Wales. (2) This Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design. (3) Improving the design quality of residential flat development aims: (a) to ensure that it contributes to the sustainable development of New South Wales: (i) by providing sustainable housing in social and environmental terms, and (ii) by being a long-term asset to its neighbourhood, and (iii) by achieving the urban planning policies for its regional and local contexts, and (b) to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define, and (c) to better satisfy the increasing demand, the changing social and demographic profile of the community, and the needs of the widest range of people from childhood to old age, including those with disabilities, and (d) to maximise amenity, safety and security for the benefit of its occupants and the wider community, and (e) to minimise the consumption of energy from non-renewable resources, to conserve the environment and to reduce greenhouse gas emissions. In order to satisfy these aims and objectives, the Policy contains a number of Design Quality Principles .

The evidence 8The following evidence was presented: * Individual and joint planning reports by Mr R Olsson (Urban design consultant for council), Mr B Newbold (Urban design consultant for the applicant) and Ms R Hosche (Council's executive assessment officer). * Access statement by Mr M Relf. * Revised calculations modified areas by Mr R Kudinar - Kwee (Architect for applicant). 9The threshold matter in this appeal concerns the resolution of whether the modified application relates to substantially the same development as originally approved. This resolution depends on the facts and degree of the modifications and accordingly, I have considered the various modifications initially to assess the cumulative effect so as to then answer the threshold question. 10According to Mr Newbold, the primary purpose of the modifications is to address the emerging market demand in Ku-ring-gai for generously proportioned 1 bedroom apartments that are located close to town centres and stations. Secondly, the proposed modifications are to rationalise internal layouts and building structure and provide for more efficient utilisation of the approved building envelope. 11Consequently, the rationalisation of the design involves infilling the approved front recess area on Building A to allow the modified floor plans incorporating new balconies substantially within the approved building envelope. 12In support of the application, Mr Newbold says the application does not propose to modify the following elements which were considered critical in the original development: Setbacks, landscaped areas and deep soil; Conservation of significant trees and proposed landscaping which incorporates an indigenous character; Dimensions of building footprints and above-ground floorplates; Separation distances between the two approved buildings; Heights and profiles of the two approved buildings; Dimensions of communal areas which include entrances and residential lobbies, lifts and stairs, and the communal open space; Primary orientations for dwellings; General size and amenity of dwellings; Architectural design of facades which incorporate a variety of well-proportioned elements in order to promote compatibility with character of the surrounding area. 13Against this, Mr Olsson is concerned that the site is a prominent one in proximity to the public space around the council chambers and therefore requires a high design quality incorporating reasonable articulation of the street façade. In this regard, he does not consider the infill balconies within the recessed wall area with partially enclosed by vertical grilles achieve a satisfactory outcome. Furthermore, he is dissatisfied with the internal amenity of a number of the new units and does not support the application. 14Insofar as a number of other design elements were raised as contentions such as the change of the balustrade specification to opaque glass and also the location of individual air conditioners on each balcony, I note the applicant's agreement to retain the original clear balustrade specification and centralised location for the air conditioners.

Built form and Streetscape 15According to the contentions, the following SEPP 65 design principles are relevant in this regard: Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Principle 10: Aesthetics Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area. 16Accordingly, the overall effect of the modification is for: * 1 X bed units; an increase from 14 to 28 = +14 * 2 x bed units; a decrease from 40 to 37 = (3) * 3 x bed units; a decrease from 4 to 1 = (3) 17With regard to the built form and streetscape issues, these modifications typically involve the introduction of 3 x 1 bed units (approx areas of 60 sq m) in lieu of the original 2 x 2 bed units (approx areas of 88 sq m), which then require addition balcony area, within the original setback. This is shown by reference to a typical floor plan, such as Building A - Level 3. 18The original consent allows 4 units along the northern elevation and the modification now is for the area of the middle units A304 and A305 (2 bed & 88 sq m) to be converted to 3 x 1 bed units with an area of approximately 60 sq m each. This conversion requires the infill of the recessed front wall façade to enable balconies of 10 sq m (approx) for each of these 3 new units. The original design includes fixing a vertical coloured panel to the wall recess adjacent to units A304/305 to accentuate the articulation of the front façade. 19A consequence of the proposed modification is that the inclusion of the balconies necessitates the removal of the coloured panel and replacement with a set of coloured vertical grilles, each separated by approximately 500mm. This results in a partial enclosure of the balconies and a different street presentation. 20Mr Olsson says that as the site has a relatively long 82.5m frontage to Dumaresq Street, the façade requires " a substantial amount of articulation, a harmonious composition of façade elements and the concealment of unattractive service items ". 21According to Mr Olsson, this outcome is not achieved by the modification because it significantly detracts from the approved "floating boxes" theme, which presents clear, horizontal balconies framed into distinct bays separated by the solid panel resulting a more cohesive street presentation. In particular, he is dissatisfied that the modified street elevation will have an unbroken stretch of balconies 32 m long, which does enhance the development. Furthermore, he considers the amenity of the modified balconies severely compromised. 22However, Mr Newbold says that the articulation benefits of the recessed wall are likely to be limited in the context and not readily discernible. Instead he says that more importantly from most vantage points along Dumaresq Street the predominant contributors to articulation would be the 12m separation between Buildings A and B, which will be accentuated by canopy landscaping, as well as the indented undercroft and setbacks for the penthouse levels. This limits the height and scale of the framed balcony elements to 3 storeys, which he considers results in an acceptable streetscape presentation. 23Another design modification, which impacts on the streetscape, is to the balcony configurations in Building B, which arise due to the internal reconfiguration. It is proposed to introduce new balconies on the western elevation to replace bedroom windows. On the eastern side the mainly rectangular balconies are reconfigured to an irregular 'L' shape. 24According to Mr Newbold, these modifications involving the substantial replacement of masonry area with glass, 'lightens up' the appearance of the structure creating an acceptable streetscape presentation. 25Insofar as I acknowledge that this modification improves sunlight access to the units, nevertheless it seems to me that these modifications change the symmetry and overall design theme presented by the 2 building cells on the site. Accordingly, I do not consider this change improves or enhances the existing buildings symmetrical design street presentation, as stated by Mr Olsson. 26In assessment of the disparate opinions on urban design, I have considered the proposed modified elevations with the original approval, together with reference to the photomontages and undertaken a view. It is apparent to me that the original approval does convey the 'floating boxes theme', which is accentuated by the articulation of the façade, the recessed area between the 2 main building components and the set of solid coloured panels. 27Taking into account the local context and the relatively long street frontage, I consider the streetscape presentation of the original is superior, in terms of the good design principles, as stated by Mr Olsson. I agree with his opinion that the replacement vertical grilles that appear to "cage" the middle balconies, are an unusual feature in the overall design and would likely detract from the building form consistency and its streetscape presentation. 28Likewise, I consider the amended balcony designs in Building B disrupt the overall design theme and consequently this is a negative element of the modification. Internal amenity 29As noted, the reconfiguration of the approved floor plate to add more 1 x bedroom units raised contentions regarding adequacy of room sizes, orientation, balcony utility and solar amenity. The contentions refer to the following RFDC design principles: Principle 5: Resource, energy and water efficiency Good design makes efficient use of natural resources, energy and water throughout its full life cycle, including construction. Sustainability is integral to the design process. Aspects include demolition of existing structures, recycling of materials, selection of appropriate and sustainable materials, adaptability and reuse of buildings, layouts and built form, passive solar design principles, efficient appliances and mechanical services, soil zones for vegetation and reuse of water. Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 30By reference to the typical floor plan for Building A, Level 3, the following changes are proposed within the area covered by A304 and A305: ORIGINAL MODIFICATION A304; 2 Bed/ 88 sq m A304; 1 Bed/ 60 sq m A305; 2Bed/88 sq m A305; 1 Bed/56 sq m A306;1 Bed/60 sq m

31Mr Olsson is dissatisfied with likely amenity of the modified units because: * More modified units have a single aspect (i.e. 24 out of the total 66) and depths exceeding the maximum depth of 8m specified in RFDC, including the 304/305 type units that have an internal kitchen wall approximately 8.6m from a window. * The bedrooms in the 305 type units have a width of 2.9m, which is below the prescribed RFDC minimum width of 3m. * The width of the living rooms in the 305 type units is 3.2m, which is below the preferred minimum 4m width and consequently comprises furnishing opportunities and convenient circulation. 32Whilst Mr Newbold considers the relative level of the modified units as comparable to the original, nevertheless when the good design principles are taken into account, I am satisfied to rely on Mr Ollson's opinion that the modified and comparatively smaller units will have reduced amenity, particularly with light access, furnishing opportunities and convenient access within the smaller 58 sq m units. Therefore I think that this is a negative aspect of the modification. 33The aforementioned modifications also necessitate changes to the balcony configurations. Insofar as the modified plans show that some of the 2-bedroom balconies are less that the preferred minimum 12 sq m and some of the 1-bedroom are less than 10 sq m. Nevertheless, Mr Newbold says that further minor alterations could be undertaken to bring them up to the minimum design controls. 34Notwithstanding this, the primary part of the type 304, 305 balconies are adjacent to the bedrooms, which are accessed by the narrower 1.2 m section of the balcony. In my assessment, the amenity of these balconies is materially compromised in the modification proposal and the enclosing grills, which are an unusual feature in the locality, further exacerbate this. Solar amenity 35In addition to introducing more single aspect units, the reconfiguration of the floor plate has changed the solar access opportunities. Whilst some design adjustments were discussed during the hearing, the outcome is that the modification results in 61% of the units achieving the 3 - hour direct sunlight access RFDC criteria. This compares with 62% in the original consent. The change however means that 4 out of the 8 new units fail the criteria. 36This outcome does not satisfy the RFDC 'rule of thumb' that living rooms and private open space areas for at least 70% of the apartments should receive a minimum of 3 hours of direct sunlight between 9am and 3pm in mid winter. I do not consider this degree of variation desirable, particularly in the scale of development proposed.

Unit Mix 37The following design principle deals with unit mix. Principle 9: Social dimensions and housing affordability Good design responds to the social context and needs of the local community in terms of lifestyles, affordability, and access to social facilities. New developments should optimise the provision of housing to suit the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community. New developments should address housing affordability by optimising the provision of economic housing choices and providing a mix of housing types to cater for different budgets and housing needs. 38As noted, the modification significantly increases the number of smaller 1 x bedroom units to 42.4% and the 3 x bedroom units are now reduced to 1.5%. By reference to Principle 9, Mr Olsson says that modification represents an imbalance in this relatively large development. 39Against this, Mr Newbold says that the increase in 1 x bedroom units has been influenced by the applicant's market research, which confirms a high level of demand for the smaller size units. 40However no substantive evidence was presented to the Court to confirm the proposed demand. Instead, the Court was informed that detailed consideration was given to the original mix of units in the context of the Gordon locality and market. Accordingly, I do not consider there was any compelling evidence submitted which would justify the significant change in unit mix. Taking into account the presentation of other completed unit developments in this locality and the general socio - economic factors in Gordon where some existing residents are likely to down size, I consider the original unit mix, including the 3 additional 3 x bedroom units, best satisfies the Principle 9 objectives as stated by Mr Olsson.

Car Parking 41This issue concerns the amenity arising from the reconfiguration of the 2 separate basement car parks. Whilst the original consent provided 83 spaces, the modification proposes 84, of which 25 are in the basement of Building B. Considering that this building contains 35 units, Mr Olsson says the lack of spaces for each unit creates a poor level of amenity for the occupants of this building.

Conclusion 42For my determination of this s 96 appeal, I have considered the primary question of whether the modified application is substantially the same as the original development, the objections and the relative merits of the modifications. Insofar as the modification is to increase the number of units by 8, I accept that the changes are predominantly contained with the approved building envelopes. Substantially the same 43In response to the first question, both Mr Eastman and Mr Drury refer to the findings in a number of oft-cited cases dealing with this question. This includes the matter of Moto Projects (No 2) Pty Ltd v North Sydney [1999] NSWLEC 280 where Bignold J said: 54 The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 44Reference was also made to North Sydney Council v Michael Standley & Assoc [1998] 43 NSWSC 163, wherein it was confirmed that the 'substantially the same' point is to be regarded as a facultative, beneficial provision. 45In addition to this, Mr Eastman referred to a number of other merit cases dealing with this question including: Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110, involving an increase from 76 to 102 units; Change in the unit mix from 62 x 2 bedroom and 14 x 3 bedroom to 3 x studio, 29 x 1 bedroom, 66 x 2 bedroom and 4x3 bedroom; increase in parking and external changes to the building to reflect reconfigured room layouts, window and balcony locations etc and associated reduction in unit floor areas to contain the buildings within the same footprint, setbacks, heights and floor space. In this case the "substantially the same development" points was raised and Morris C at [34] concluded: "Having considered the quantitative and qualitative changes, I do not consider the changes to the building design, apartment mix, number of dwellings and carparking spaces are such that the final built form, in terms of its scale, bulk, appearance or use would not be substantially the same as that approved under the consent, nor do I have sufficient evidence that the size/quality of the units as put by the council, were an essential element of the approved development."; 46I understand from these cases that the Court is to be satisfied that by comparison of the amended proposal with the original consent that the modified development is "essentially or materially" the same. 47On this basis, I am satisfied to rely on the applicant's submissions the modified development does relate to substantially the same development because: * The development remains essentially the same residential flat building with basement car parking and landscaping. * Whilst the modifications result in an increase of 8 units nevertheless they are substantially contained within the approved building form, particularly the footprint and overall height envelope and cause similar, although quantitatively different, impacts to the original application. * Whilst there is a change in amenity in terms of external visual impacts and internal elements, I think the classification of the modified proposal in a qualitative and quantitative sense is that it remains as substantially the same development with the particular modifications being amenable to a further s90 merit assessment.

Merit considerations 48In this matter, one of the main planning instruments to be considered is SEPP 65, dealing with RFB design quality and the associated design code (RFDC). In considering the relative merits then, I note initially that the applicant has conceded that the clear glass balustrades (framed if necessary) will remain, as will the centralised location of the air conditioner units, rather than the modified locations on individual of the proposal. Balconies. I accept that these concessions overcome some negative aspects. 49The most obvious modification concerns the changed front façade due to the additional 8 smaller 1 x bedroom units, which necessitate infilling part of the front setback area of Building A by way of the infill balconies, which are to be partially enclosed by the separated vertical grills and the change to the other balconies in Building B. 50It is apparent to me that this design change together with balcony changes interrupts the rhythm and balance of the external appearance because the separated grills have reduced street setback with a noticeably different street presentation to the other approved coloured panels on Building B. In this regard, I agree with Mr Olsson's opinion that these balconies are inferior to the original approval because they compromise the balance of horizontal and vertical elements in the front elevation. 51The RFDC for good design lists a number of details for better design practice and considering the context of the sites relatively large street frontage of 82m, therefore, the modulation of external walls is desirable element but the modification removes this. Also, I consider the modification detracts from the design theme of well defined 'floating boxes' referred to by Mr Olsson. 52In this regard, I am unable to accept Mr Newbold's further suggestion that an alternative approach would be to setback the infill balconies to express the framed balcony elements. Accordingly, I do not consider the modified front elevation adequately satisfies the RFDC objective for "facades which define and enhance the public domain and desired street character ." Unit mix and design 53According to Mr Newbold, the modification arises in response to council's policies to expand housing choice and affordability. The modification apparently results in a more cost-effective outcome. 54The RFDC has the objectives: * To provide a diversity of apartment types, which cater for different household requirements now and in the future. * To maintain equitable access to new housing by cultural and socio-economic groups . 55The associated better design practice guidelines include: * Provide a variety of apartment types between studio-, one-, two-, three- and three plus-bedroom apartments particularly in large apartment buildings. Variety may not be possible in smaller buildings, for example, up to six units * Refine the appropriate apartment mix for a location by considering population trends in the future as well as present market demands noting the apartment's location in relation to public transport public facilities, employment areas, schools and universities and retail centres 56Having considered the evidence and submissions it appears to me that detailed consideration was given to the question of unit mix originally. It is apparent that the consent provides a reasonable mix of units, including 14 x 1 bedroom and 4 x 3 bedroom. However the modification significantly changes the unit mix to 28 x 1 bedroom and 1 x 3 bedroom units. But I do not consider there was any substantive evidence presented along the lines of the aforementioned 'market trend and demand' studies. 57It seems to me that in the context of the sites close proximity to the Gordon town centre, it is likely some existing residents will relocate from large houses and create the demand for some 3 x bedroom units. I am not satisfied that the proposed unit mix responds to the better design practice for the subject location and I do not accept that the ability to sell cheaper units justifies the proposed modification or in the overall public interest. Amenity 58The modification results in an incremental change to a number of amenity considerations. It is apparent to me that the redesign to fit in the additional 8 units results in a "tightening" of a number of the design considerations. 59As I have mentioned the A305 type units have bedroom widths of 2.9 m, which is below the preferred 3 m minimum. Also the living room of 3.2 m is below the 4 m minimum in a number of units. Coupled with this, these units have minimal, irregular shaped balconies and are also subject to the partial enclosure by the vertical grills. Accordingly, I rely on Mr Olsson's opinion that these units and balconies are of diminished amenity. 60In my assessment, the minimum design guidelines in the RFDC have become the maximum in this case with several units still not complying and I do not consider this a satisfactory outcome in a new development of the subject scale. Considering the number of non - compliances with RFDC guidelines, I do not accept Mr Newbold's description that the proposal results in generously proportioned 1 bedroom units. 61I also consider the internal amenity of more of the units is compromised by increase in single aspect units (24 out of 66), including the smaller type 305 units with access to daylight in these units having internal kitchen walls is in excess of 8 m from the window. I do not consider this reasonably satisfies the internal amenity and energy use guidelines. 62Particular consideration was given to the solar access to the new units by reference to the specific rule of thumb that " living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9 am and 3 pm in mid winter ". This led to review of the original application, where 62% achieved this rule. However the proposal now reduces this to 61%, with 4 of the additional units not reasonably complying with Principle 5 of the RFDC. I consider this a further negative aspect of the modification.

Car parking 63The approved development provides for 76 car spaces for the 58 units. The modification increases this to 84 spaces for the total 66 units. The contention is that the arrangement of the proposed parking does not satisfy the provisions of cl 25J of the KPSO. 64Whilst the numerical requirement is satisfied within the 3 basement car park levels, Mr Olsson is dissatisfied with the relative location of the spaces. This arises because the modification is for 36 units in Building B, which generates the requirement for 36 spaces. However, the basement plan for this Building B contains only 25 spaces, with remaining spaces to be allocated under Building A. 65Considering the sloping topography of the site and the resultant configuration of the units and access thereto, I agree with Mr Olsson that the resultant travel paths to some of the car spaces from units in Building B results in a poor level of amenity. In my assessment this level of convenient and safe access to the individual units is considerably less than the original consent and I do not consider it reasonably satisfies the ' Site Access - Parking' objective in the RFDC "to integrate the location and design of car parking with the design of the site and building. The proposed parking arrangements are a further negative aspect of the modification. 66In summary then, I do not consider the modified application merits consent. It is apparent to me that it tends to 'cram in' the additional 8 units within the existing envelope, with the result that the cumulative effect of a number of the 'good design criteria' in the RFDC and DCP is not met. Consequently the overall visual and internal amenity outcome is unsatisfactory on merit considerations and I do not consider the public interest would be well served by any such approval. This notwithstanding the further amendments offered during the appeal. 67In the ultimate, I note that whilst a SEPP 65 Design Verification Certificate was lodged (Exhibit C), I do not consider it satisfies the requirements of the EP & A Reg 115 (2) (c), which requires verification that the modifications do not diminish or detract from the design quality. Accordingly, I rely on the aforementioned evidence before the Court that this requirement is not satisfactorily achieved.

Court orders 68The Court orders that: (1)The appeal is dismissed. (2)Development consent for the modification of MOD0175/11 proposing an increase in unit mix from 58 to 66 units and associated changes at 6 -14 Dumaresq Street, Gordon is refused. (3)The exhibits may be returned except 1, 2, 7, A, C and G. R Hussey Commissioner of the Court 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: 09 March 2012