Sioud v Canterbury-Bankstown Council

Planning framework

1. For ease of reference, the relevant planning legislation, environmental planning instruments, and development control plans and policies that apply to the site are listed below: 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), in particular cl 30A which is in issue. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 3. State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP) 4. State Environmental Planning Policy (Transport and Infrastructure) 2021 5. Bankstown Local Environmental Plan 2015 (LEP) 6. Bankstown Development Control Plan 2015 (DCP) 1. Part A1 Centres 2. Part B1 Residential Development 3. Part B2 Commercial Centres 4. Part B5 Parking 5. Part B12 Flood Risk Management 6. Part B13 Waste Management and Minimisation 1. Bankstown Development Contributions Plan 2019 2. Canterbury Bankstown Community Participation Plan

The proposal

1. Before turning to the issues, it is appropriate to outline the final proposal because the application has been amended several times to address concerns expressed on behalf of the Council. The March plans (Ex F) are the final plans and the fine detail of the changes is set out in the schedule of changes filed with Ex F. More broadly, the development can be described as follows: Floor Description • Twenty-three (23) parking spaces. Ten (10) of these spaces are allocated to the boarding house (two (2) of which are accessible spaces) and eight (8) spaces; • Six (6) motorcycle parking spaces; • Six (6) bicycle parking spaces; Basement • Two (2) stairways providing access to external ground floor • Life access • Bulky waste storage • Commercial bin storage • Residential garbage storage • 320m2 retail space (including one (1) bathroom) • Building entry including enclosed residential entry lobby and external mailboxes • Communal open space • Plant room Ground • Services cabinet • Booster • Fire hydrant • Vehicle access to basement via ramp • Fire stairs to upper levels • Eleven (11) single lodger boarding rooms (rooms 1-11) each with an external balcony • Communal open space Level 1 • Internal stair access • Lift • Store room • Two (2) service cabinets • Eleven (11) single lodger boarding rooms (rooms 12-22) each with an external balcony • Internal stair access Level 2 • Lift • Store room • Two (2) service cabinets • Eight (8) single lodger boarding rooms (rooms 23-30) each with an external balcony • Room 23 is identified as the caretaker's unit with attached private open space Level 3 • Communal area with attached common open space • Internal stair access and lift • Store room • Two (2) service cabinets

1. The development will accommodate, by condition, the less controversial design changes compiled by the Council's urban design expert, Ms Sameh (Ex 11). In that regard, the agreed conditions now require: landscape details (Condition 1.18); extension of planters in the white areas between the curved elements and the building (Condition 1.20); paving of the route from the fire exit door to the street (Condition 1.16); relocation of the barbeque area away from the fire exit (Condition 1.15); proper integration of the public domain (Condition 1.19) (Annexure A to this judgment).
2. However, Ms Sameh's preference for an increase in the size of the private Juliette balconies to some of the boarding rooms and the removal of a perforated screen have been declined by the applicant. As identified by the applicant, the Apartment Design Guide does not apply to the boarding house, and the design of the roof element is a matter of taste. Despite Ms Sameh's scepticism, as to the floor to ceiling dimension to accommodate necessary services in the retail space, the amended plans now provide satisfactory detail to address that issue.
3. The plans also resolve a solar access contention while overshadowing is no longer pressed.
4. A site contamination issue has also been addressed by the submission of a Remedial Action Plan as required by s 4.6(1) in Ch 4 of the R&H SEPP.
5. The further amended landscape plan, and agreed conditions of consent, have resolved the Council's issues with the landscaping of the proposal. As recommended in the joint report, the latest plans have increased the landscaping to Greenwood Avenue as well as the setback and landscaping to Marion Street.
6. The amended plans have also provided compliant disabled access from the west on Marion Street by introducing an entry stair/ramp - with signage at the main entry in Greenwood Avenue directing accessible access from this western location.
7. The removal of the car stacker from the basement has allowed reconfiguration of that area to provide a car share space and compliant parking spaces - with spaces 7 and 8 to have a 2500mm width as suggested in the joint traffic report (Ex 6).
8. The Plan of Management (POM), as updated, now sets out amongst other things, relevant detail for the management of the share car arrangement for the residents of the boarding house.
9. The area for collection of garbage in the basement of the development has been enlarged, as recommended in the joint waste report (Ex 7), and the applicant has accepted a condition requiring the Council's approval of a private licenced waste collector for waste, recycling and bulky waste collection and disposal, such approval to be obtained prior to the issue of a construction certificate.

Contentions

1. With those matters resolved, the Council's remaining contentions give rise to the following issues:

• The proposal is too high, as it breaches the height standard in the LEP.
• The cl 4.6 written request seeking to justify that breach is inadequate.
• The design of the building still fails to address properly its prominent and gateway location.
• The development is out of character with the current and desired future character of the neighbourhood.

1. These matters were addressed by the parties' planning/urban design experts in a joint report (Ex 4), and later in concurrent evidence.
2. Before considering their evidence, I need first to address the applicant's cl 4.6 written request as it goes to my jurisdiction. That request has been prepared on the basis that the roof element on the building, said to occasion the height breach, is to be characterised as an "architectural roof feature" under cl 5.6(3) of the LEP. If that description is correct, then the concession for height expressed in cl 5.6(2) allows the development to be carried out, with consent, without breaching the height standard imposed by cl 4.3 and so obviating the need for a request under cl 4.6 for that element or, impinging upon the extent of exceedance, when determining any such request.
3. Clause 5.6 provides as follows: 5.6 Architectural roof features (1) The objectives of this clause are as follows - (a) to enable minor roof features to exceed the maximum height for a building, (b) to provide opportunities for architectural roof features that form an integral part of the building's design. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that - (a) the architectural roof feature - (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
4. It follows that characterisation of this "architectural roof element" is significant when determining whether the height standard is breached and, if so, to what extent that standard is breached. The extent of breach, if any, is also relevant to the exercise of the power under cl 4.6 of the LEP therefore whether the dispending power under cl 4.6 is appropriately exercised.
5. Accepting that the "building height" is the vertical distance from natural ground level to the highest point of the building (Dictionary to the LEP), in the present case that measurement indicates the building to exceed the height standard for the site of 13m by approximately 3270mm (Ex F Plan A254). However, if the roof feature is excluded from that calculation, then the breach of the height control is much less. According to Ex F that excess is in the order of 960mm on the eastern elevation and 890mm at the western edge of the northern elevation. The plan below shows the roof feature circled red. Figure 2 Eastern elevation demonstrating non-compliance (Ex D p 32)

The Council's position

1. The Council argues on the evidence of Ms Prakash and Ms Sameh that the roof element in issue is not a "roof feature" because it is neither architectural nor decorative (Tcpt, 17 February 2023, pp 49(35)-50(30), 64(38)-65(21) (Ms Prakash); pp 50(30)-51(8), 62(41)-63(20) (Ms Sameh)). Ms Prakash believes the roof element is an intrusive, large prominent façade element that protrudes inappropriately into the public domain at a major intersection in Bankstown. A roof element which she believes could easily be enclosed to constitute floor space.
2. Ms Sameh said that the awning structure is not a decorative corner feature. Absent any design element, other than perforated sheets in the middle, she said it looks like a vent.

The applicant's position

1. The applicant contends on the evidence of Mr Mead that the roof element has the characteristics of a roof feature listed in cl 5.6(3)(a) namely:

• a decorative element on the uppermost portion of a building;
• not an advertising sign;
• does not include floor space nor is it reasonably capable of modification to include floor space; and
• does not cause overshadowing.

1. It also serves the purpose of integrating the lift overrun and the mechanical exhaust into an architectural feature as anticipated by cl 5.6(3)(b).
2. The applicant submits that the development by its design engages cl 5.6 of the LEP and the cl 4.6 written request is only required to address the breach of the height generated by the built form without reference to the roof feature.

Is the roof element a roof feature for the purpose of cl 5.6 of the LEP?

1. There is no definition of the term "architectural roof feature" in the LEP and the reference in objective cl 5.6(1)(a) "to enable [a] minor roof feature to exceed the maximum height of the building" does not assist in defining the term "architectural roof feature". Instead, it sets an outcome for the clause. The only indication in the clause of what is intended is found in cl 5.6(3)(a)(i) is that it be a "decorative" element and that it be located on "uppermost portion" of the building". The Council did not contend that the latter of those two requirements was not satisfied. The balance of cl 5.6(3)(a) is directed to identifying what cannot constitute an "architectural roof feature" within the meaning of the clause.
2. With that in mind, and after a consideration of the text of the provision in context, I prefer the evidence of Mr Mead on this issue. The arguments against his application of the clause are unpersuasive. It is appropriate to deal with each of them.
3. Firstly, the roof element is located on the uppermost portion of the building and in my assessment of the evidence can be described as a decorative element, accepting, as the applicant's counsel Mr Hemmings SC submitted that reasonable minds may differ in that regard. Secondly, on the evidence it is clearly not an advertising sign or a cause for overshadowing. Finally, the roof element does not include floor space nor is it reasonably capable of modification to include floor space given the proposed piping, and other services integrated into the space.
4. Having satisfied each of the criteria in the clause it follows, as Mr Mead suggests, that this roof element is a roof feature which engages cl 5.6 of the LEP. The length and height of a roof feature are not prescribed by the clause so its extent over the roof is irrelevant. Furthermore, the DCP cannot be used to define a roof feature for the purposes of cl 5.6 of the LEP. The evidence of it needing to be an architectural roof feature at the street corner that emphasises that roof element at clause 2.9(a)(i) is a building design control in the DCP not a requirement under cl 5.6 of the LEP.
5. In the written submissions, the Council corrected the breach to a reduced figure of 960mm. For those reasons, I find that the building exceeds the 13m height control by at least 960mm on the eastern elevation and 890mm at the western edge of the northern elevation (noting, the height of the building was initially measured to exceed the height control by between 1150-1170mm but was corrected during the hearing).

Is there a need for a written request to vary the height standard under cl 4.6 of the LEP?

1. At the hearing there was some discussion as to whether cl 29 of the ARH SEPP is in conflict with the height clause in the LEP. In final submissions the applicant agreed with the Council that the breach of the development standard in cl 4.3 of the LEP raises a jurisdictional matter that can be addressed by a cl 4.6 written request.
2. This is because cl 29 of the ARH SEPP in prescribing circumstances which cannot be used to refuse consent only refers to development that does not exceed the maximum height control in the LEP. Clause 29(2) provides: (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land… (Ex 3, folio 331)
3. In this case, the building exceeds the maximum building height under cl 4.3 of the LEP. Therefore, it is open to the Court to refuse consent to the development under cl 29(2) of the ARH SEPP as that clause only deals with development that is less than the maximum height. And, as there is no inconsistency between cl 29(2) of the SEPP and cl 4.3 of the LEP (such as to engage cl 8 of the SEPP) the applicant can utilise cl 4.6 of the LEP to seek a variation of the maximum height standard.

The applicant's cl 4.6 written request

1. The applicant's amended written request pursuant to cl 4.6 is prepared by Planning Ingenuity and dated 29 March 2023. It relates to the amended plans (Ex F) and proceeds on the basis that the breach of the height control in cl 4.3 does not include the roof feature because it is excluded from that calculation by cl 5.6.
2. Clause 4.3 of the LEP relevantly provides: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that the height of development is compatible with the character, amenity and landform of the area in which the development will be located, (b) to maintain the prevailing suburban character and amenity by limiting the height of development to a maximum of two storeys in Zone R2 Low Density Residential, (c) to provide appropriate height transitions between development, particularly at zone boundaries, (d) to define focal points by way of nominating greater building heights in certain locations. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. ...
3. The Height of Buildings Map (HOB_005) identifies the maximum building height permitted for the site is 13m.
4. The written request states that the breach of the height control in cl 4.3 is to a maximum building height of 13.96m - measured to the roof parapet (Ex D p34). And, according to the architectural plan A830, the breach is 960mm on the south-eastern corner and 890mm on the north-western corner.
5. Clause 4.6 of the LEP relevantly provides: 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 Planning Secretary has been obtained.
6. The written request acknowledges that cl 4.6(4) establishes preconditions that must be satisfied before the Court on appeal can exercise the power to grant development consent for development that contravenes a development standard: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [13].
7. Pursuant to cl 4.6(4)(a), the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: (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…
8. Only if the requirements in cl 4.6(3) and (4) are met will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 per Preston CJ at [24].
9. In this case, I am satisfied that the written request does adequately address the matters that are required to be demonstrated under cl 4.6(3). In that regard, I accept that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development nonetheless achieves the objectives of the standard for the reasons outlined in the written request as summarised below.

Objective (a) - to ensure that the height of development is compatible with the character, amenity, and landform of the area in which the development will be located

1. As I observed, and the written request records, the site is within close proximity to the Bankstown CBD and is a single B1 zone site surrounded by R4 High Density Residential zoning. Referencing the Height of Buildings Map, the request demonstrates a variety of height standards within the locality including the R3 zone opposite at 10m and between 9-25m elsewhere within the locality. As such, I accept the proposition in the written request that the developments surrounding the site will be different in terms of use, character and height. I also accept, as the written request identifies, that the adjoining site, currently single storey, has a 13m building height and FSR of 1:1 which matches the controls for the subject site and if developed to that maximum would be compatible in height with the proposed development.
2. I observed when visiting the site and area and as noted in the written request, that the area is clearly in a state of transition and a far greater density is to be expected under the current controls on some sites. I also appreciate that the draft Masterplan, to which I have earlier referred, proposes higher densities and heights along Greenwood Avenue and it can be considered in addressing what might well be the future character although it has no legal bearing on the current application except as part of the public interest. The request acknowledges and I accept that the proposed built form does not generate unreasonable amenity impacts such as overshadowing or overlooking of habitable rooms or private open spaces of adjoining dwellings; and offers extended landscaped setbacks to residential properties. The breach of the height control is minor as stated by Mr Mead, and I am satisfied that the proposed development does not have unacceptable amenity impacts and is consistent with compatibility requirements in objective (a).

Objective (b) - to maintain the prevailing suburban character and amenity by limiting the height of development to a maximum of two storeys in Zone R2 Low Density Residential

1. The site is not located within or adjacent to R2 Low Density Residential zoning therefore objective (b) is not relevant.

Objective (c) - to provide appropriate height transitions between development, particularly at zone boundaries

1. I accept that the proposed development will provide an appropriate transition to the adjoining higher density sites in the R4 High Density Residential zoned land and the sites in different zones identified on Height of Buildings Map at p 29 of the written request. I also accept that when the existing single storey developments on adjoining sites are developed under the same controls as the subject site the scale and transition with the proposed development will be appropriate - mindful that the area is in a state of transition.

Objective (d) - to define focal points by way of nominating greater building heights in certain locations

1. This objective of the standard does not apply.

Sufficient environmental planning grounds

1. The applicant acknowledges in the written request that cl 4.6(3)(b) of the LEP requires demonstration that there are sufficient environmental planning grounds to justify contravening the development standard.
2. The reasoning of the Court in Initial Action provides assistance in relation to the consideration of sufficient environmental planning grounds. In that decision, the Court observed that in order for there to be 'sufficient' environmental planning grounds to justify a written request under cl 4.6, the focus must be "on the aspect or element of the development that contravenes the development standard" and the "environmental planning grounds advanced in the written request must justify contravening the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]); and there is "no basis in cl 4.6 … [to] establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development" (at [87]).
3. The applicant's written request also acknowledges that the environmental planning grounds must be environmental planning grounds by their nature and while not defined refer to grounds that relate to the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979 including its objects in s 1.3: Initial Action at [23]-[24]. Additionally, they must reference the aspect of the proposed development that contravenes the standard and why that contravention is justified on environmental planning grounds. They must also be adequately addressed in the written request: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].
4. In this case, the written request identifies the flood planning level that applies to this site as justification for the breach of the height standard (Ex D P30). The Council submits that this is misplaced and that the flood planning level is not a proper basis to raise the top of the building. However, I disagree.
5. While the maximum height control cannot always be achieved the requirement to raise the floor level to address flood affectation of a particular site may be a relevant environmental planning ground to justify a breach. This site is flat and has ground levels that range from 18.90m AHD to 19.80m AHD. Because it is impacted by the 100-year flood level this new development is required to achieve a FFL to habitable areas of RL20.30m AHD. The ground level of the development was elevated above the flood level of the site and the breach reflects that distance. In short, the noncompliance (roughly 1m) is a direct result of the advised flood level of the site.
6. The written request records that the variation is relatively minor as identified on the plans (Figures 8 and 9) included in the written request, and I agree. It is apparent that the minor breach does not generate any perceivable visual bulk. The character of the locality will be retained with minimum impacts on the adjoining properties.
7. A peculiar feature of this site is that it is a gateway corner block and the DCP invites a roof feature. The development offers an architectural treatment to the building facade at that street corner to emphasis the corner in accord with clause 2.9 of the DCP. Relevantly, there is no limitation, under cl 5.6, of the height or length of that roof feature and I accept, as submitted, that the breach to the roof parapet will not be read separately from that roof feature when viewed from the public domain.
8. For those reasons, I am satisfied that the written request has identified sufficient environmental planning grounds to justify the breach of the height standard in this case.
9. Pursuant to cl 4.6(4)(a)(ii), I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard, for the reasons stated and because it is consistent with the objectives for development within the Zone B1 in which the development is proposed to be carried out. In respect of the latter, I accept that that the proposed development contributes to the provision of business uses in the Bankstown area and also adds to the mixture of land uses more broadly consistent with the first zone objective. The boarding house will also provide additional residential accommodation within the Bankstown area which will complement the commercial use proximate to the site consistent with the second zone objective.
10. For the purposes of cl 4.6(5), the Secretary of the Department's concurrence to the variation is assumed (Planning Circular PS 18-003 dated 21 February 2018 and cl 64(1) of the Environmental Planning and Assessment Regulation 2000) and I have considered the matters raised in cl 4.6(5) and am satisfied. For all those reasons, the applicant's cl 4.6 variation written request is, in my assessment, sufficient contrary to the Council's written submissions and approved.

Compatibility with the character of the local area

1. Clause 30A of the ARH SEPP addresses character of local area and provides: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
2. The focus of cl 30A of the ARH SEPP is on the compatibility of the design of the development with the character of the local area. The Council submits that it is the existing and future character that need to be considered that I need to ask: "Is the proposal's appearance in harmony with the buildings around it and the character of the street": Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [24]; Catholic Healthcare Limited v Randwick City Council [2019] NSWLEC 99 at [52] (CWS p 23).
3. This requires a consideration of the existing built form under the current controls and the proposal's physical impacts on that built form. The evidence is that there are no unacceptable impacts such as overshadowing and the design satisfies the relevant controls apart from height. And, for the reason already stated I do not accept that the height of the buildings is incompatible with the local character which takes in the R4 land and the R3 land for the reasons expressed by Mr Mead in the joint report and in his oral evidence.
4. All of the experts agree that this is a prominent gateway corner site. The site sits at a juncture of several zones - R4 adjacent, R3 across the road with a height limit of 10m and a RE1 zone. Clause 2.9 of Part A1 of the DCP requires gateway and corner sites to incorporate a corner element at the street corner. It provides as follows:
5. The proposed design introduces an architectural roof feature at the street corner that without doubt emphasises the corner element. In achieving the objective of highlighting this gateway and corner site, the design of the development cannot, in my assessment of the evidence, be criticised as not being harmonious with the existing character of the local area for the purpose of cl 30A of the ARH SEPP or for that matter the future character of the area. An area which the experts accept is in a state of transition to higher densities under the current controls (i.e. the adjoining site) and likely under the Draft Masterplan which is a circumstance of the case.
6. Ms Sameh has a different view. The matter is subjective and based on my observations I prefer the evidence of Mr Mead.
7. Having dealt with the precondition in cl 30A of the ARH SEPP there is no other matter that I need to address under the SEPP.

Conclusion

1. For all those reasons I am satisfied that the development has merit and I have decided to grant development consent to the amended DA subject to the agreed conditions of consent in Annexure A.
2. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application no. DA-280/2021 for the demolition of existing structures and the construction of a four-storey mixed use development comprising a 30-room boarding house and ground floor commercial tenancy with basement parking at 68 Marion Street, Bankstown, subject to the conditions of consent in Annexure A. 3. The exhibits are returned except for A, B, C, D, E, F, G, H, J, K, L, 1, 2, 4, 6, 7, 9 and 11. …………………… S Dixon Senior Commissioner of the Court Annexure A (360419, pdf)

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: 13 April 2023