Statewide Planning Pty Ltd v City of Canterbury Bankstown

The site

1. The site is regular in shape with a frontage of approximately 55.78m to Canterbury Road, a western frontage of approximately 25.85m to Chelmsford Avenue, an eastern side boundary of 48.77m and a southern side boundary of 60.45m, with an area of 2,285.5 sqm. The site is currently cleared of all structures.
2. The streetscape of this portion of Canterbury Road is characterised by a mixture of low to high density residential, commercial and industrial development. The site is located in a transitional area with institutional uses to the north-east (Canterbury Hospital), a recently approved mixed commercial/residential development directly adjacent to the east, mixed commercial/office uses further to the east, light industrial uses to the rear/south, commercial/bulky goods retailing to the west and a 6 storey mixed use residential and commercial building to the north. Adjoining directly to the south of 580 Canterbury Road, are single storey residential dwellings, with a frontage to Chelmsford Avenue.

Relevant planning controls

1. The site is located with the B5 Zone - Business Development Zone of Canterbury Local Environmental Plan 2012 (LEP 2012). For the site, cl 1 of Sch 1 of LEP 2012 requires that: "Development for the purpose of residential accommodation is permitted with development consent, but only as part of a mixed use development". The B5 zone objectives are: • To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations.
2. Clause 4.3(2) provides that 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"; the maximum height being 18m. The maximum height is 28.85 to the top of the lift over run.
3. The height objectives are: (a) to provide effective control over the bulk of future development, (b) to protect the environmental amenity and desired future character of an area, (c) to minimise adverse environmental impacts on adjoining properties and the public domain, (d) to optimise development density within easy walk of the railway stations and commercial centres.
4. The proposed development exceeds the maximum 18m height and a written request under cl 4.6 was provided to support the variation to this development standard.
5. Clause 4.4(2) provides that the "maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map". The site and other sites in the B5 zone do not have a maximum floor space ratio (FSR) shown on the Floor Space Ratio Map so there is no applicable FSR for the site.
6. Canterbury Development Control Plan 2012 (DCP 2012), as in force prior to 30 January 2017, applies.
7. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

Can the variation to the height standard be supported?

1. Expert town planning evidence was provided by Mr Stuart McDonald for the council and Mr Ian Stewart for the applicant. Mr Nigel Dickson provided urban design evidence for the applicant and Mr Peter Smith provided urban design evidence for the council. The development standard
2. Clause 4.3(2) provides that 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"; the maximum height being 18m. The requirements
3. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state: 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 The height objectives
4. The height objectives in 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, (d) to reinforce important road frontages in specific localities. The extent of the breach
5. The experts agreed that the breach of the 18m height standard is 6.48m to the roof slab and 10.85 to the lift over run. The written request
6. The written request states that compliance with the development standard is unreasonable and unnecessary in the circumstances because the proposed development seeks to gain approval in line with the intended strategic direction for heights which council has resolved, but has not yet completed. The proposed height is the same as the adjoining site to the east which is already approved at 8 storeys. This site is a corner block and the strong corner element represents an appropriate design outcome for the precinct.
7. The written request further states the approved building has ensured the zone objectives are achieved. Two additional residential floors and a strengthening of the corner element increases the proposals support of these objectives. Therefore the proposed development is consistent with the objectives of the zone.
8. In relation to the height objectives, the written request addresses each objective individually. The proposed development is consistent with the objectives of the height of building standard for the following reasons. Objective (a) - to establish and maintain the desirable attributes and character of an area
9. This site and immediate locality has been the subject of ongoing review by council to consider its redevelopment in light of the transitioning nature of this former light industrial area and Canterbury Road. A Residential Development Strategy (RDS) has been undertaken by council, the purpose of which was to review, assess and recommend on additional requested zoning changes and changes to densities and heights. This RDS was endorsed by council at their meeting of 31 October 2013. On 14 May 2015 council resolved to prepare a planning proposal to increase of the building height for this site from 18m to 25m.
10. The desired future character of this area is to strengthen the urban structure of Canterbury, including complementing the institutional uses to the north-east (Canterbury Hospital) and to accentuate the mixed use centre along Canterbury Road to create a 'mixed use pedestrian orientated centre.' The proposed development adds 2 additional levels to the approved 6 storey mixed use building. This is consistent with the desired future character of this locality. It provides a logical approach to allowing a development to achieve its full potential on the site. Objective (b) - To minimise overshadowing and ensure there is a desired level of solar access and public open space.
11. The architectural plans (as amended) demonstrate that the proposed development satisfies this objective and achieves a suitable level of solar access. No change to the open space is proposed. Objective (c) - To support building design that contributes positively to the streetscape and visual amenity of an area.
12. The approved mixed-use development is proposed to be improved as part of this application to increase the building height as it will strengthen the corner element presentation of the building and improve the visual amenity of the area. This demonstrates a design which is responsive to the existing character of the Canterbury Road locality, as well as the desired future character. The approved design has been examined and proposed amendments have been prepared in consultation with council. This proposal offers a quality design outcome, in line with council's desired future character for the area.
13. Objective (d) - to reinforce important road frontages in specific localities.
14. The written request states that the proposed development is consistent with this objective.
15. The written request states that development demonstrates sufficient planning and environmental grounds to permit the variation, as demonstrated above. In particular, the following factors should be considered: - the main building form is within the 25m building height control as endorsed by Council at its meeting of 14 May 2015, the proposed bulk and scale is compatible with the future desired character of neighbouring sites along Canterbury Road, the proposed development is compatible with surrounding land uses to the rear and provides an appropriate height and land use transition, the departure from the maximum building height will not result in any additional significant adverse amenity, the context within which this proposal is made is a growing international city, and the traffic increases from the additional units is modest.
16. For these reasons, the objection is well founded in this instance and the granting an exception to the development standard can be supported in the circumstances of the case. The council's response
17. Mr McDonald responds to the written request in detail, with Mr Smith concurring with his comments.
18. Mr McDonald states that the variation is not consistent with the second zone objective, which states; To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design."
19. Mr McDonald states that the height of the development when viewed from Canterbury Road, Chelmsford Avenue and from adjoining and nearby residential properties in Chelmsford Avenue will be inconsistent with the desired future character anticipated by the suite of planning controls applying to the land. The proposal is for 2 additional residential floors and communal open space and associated works on the roof substantially above the building height development standard, in total being more than 2 storeys higher than anticipated by the council's planning controls.
20. When compared to the standard of design of the approved development (arising from a development including a relatively minor departure from the development standard), the proposal relies on a significant breach of the development standard and Mr McDonald considers this to be a poorer design outcome in the streetscape and when viewed from adjoining and nearby residential properties in Chelmsford Avenue.
21. Mr McDonald addresses each of the height standard objectives individually, as did the written request, but with different results. Objective (a) - to establish and maintain the desirable attributes and character of an area
22. Mr McDonald states that the establishment of the desired future character of the area is reflected in the suite of planning controls applying to the land. The proposal is for 2 additional residential floors and communal open space and associated works on the roof above the building height development standard, in total being more than 2 storeys higher than anticipated. The impacts of the development are inconsistent with the desired future character.
23. Mr McDonald states that contrary to the comments in the written request; there is no council policy position for amending the building height development standard to 25m; there is no adopted or exhibited draft LEP amendment. More relevantly, on 26 July 2016 the council resolved to undertake a strategic review of the Canterbury Road corridor, which includes the site. The review was to make recommendations in regards to: appropriate zoning, urban design and built form controls along the corridor, measures to address environmental issues including noise and pollution, and traffic, transport and car parking issues.
24. On 25 July 2017 the council considered the detailed and comprehensive strategic review documents and recommendations included in the Canterbury Road Review (the Review). The council resolved to: endorse the Review, attachments and recommendations endorsed by the Steering Committee for exhibition, to undertake exhibition as detailed in the Review, require a report be provided to council after the exhibition period, and to progress the resourcing recommendations as outlined in the Review.
25. Mr McDonald states that the Review is a strategic document that paves the way for further more detailed analysis and planning, it is not a Planning Proposal and is not a draft LEP amendment. It does identify some locations for concentrations of mixed use development and multi-unit housing and a further 11 localities to provide for housing in a mixed use development, aligned with long term plans for future open space and other improvements. An indicative built form with a maximum of 6 storeys is nominated.
26. The site is not situated within locations for concentrations of mixed use development and multi-unit housing but does appear to be within one of the further 11 localities, although there are no details as to possible amended planning controls. The council has resolved to not proceed with any past Planning Proposals for any sites on Canterbury Road until such time as the ongoing strategic work is completed.
27. While the written request places a heavy reliance on a 25m height control, it should be noted that, the proposal as lodged and as amended, is significantly higher than 25m. Objective (b) - To minimise overshadowing and ensure there is a desired level of solar access and public open space.
28. The breach of the development standard does not minimise overshadowing but instead increases overshadowing to residential properties in Chelmsford Avenue and impacts on additional properties, compared to the approval. The additional overshadowing from the additional 2 storeys, according to Mr McDonald, affects 5 residential properties to varying extents. Based on the applicants shadow diagrams, the additional overshadowing from the 2 additional levels results in: 9am - additional shadow to habitable windows of 8 Chelmsford Avenue. 10am - additional shadow to habitable windows of 8 Chelmsford Avenue. 11am - additional shadow to the rear garden and habitable windows of 8 Chelmsford Avenue and additional shadow to the rear garden of 10 Chelmsford Avenue. 12pm - additional shadow to habitable windows of 8 Chelmsford Avenue and additional shadow to the rear garden of 10 Chelmsford Avenue. 1 pm - additional shadow to rear garden of 6 Chelmsford Avenue. 2pm - additional shadow to rear garden and habitable windows of 8 Chelmsford Avenue. 3pm - additional shadow to rear garden of 12 Chelmsford Avenue and 14 8 Chelmsford Avenue and habitable windows of 8 Chelmsford Avenue.
29. Mr Smith states that as an area in transition, retaining opportunities for solar access are even more prudent to retain. The permitted forms of housing in the adjoining R3 zone in the form of multi-dwelling housing (including terrace houses and town houses) often have limited opportunities for solar access with ground level courtyards and small footprints. The shadow cast by the approved development has a significant impact on nearby properties that significantly reduces the existing solar access. The further reduction of this solar access is not acceptable. Solar access that was previously available for 2 hours is now reduced to about 1 hour for 4 and 6 Chelmsford Avenue. Number 2 Chelmsford St is an isolated site and now receives no effective solar access.
30. Objective (c) - To support building design that contributes positively to the streetscape and visual amenity of an area.
31. The height of the development when viewed from Canterbury Road, Chelmsford Avenue and adjoining and nearby Chelmsford Avenue residential properties will be inconsistent with the desired future character anticipated by the suite of planning controls applying to the land. The proposal is for 2 additional residential floors and communal open space and associated works on the roof above the building height development standard, in total being more than 2 storeys higher than anticipated.
32. An 8 storey building has been approved on the adjoining site to the east at 548-568 Canterbury Road, including upper level setbacks to Canterbury Road to Levels 7 and 8 of 11 m to 12.5m. That development does not adjoin residential land and instead backs on to land zoned Industrial IN2. Opposite the subject site is an approved 6 storey development at 585-589 Canterbury Road. There are a range of approvals along Canterbury Road ranging in height from 5 to 8 storeys.
33. Objective (d) - to reinforce important road frontages in specific localities
34. The proposal is not inconsistent with this objective but compliance with the development standard would similarly achieve the objective.
35. Mr McDonald states that the applicant's cl 4.6 request has not justified why compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The desired future character for the site and the area is able to be derived from reference to the suite of planning controls, which includes the 18m building height development standard. In practical terms, a mixed use building with ground level commercial space and upper level residential floors equates to 5 to 6 storeys maximum. The further and significant breach of the development standard results in a scale of development that is inconsistent with the suit of planning controls applying to the land and so will not achieve the desired future character envisaged by these controls.
36. Importantly, there is no council policy position in the form of a Planning Proposal or draft LEP amendment to change the 18m height development standard for this site, or any other sites on Canterbury Road. In addition, the increased height proposed in the subject application does result in additional overshadowing impacting on residential properties located in Chelmsford Avenue. For these reasons, the variation to the height standard cannot be supported.

Findings The assessment framework

1. Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
2. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
3. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. Zone objectives
4. I agree with Mr McDonald that the only zone objective that is remotely relevant is the second objective that seeks" to create an attractive streetscape supported by buildings with a high standard of design". In my view, it could reasonably be argued that the proposed 8 storey building creates an "attractive streetscape" and has "a high standard of design". These matters do not necessarily address height.
5. I am satisfied that the proposed development is not inconsistent with zone objectives.
6. Height standard objectives
7. In considering the different evidence on consistency with the height standard objectives, I have little trouble in accepting the evidence of Mr McDonald and Mr Smith. In summary, I agree that: "the desirable attributes and character of an area" are reflected in the planning controls that exist at the time and not random variations that have been approved nearby. Any reliance on the 2013 RDS to support the additional 2 levels is misplaced given the council's resolution to not proceed with any past Planning Proposals for any sites on Canterbury Road until such time as the ongoing strategic work is completed.by the Review (objective(a)), the development does not "minimise" overshadowing but not surprisingly given the additional height and orientation, actually increases the amount of overshadowing, to the extent described by Mr McDonald in his evidence (objective(b)), and the additional height does not "contribute(s) positively to the streetscape and visual amenity of an area" given that it is inconsistent with the desired future character anticipated by the planning controls for the site (objective(c)).
8. Pursuant to cl 4.6(4)(a)(ii). I find that the proposal is inconsistent with the adopted objectives of the height development standard. Is compliance with the development standard is unreasonable or unnecessary?
9. I accept that the applicant has not justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
10. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I accept that the applicant has not established this to be the case. Are there sufficient environmental planning grounds to justify contravening the development standard?
11. For the reasons in the preceding, I am satisfied that the applicant has not provided sufficient environmental planning grounds to justify contravening the development standard.

Other contentions

1. Having found that the height standard should not be varied the development application must be refused. Consequently, it is not necessary to deal with the other contentions.

Orders

1. The orders of the Court are:
2. The appeal is dismissed.
3. Development Application No. 510/2015 for the construction of two additional residential storeys above an approved 6 storey mixed use development at 570-580 Canterbury Road, Campsie is refused.
4. The exhibits are returned with the exception of exhibit 2.

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G Brown 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: 12 September 2017