Roselands Star Pty Ltd v Canterbury‑Bankstown Council [2018] NSWLEC 1010 | Case summary | Zoe

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Roselands Star Pty Ltd v Canterbury‑Bankstown Council

[2018] NSWLEC 1010

Land and Environment Court (NSW)|2017-11-14

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-11-14

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

COMMISSIONER: This appeal has been lodged in response to the deemed refusal by Canterbury - Bankstown Council of consent for a mixed use development. The applicant seeks approval for the demolition of all existing structures onsite and the construction of a mixed use development containing ground floor shops, with residential units on the upper 5 levels. Parking is provided in two basement levels. The development is proposed at 892-906 Canterbury Road, Roselands.
Following the termination of the conciliation the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation in August 2017. These plans entail the following main changes: 1. Removal of the three small office home office (SOHO) apartments, which are replaced with three shops; 2. Deletion of levels 6 and 7 of the proposal; 3. Amendment of the building foot print to an "L" shape with building fronting Canterbury Road and Flora Street; 4. Provision of roof top communal open space; and 5. An increase in the setback of the development to Canterbury Road to 5 metres.
Leave was granted at the commencement of the proceedings to a further set of amended plans that sought to address the Council's contentions and the evidence of the expert planners. It was agreed by the parties that the amendments are not minor (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]), and costs under s 97B of the Environmental Planning and Assessment Act 1979 ('the Act') arise. These further amended plans entail the following main changes: 1. Deletion of Units 05.07, 05.08, and 05.09; 2. Amendment of the floor to floor heights to 3m; 3. Creation of seven double storey units with the upper level ceiling height at 2.4m; 4. Relocation of the communal open space from the roof top to level 5; 5. Addition of privacy screening to Units 01.09, 01.10, 01.05; 6. Increase in balconies for Units 01.02, 01.03, 01.04, 01.13; and 7. Addition of hanging bicycle racks to the ground floor.

[6]

Ceiling Heights Objectives: - To increase the sense of space in apartments and provide well proportioned rooms. - To promote the penetration of daylight into the depths of the apartment. - To contribute to the flexibility of use. - To achieve quality interior spaces while considering the exterior building form requirements. Rules of Thumb - the following recommended dimensions are measured from the finished floor level (FFL) to finished ceiling level (FCL). These are minimums only and do not preclude higher ceilings, if desired. - in mixed use buildings: 3.3 metre minimum for ground floor retail or commercial and for first floor residential , retail or commercial to promote future flexibility. … - Development which seek to vary the recommended ceiling heights must demonstrate that apartments will receive satisfactory daylight (eg. shallow apartments with large amounts of window area)."

Canterbury Local Environmental Plan 2012 ('LEP 2012') applies to the site. Pursuant to LEP 2012 the site is zoned B2 Local Centre. Development for the purpose of 'Commercial premises" and "shop top housing" are permissible with consent in the zone.
The relevant objectives of the B2 zone are as follows: "• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. … • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres."
Part 4 of LEP 2012 contains principal development standards with cl 4.3 designating a maximum building height of 18 m. The proposed development exceeds this maximum height.
The relevant objectives of cl 4.3 are: "(a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, …"
LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
However, development consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: "(a) 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."
Whether the Court accepts the applicant's cl 4.6 variation requests in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.
The development is subject to the requirements of Canterbury Development Control Plan 2012, amendment 3 (DCP 2012). The following provisions of the DCP are relevant to the appeal: 1. Part 3: Business Zones "Objectives for Business Centres O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function. O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal. O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres … O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians. 06. Impacts of commercial development on adjacent residential properties are minimised." 1. Clause 3.1.1 Envelope Controls "Note: Building envelopes define a three-dimensional form that limits the extent of a building. The height, length and depth of building envelopes are defined in metres. Building envelopes are at least 20-25 percent greater than the achievable floor area of a building. Objectives: O1: the form and shape of new buildings is defined by building envelope controls O2: the appearance and performance of (the) development is an important consideration in designing, rather than building to the maximum building envelope Controls: i Building envelopes are defined by a combination of controls that include: building height building depth building separation building setbacks side and rear setbacks to residential zones. … iii The maximum building envelope is not always achievable due to the need to comply with other requirements of the CDCP; as a general guide 75-80% of the specified building envelope will be achieved to allow for building articulation and the particular circumstances of the site or proposal." 1. Clause 3.1.6 Height "Objectives O1 New buildings will have a scale that is visually compatible with adjacent buildings and heritage buildings, where this may require height of new development to be lower than the permitted height. … O3 Greater guidance as to the required built form through the provision of maximum storey controls. O4 Floor to ceiling height is adequate for the intended and potential use. . 05 Good residential amenity within buildings and externally, including natural light access for dwellings. Controls i Refer to the CLEP for maximum height of buildings in metres … Floor to ceiling heights iii. Provide a minimum 3.3m floor to ceiling height for the ground floor. iv. Provide a minimum 2.7m floor to ceiling height for residential floors. v. Minimum car parking floor to ceiling height 2.8 m. vi The floor to ceiling height may need to be increased to meet the requirements of the intended use, however, the maximum height will still need to be complied with." 1. Clause 3.1.8 Setback "Objective O1. Establish the desired spatial proportions of the street and define the street edge. … O3. Minimise building size and bulk by setting back upper storeys. O4. Minimise impacts on adjoining properties. … Controls: i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table. Number of storeys at the street and setback Upper level setback B2 zone along Canterbury Road 1-4 storeys minimum setback of 3m from street boundary Above 4 storeys an additional 5m

[7]

… On Boundary with residential zone - side setback viii Establish a 45º height plane projected at 1.5m from the residential boundary ix Provide a minimum 1.5m setback to the residential zone boundary x A two storey limit on the boundary with the residential zone applies. (Refer Figure 3.4) On Boundary with residential zone - rear setback xi Establish a 45º height plan projected at 6m from the residential boundary xii Provide minimum 6m setback to the residential zone boundary xiii A two storey limit on the boundary with the residential zone applies. (Refer Figure 3.5) 1. Clause 3.1.9 Building Separation "Objectives: O1: Separation between buildings promotes improved levels of residential amenity in new development, and preserves reasonable sunlight, privacy and general amenity for residents of existing dwellings. Controls: i. As a minimum provide the separation, specified in the following table, between buildings on adjoining sites, or on the same site. 1. Clause 3.3.1: Visual Privacy "Objectives: O1. Reasonable levels of visual privacy for residents, inside a building and outside within the property, during the day and at night. O2. Visual privacy is not compromised while maximising outlook and views from principal rooms and private open space, and maintaining passive surveillance of public areas, semi-public areas and school playgrounds. O3. Avoid direct overlooking of adjoining windows and balconies. Controls: … iii. Separate communal open space, common areas and access routes through the development, from the windows of rooms, particularly habitable rooms." 1. Clause 3.3.3 Open Space "Objectives: O1. All residents have access to private and functional open space on their land, such as private yards, courtyards and balconies or roof top terraces. O2. All residents in multiple dwelling buildings have access to consolidated, semi-private and functional communal open space on their land. … Controls: … iii. Provide minimum area of 12m2 for primary balcony for apartments with two or more bedrooms. iv. Provide minimum depth of 2m for primary balcony."

The DCP provisions are a mandatory consideration and a focal point of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However, s 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151). This is relevant to the Courts consideration of the relevant DCP controls in relation to building envelope.

[14]

Objective (a)

Mr Layman's evidence in relation to objective (a) of the standard can be summarised as follows:

The area within proximity of the subject site is undergoing change;
The desired future character is set by the height standard in LEP 2012 and this is an important and fundamental control which should be given additional emphasis in the absence of a control for floor space;
Controls in DCP 2012 provide a building envelope through setbacks and the building height plane. They have the objective of controlling scale and any impacts on adjoining property (he emphasises privacy and overshadowing impacts in particular);
The exceedances of the height standard should not be supported because they will be highly visible and perceivable in the streetscape of Canterbury Road and Flora Street.

On the basis of the preceding reasoning it is Mr Layman's assessment that the development fails to meet objective (a) of the height standard, namely to establish and maintain the desirable attributes of an area (Exhibit 6).
In the alternative Mr Brewer argues that when viewed from the south the combination of: the minor nature of the exceedance (430mm); the proposed setback from the boundary to the point of exceedance (some 27m); and the angle of the view of an observer, would make the exceedance in height imperceptible.
It is Mr Brewer's evidence that from a viewpoint opposite the site, or on approach to the site from Canterbury Road, a casual observer will not perceive the height variation. He reaches this conclusion for two main reasons: firstly he argues that there is no reference point, or datum, demonstrating the compliant height within the view; and secondly the marginal difference between compliance and noncompliance is reduced by the effect of perspective.
It is Mr Brewer's conclusion that: "Despite the noncompliance with the height control, the development provides a building form and scale which acts as a transition in the height and scale of surrounding existing development, as well as providing a visually interesting focal point and Gateway element along Canterbury Road." (Exhibit J)
Both experts agree that the areas of height noncompliance will not be visible in close proximity to the site, or on the footpath adjacent to the site, due to the angle of view and the placement of the awning over the footpath.

[15]

Objective (b)

In relation to objective (b) of the standard Mr Layman argues that minimisation of overshadowing suggests that overshadowing should be, at least, no more than might be expected from a fully compliant development (Exhibit 6). It is his conclusion that: "The non-compliance with the height standard and the form adopted to justify it do not minimise amenity impacts on neighbours, notably in terms of visual privacy and overshadowing. A better planning outcome would be to limit the depth of the component facing Canterbury Road, thereby minimising its overshadowing of residential land generally to the south. There is scope to have lower form on the south side of the site (and) in the south western part of the site and have height compliant, less deep development facing Canterbury Road."
Mr Layman argues that an alternative approach to the planning of the site that had two building forms oriented parallel with Canterbury Road would provide less impact to the residential land generally to the south of the site. He therefore concludes that the development fails to 'minimise overshadowing' as required by objective (b) of the standard.
In the alternative it is Mr Brewer's evidence that a building envelope, that satisfied the building envelope provisions contained in the CDCP 2012, would not necessarily achieve a better planning outcome (Exhibit J). It is Mr Brewer's conclusion that: "The proposed built form and footprint follows a very deliberate pattern to reinforce the street edge to both Canterbury Road and Flora Street, while at the same time, ensuring a significant amount of solar access for the existing residents and likely future development on adjoining sites by sacrificing floor space in the southern corner of the Site to provide a very large cutout or void above the common open space area. The design of the proposal in this manner will provide and protect significantly more solar access to the adjoining properties than would a development that maximised the available building envelope prescribed by CDCP 2012." (Exhibit J)
Mr To argues, on the basis of Mr Brewer's evidence, that the development is therefore consistent with the approach taken by the Court to determine whether an impact is appropriate. He argues that the correct approach to the assessment is a comparative one between a compliant scheme and the proposal (Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52 at [219]).
Mr To submits that the building has been deliberately designed to protect solar access for current residents to the south of the site, as well as residential units that may arise from the redevelopment of those sites (1 Flora Street and 4 & 6 Remly Street). It is his submission that, by reference to the overshadowing diagrams, the "L" shaped configuration of the building form proposed performs better than a fully compliant building envelope. He concludes that the marginal increase in overshadowing from the height exceedance is trivial, and far less than compared with the shadowing that would otherwise be cast by a LEP/DCP compliant building that filled the south-western quadrant (Applicants submissions, page 7).
In the alternative Mr Seton argues that the impacts that arose from a development that complied with the maximum building height in LEP 2012 and the building envelope and height plane in DCP 2012 are the impacts expected by the controls. It is his submission that the proposal results in a negative outcome in that it fails to achieve the built form expected by the planning controls and instead provides additional bulk in areas of the site not expected. In particular the development provides additional built form fronting Flora Street in proximity to the southern property and by exceeding the height limit.

[17]

Findings

In considering the competing evidence of the planners and with the benefit of a view of the development site and its context I prefer the evidence of Mr Brewer. I am satisfied on his evidence and my own observations and assessment that the height exceedance will not be highly visible in the streetscape. I find that whilst exceeding the development standard for maximum height the proposal is compatible with the bulk and character intended by the planning controls. I find that the proposal is consistent with objective (a) of the height standard.
Further I am satisfied that examination of the comparative overshadowing diagrams (Exhibit J) readily demonstrates that a fully compliant building built within the DCP building envelope (with building form located in the south western quadrant of the site) would remove significant solar access to the rear of the adjoining properties to the south.
I accept the evidence of Mr Brewer that the proposed development provides less impact on solar access for properties to the south of the site than would arise from a development that occupied the south west corner of the site.
I accept the submission of Mr To that this improvement in solar access will also be a benefit to a future redevelopment of the site consistent with the zone intent of increasing residential density.
On the preceding basis I find that the proposal is consistent with objective (b) of the height standard.
Similarly I am satisfied that the applicants approach to the development of the site has the positive benefit of providing an active street address to Flora Street. This may not be achieved if the alternative approach proffered by Mr Layman was adopted of two blocks of development parallel with Canterbury Road. On this basis I find that the proposal is consistent with objective (c) of the height standard.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is consistent with objectives of the height standard. Is it established that compliance is unreasonable or unnecessary?
Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant seeks to establish that the objectives of the standard are achieved notwithstanding the variation (Wehbe test 1).
In the variation request Mr Brewer argues that the objectives of the standard are achieved notwithstanding non‐compliance with the standard for the following reasons: "… we contend that strict numerical compliance will not achieve any greater public benefit than the proposal. The variation is relatively small in its context and applies to the central portions of the western and eastern modules, parallel to the Site's northern alignment with Canterbury Road, as demonstrated in Figure E above. The area of exceedance is located as close to the northern boundary as possible, thereby mitigating any potential amenity impacts on adjoining properties. A development that satisfied the building envelope provisions contained in the CDCP 2012 would not necessarily achieve a better planning outcome. The proposed built form and footprint follows a very deliberate pattern to reinforce the street edge to both Canterbury Road and Flora Street, while at the same time, ensuring a significant amount of solar access for the existing residents and likely future development on adjoining properties by sacrificing floorspace in the southern corner of the Site to provide a very large cutout or void above the common open space area. The design of the proposal in this manner will provide and protect significantly more solar access to the adjoining properties than would a development that maximised the available building envelope prescribed by CDCP 2012. The noncompliance will not be discernible to the naked eye or from street level. As shown in Figure E above, the exceedance is generally well set in from all boundaries except for the western boundary where the building will adjoin an existing four storey mixed use building on a zero-lot line with the Site. The shape of the building and the placement of each level is a specific and deliberate design solution that will accommodate a small height exceedance that reinforces the presence of the building on a street corner without adversely impacting on the desirable attributes of the emerging streetscape and character of the area. It is unreasonable and unnecessary to require removal of the entire uppermost residential level in order to achieve strict numerical compliance for such a minor departure to the height standard. The proposed residential density and built form reflects the B2 Zoning and utilises existing services and public transport, providing additional housing supply in an appropriate area. The upper levels of the proposed development are significantly setback from the site boundaries. Lift overruns are centrally located within the building footprint and therefore, result in negligible impacts with regard to streetscape character and overshadowing. The proposed building envelope provides a greater setback than that which would be required under CDCP 2012. As demonstrated in the submitted shadow diagrams, by sacrificing two levels over approximately one quarter of the development footprint and having a very small height exceedance along the northern boundary, a better planning outcome is achieved. This better outcome is the protection of the existing amenity and solar access currently experienced by the adjoining properties in Flora Street and Remly Street and their future residential potential. The difference in the extent of impact between a development that achieves strict numerical compliance would not significantly alter the overshadowing, privacy or acoustic impacts on adjoining properties. These impacts have been demonstrated to be within anticipated limits."
Mr Layman argues (for the reasoning outlined in the preceding discussion of the building height standard objectives) that the objectives of the standard are not achieved. He maintains that compliance with the standard is reasonable and necessary.
Mr Seton submits that the applicant has not substantiated that compliance is unreasonable or unnecessary. He agrees with the evidence of Mr Layman that the height standard has specific importance as it is the single standard in the LEP that establishes the attributes and character of the area. It is his submission that the applicant has sought to contravene the building height standard to allow additional development in a manner that is not consistent with the objectives of the standard. He relies on Mr Layman's evidence in relation to the developments achievement of the objectives of the standard. In particular he argues that the development is not consistent with the achievement of objective (c) and approval will have a precedent effect being the first building form in this zoning in the locality.
In the alternative Mr To argues that whilst it factually correct that with LEP 2012 height is the only standard that informs the desirable attributes of character for the site, it does not elevate or change the nature of the test under cl 4.6 of LEP 2012. He submits that the exceedance is small and consistent with cl 4.6(1) which aims to provide an appropriate degree of flexibility in applying certain development standards to particular development and to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

[19]

Are there sufficient environmental planning grounds to justify the variation?

In the variation request Mr Brewer argues there are sufficient environmental planning grounds principally on the basis that: "… The improvement in solar access to the adjoining properties to the south as a result of the redistribution of bulk from the south western portion (beyond that required by a compliant building envelope) to areas on the upper level of the building closer to Canterbury Road, which create the noncompliance, result in significant improvements to the existing development in terms of solar access and provide greater opportunities for any redevelopment of the sites to the south in terms of unit orientation and solar access. The removal of built form from locations adjoining the southern boundary by providing a small exceedance in height in the middle of the site results in a better planning outcome and one which permits improved solar performance to adjoining properties and reduction in bulk when perceived from existing and future developments on the sites to the south of the proposed development. The location of the proposed non-compliant areas of the building provide for less solar impact than an otherwise compliant building envelope would on the properties to the south. On balance, the small non-compliance has an imperceptible impact but results in the ability for the development to redistribute built form away from the southern boundary, in excess of the setbacks contemplated by the DCP and ADG. …"
Mr Layman argues that a two building form building approach to the site (refer paragraph [57]) would be a preferred outcome. He argues that this would result in a lower form to the south side of the site in the south western part of the site and have a height compliant, less deep development facing Canterbury Road (Exhibit 6).
Within the architectural plans the applicant has completed a comparison of the overshadowing impact on the 21st of June from the proposed development and a LEP/DCP compliant envelope (Exhibit J). Broadly these plans show: 1. At 9am - 11am the proposed development does not overshadow the dwelling at 4 Remly Street, whereas the mapped LEP/DCP compliant envelope does. There is also a lesser area of the rear yard of this property overshadowed by the proposed development than the mapped LEP/DCP compliant envelope. 2. At 12 noon the proposed development does not overshadow the rear yard of 4 Remly Street and the majority of the rear yard of 1 Flora Street. The plans indicate the majority of the rear yard of 1 Flora Street and some of the yard at 4 Remly Street would be impacted by mapped LEP/DCP compliant envelope. 3. At 3pm, 5 Flora Street would be impacted by mapped LEP/DCP compliant envelope, but is not impacted by the proposed development.
In oral evidence Mr Layman accepted that the proposed development provides better solar access to 4 and 6 Remly Street and 1 Flora Street than would be achieved by a development that filled the LEP/DCP building envelope. He also accepted that these benefits are site specific and arise from the siting of the proposed development and the movement of building mass from the south western corner of the site to the frontage of Canterbury Road and Flora Street.
Mr Seton submits that the impacts from the LEP/DCP compliant envelope are expected by the controls and have been the subject of public consultation in the preparation of LEP 2012 and DCP 2012.
Mr Seton also submits that the over shadowing diagrams are inaccurate. He argues that the LEP/DCP compliant envelope should align with the depiction of the eight storey building envelope.

[22]

Separation to the residential development to the South

The Council contends that the proposed development does not achieve the building separation controls detailed in the RFDC (refer paragraph [20]) at the fourth and fifth storeys of the building.
The planning experts agree that in the terms of the RFDC recommended distance between habitable rooms/balconies, the proposal is deficient by approximately 3.1m and that between habitable rooms/balconies and non-habitable rooms the development exhibits a marginal noncompliance (Exhibit 6).
Mr Brewer states that in his opinion that there are reasonable grounds for applying flexibility to the application of the recommended separation distance. He argues those are: 1. The redevelopment of 1 Flora street will be restricted by the 8.5m maximum building height that applies to that site, effectively limiting a redevelopment to two storeys. As such a direct relationship between built form across the two sites would be minimal and not direct where the variation is sought. 2. Any impacts that arise between the current development on 1 Flora street and the proposed development can be mitigated by the inclusion of privacy screens to Unit 01-13. 3. That in implementing the separation distance it is appropriate to distribute the distance required between the two properties. 4. That mandating strict compliance will not result in a better outcome for the existing or proposed development of 1 Flora street.
In the alternative it is Mr Layman's evidence that the noncompliance with the building separation distance should not be supported by the Court. He argues that the principal outlook of apartment 01-13 is directly towards inadequately separated flats to the south. In relation to apartment 01-13 Mr Layman argues that a living area and long side of a primary balcony face directly to north -facing living area and bedroom windows of two levels at 1 Flora Street. In response to the suggestion of Mr Brewer that the privacy impact can be resolved by the installation of screens Mr Layman argues that this will reduce the solar access of apartment 01-13.
Mr To submits that the only objective in relation to separation controls of the RDFC in dispute is whether the development provides visual privacy for existing and new residents. He submits that Mr Layman accepts that the addition of screening to apartment 01-13 addresses any potential privacy impacts. He notes that any impacts between the proposed development and the existing development at 1 Flora Street only occurs at the first level as the apartments above this level are higher than the adjoining building.
Mr Seton submits that within the RDFC there are no provisions for the equitable distribution of the separation distance as argued by Mr Brewer. He argues that on the basis of the evidence of Mr Layman the variations to the building separation controls should not be supported.