Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council

Summary of merit issues

1. The parties disagreed as to whether the proposed modification, in particular the height breach, but also the increased density, bulk and scale, reflected the intended future character of the street and area under the planning controls. Other Council concerns were the proposed side setbacks, overshadowing of adjoining properties at the rear fronting Weyland Street, and adequacy of solar access and cross ventilation for the proposed apartments.
2. To argue character compliance, the applicant relied heavily on a plan with a table prepared by Mr Bull and attached to the planners Joint Report (Exhibit 4) referred to as the Built Form Street Block Study (the Block Study). It covered the extent of the redevelopment block comprising some 12 properties.
3. Mr Bull argued that the Block Study demonstrated that there were a number of 6 storey developments under construction, approved or proposed in the redevelopment block, both in Weyland Street and in Canterbury Road. Remaining sites were yet to be developed but could also be expected to develop to a similar height. He also considered that 13-15 Weyland Street had been built above the approved height.
4. However, the Council argued that, irrespective of the number of storeys, all of the approved buildings complied with the height limit other than breaches which had been approved to accommodate rooftop communal open space. The only exception was 1562-1568 Canterbury Road which had been approved prior to the amalgamation of Canterbury and Bankstown Councils by the former Canterbury Council. Ms Porter argued this development was an anomaly in the streetscape and not what the controls sought to be developed, albeit accepting it existed. Further, the height proposed in the modification application would slightly exceed the height of this anomalous neighbour.
5. In oral evidence, Mr Seton took Mr Bull through each of the properties in the redevelopment block questioning his conclusions. Based on this evidence, Mr Seton concluded that most of the properties were, or would be, redeveloped to be either 5 storeys or height compliant, contrary to the Block Study findings.
6. In this regard, Ms Porter advised that the B5 zoned properties in Weyland Street were able to be up to 6 storeys yet height compliant as they either had lower floor to ceiling levels or the sites had been partially excavated. Further, these properties were not immediately adjoining the northern side of properties being redeveloped, as was the case with the appeal site (and other properties fronting Canterbury Road), where overshadowing impacts from development were greater.
7. It was agreed that the proposed highest elements proposed by the modification would likely be visible from development some 40m away on the opposite side of Canterbury Road and when driving west as a distant view down Canterbury Road. Mr O'Gorman-Hughes submitted that this would only be the case until properties were redeveloped. Ms Porter disagreed as the development permissible further east along Canterbury Road adjoining Bramhall Avenue was to a lower density and height, and would therefore not necessarily screen the additional height.
8. The applicant tabled plans, amended throughout the hearing to be accurate, which sought to demonstrate that the overshadowing of what was now proposed would be less than that of a height compliant development. There was much debate and evidence on the accuracy of these plans, what they demonstrated and their relevance.
9. Mr Seton maintained that the overshadowing could be up to an additional storey over that caused by the approved development. Further, 9-11 Weyland Street immediately south of the site was assessed and approved knowing what been approved on the appeal site and the extent of impact, which would be increased by the modification.
10. Mr Bull agreed that was there would be an increase in overshadowing of adjoining buildings but did not consider a storey of extra overshadowing significant. There had been no objections from neighbours. What was proposed was consistent with the extent of overshadowing in the built context given the building forms but there would still be some solar access, given what he referred to as a 'roving shadow', to the northern facades of Weyland Street developments. Further, outside of mid-winter, there would be no significant impact. Finally, properties on the northern side of Weyland Street had a commercial zoning and new residents would have a higher tolerance level for impacts given such a zoning.
11. Mr Candido advised that he had endeavoured to replicate the likely outcome from development of adjoining lots in order to consider the overshadowing from the modification application relative to a 'compliant' development. However Ms Porter queried whether or not every site would develop to the maximum planning controls noting that some approvals were not for development to these maximum controls or had conditions of consent requiring amendments.
12. Ultimately, Ms Porter indicated however, that she was generally happy with the overshadowing analysis other than at 9am in mid-winter. Mr Seton however, queried the accuracy of the solar access plans and submitted that, irrespective, a compliant development was that which had been approved, and considering any other hypothetical 'compliant' development was irrelevant.
13. Mr O'Gorman-Hughes noted the Court's decision in Tricon Services Group Pty Limited v Manly Council (No 4) [2012] NSWLEC 238 where Lloyd AJ at [16] did not accept that it was either irrelevant or inappropriate to compare a proposed development that did not comply with the height, with a building that would comply stating: "…This has long been an accepted way of testing whether a departure from a development standard is unreasonable or unnecessary in a particular case…"
14. Both parties referenced Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. Mr O'Gorman-Hughes noted the finding of Preston CJ at [88], that it was the wrong test for a Commissioner to apply, in considering a cl 4.6 request for a height breach, to require a non-compliant development to have a better environmental outcome relative to a compliant development. Further, at [38], to meet the objectives of the height standard, the requirement was to minimise impacts not to have no impacts or less impacts.
15. However, Mr Seton noted the finding at [87] that, in summary, there is no test required to compare a non-compliant development with a compliant development.
16. Given there was a difference of opinion about the assumptions and methodology used to calculate solar access, the experts also did not agree on how many of the proposed units in the modified development would achieve the required solar access or no solar access. Ms Porter accepted that there would be a decreased percentage of units receiving no solar access but only because the number of apartments was increased. The actual number receiving no solar access would remain the same.
17. Ms Porter was also concerned that insufficient units received adequate cross ventilation and the reliance on plenums to provide adequate ventilation. Mr Candido argued single aspect apartments can rely on plenums albeit he accepted that is not what the ADG says. Mr Seton also submitted that plenums provided natural ventilation not cross ventilation. However, Mr Candido considered they could be relied upon to provide both.
18. Finally, Ms Porter argued that the modification proposed would result in a development out of character in the streetscape and not reflecting the desired future character of the area. She did not consider development in Weyland Street to be relevant in terms of determining an appropriate streetscape outcome for Canterbury Road, and re-iterated that 1562-1568 Canterbury Road adjoining to the west was an anomaly and not reflective of what was desired in the street. It could therefore not be relied upon, being the only precedent in this section of Canterbury Road, to justify the height, density and scale sought. She also did not consider it a precedent to have nil side setbacks as was sought.
19. Mr O'Gormon-Hughes referenced the decision of Commissioner Gray in Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 (Gejo) as being particularly relevant as it granted consent to the property at the rear, 11-13 Weyland Street, despite that development also containing 6 storeys and a rooftop communal open space and breaching the height control. Her reasons were in part due to the design extending approved adjoining development form, and the actions of the Council approving other 6 storey developments and breaches in the area thus abandoning the height control and determining the emerging character.
20. Mr O'Gormon-Hughes submitted that, as there was no FSR control for the site, there is no intention to control bulk and scale, and therefore density, on the site. Further, there are no DCP side setback controls other than in residential zones so the site could be developed with nil side setbacks, noting the development to the west already presents in this way. He also queried why there was a need for building separation for mixed use development. He submitted that the development would have acceptable streetscape impacts extending the shape of the building to the west and had been designed sympathetically to adjoining development. The alternative of blank walls to side boundaries would not be a desirable built form outcome.

Findings

1. As granting consent to the modification application is conditional upon the Court being satisfied that the modification sought would result in a development substantially the same as the approved development, and having regard to the reasons why the consent was granted, I firstly need to deal with that pre-condition.
2. On the evidence, including those extracts from the Council bundle referenced, and the consent itself, approval to the original development was supported by the Council by way of a s 34 agreement on the basis that the development was amended to comply with the maximum height permitted by the LEP, did not constitute 6 storeys, and had a reduced density in terms of the number of apartments proposed. Consent was issued by the then Senior Commissioner of the Court with the Court orders reflecting those agreed by the parties contained in the s 34 agreement, as is required under s 34 of the LEC Act: see City Projects.
3. The only reasons given for the Court's consent in City Projects, reflective of the Court's practice at the time, were those provided in a standardised judgment format which simply reflected the terms of the decision made by the parties in the s 34 agreement. They therefore merely indicate that the presiding Commissioner was satisfied that the decision of the parties to the agreement was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act) and, consequently, the Court's decision was required by the LEC Act to be in accordance with the decision of the parties: s 34(3)(a).
4. In making the orders to give effect to the agreement between the parties, the Court therefore did not, and was not able to, make any merit assessment of the issues that were originally in dispute between the parties, including the proposed height and density, providing both were lawful, as they were.
5. I do not however, accept the applicant's position that, having regard to s 4.56(1A) of the EPA Act, being to take into consideration the reasons given by the consent authority for the grant of the consent, as the Court was the consent authority and gave no merit reasons for the original approval, that the merit reasons behind the Council supporting the development (as approved) should not be considered.
6. Even if I am not correct in that, the Court consent requires the development to proceed in accordance with the referenced approved plans, which are height compliant and reflect a certain density, and with the conditions of consent, which include requiring compliance with the 18m height standard, at condition 7.
7. If I am correct in my interpretation of the proper reading of s 4.56, it is that regard should be had to the reasons behind the consent; namely why the Council, who would, if not for the City Projects appeal, have been the consent authority for the approved development, supported the s 34 agreement enabling (in fact requiring) the Court to issue the consent to that development in terms agreed to by the (then) parties.
8. Whilst it is the case that the terms of the s 34 conciliation resulting in the Council supporting a specific consent are confidential, there was undisputed evidence that the original application was not supported by the Council, otherwise it would not have been the subject of the City Projects appeal, and it was only supported by way of a s 34 agreement once it was amended to respond to the Council's requirements to comply with the height and reduce the density.
9. In order to otherwise be approved, it would require that either the Council and the Court, through a s 34 agreement, or the Court on determination of the appeal, were satisfied, by the upholding of a cl 4.6 request prepared by the applicant that it justified the height breach sought. Given the documentation referenced by the Council in the proceedings, but not directly comprising part of the conciliation itself, it is clear that the Council would not have upheld such a cl 4.6 request. The Court would therefore not have been presented with the s 34 agreement which enabled the Court consent to be issued for the development that was approved. That is the development now sought to be modified.
10. I do not accept that removal of the sixth storey, height compliance, and a reduced density were not the primary aspects of the original approval. These were the three aspects quoted in the Council Report on the outcome of the City Projects appeal which were required by the Council to be amended and which were amended by the then applicant. The height compliance was reinforced by the modified approved plans and agreed condition 7. It is clear from the admissible evidence that the Council would otherwise not have supported the s 34 agreement, and the Court could not have made the orders to issue the consent now sought to be modified.
11. As I have indicated, the Council Report on the outcome of the s 34 agreement, and other applications before the Court, indicated that the development was only acceptable because of the reduced height and density. Modifying these elements was therefore a material and essential aspect in order to gain the Council's support for the granting of consent which then became the consent required to be issued by the Court.
12. These were the circumstances in which the development consent was granted. In this regard, the circumstances are different from Commissioner Tuor's decision in Ahmad where she determined that it was speculative to conclude that the height was an essential element of the approval issued by way of a s 34 agreement as this was not evident from the readily identifiable circumstances leading to that agreement.
13. As Mr Seton noted, amendments required to a development in order to gain approval are dealt with in Innerwest 888 where at [56], Commissioner Morris had regard to changes required in order to make a development acceptable to the Council. The changes included lowering the building's height and that change was, in her view, an essential element of the Council's determination and approval, reinforced in the consent conditions.
14. In Moto Projects, Bignold J found that the comparative task required to be undertaken by the Court under s 4.56 does not merely involve a comparison of the physical features or components of the approved development. Rather, comparison involves an appreciation of the qualitative as well as quantitative aspects of the development being compared in the proper context including the circumstances in which the approval was granted.
15. In that regard, factors that are known to be 'important, material or essential' in the issue of the original consent are central to the comparison assessment of what has been approved and what is now proposed. Height and density in this instance were such factors, and known by the applicant, and the applicant's architect, to be so.
16. Further, in Moto Projects at [71] Justice Talbot states that the focus of such an assessment "may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development". In my view, that critical element is the height but also, to a lesser degree, the density.
17. I also note in Moto Projects, the comments of Justice Talbot at [51] that placing undue reliance on the modification representing only a fraction of the development was legally flawed. Therefore, the applicant's submission that increasing the height as proposed is by only 1% of the approved overall height and therefore is a minor increase, and notwithstanding that the height would then be more than 34% above the approved and permissible maximum height, is also legally flawed and cannot be relied upon to support the finding that the proposed modification is substantially the same, from a quantitative perspective, as the approved development.
18. From a quantitative perspective, I do accept that what is approved remains a multi-storey mixed use building and what is proposed may not, arguably, result in a radical transformation of the development, which is one of the considerations applied to determine if the modification proposed would result in substantially the same development.
19. However, as I found in FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300, the test goes beyond whether a development requires a radical transformation in order not to be substantially the same as the approved development.
20. In that decision, I referenced Innerwest 888 but also the Court's decision in Pozzobin v City of Canada Bay Council [2014] NSWLEC 1143 where then Commissioner Dixon was not satisfied, after a qualitative and quantitative comparison of the modification and the original consent, that the development would be substantially the same if certain conditions of consent were removed.
21. In arriving at that decision, she had regard to the circumstances in which the original consent was granted as evidenced from a planning assessment report prepared by a Council officer. The approved development encompassed the amendments required by the conditions which she determined were part of the design and ultimately the consent. She concluded at [48], in part, that conditions could not be unnecessary in circumstances where they were imposed after a merit assessment to make the development acceptable.
22. Such is also the case for condition 7 of the consent sought to be deleted in this appeal.
23. From a quantitative perspective, it is also relevant to note the concerns of the RMS, and the basis for the Canterbury Road Review, that adding additional density above that contemplated by the controls, adds to increased traffic not anticipated on Canterbury Road. Whilst it is the case that there is no FSR control for the site, the modification application proposes an 18% increase in the number of apartments; from 66 to 78. This is an example of precisely the additional density not contemplated by the controls that the RMS refers to. I also note the 78 apartments now sought is more than the number proposed in the original application, which was for 76 apartments not supported by the Council on the basis that even that number of apartments was too high and not contemplated by the controls.
24. From a qualitative point of view, the additional height will have additional impacts relative to those that arise from the approved development. It will change the extent and nature of overshadowing of the properties to the south in Weyland Street. Even if the extent of this change was not satisfactorily determined, I accept, as Commissioner Brown did in Statewide Planning, that, in effect, an additional storey above that approved (and without any other substantive design changes) must have additional overshadowing (on adjoining properties to the south).
25. In this instance, those properties are being redeveloped to a much greater density than exists today and having regard to the controls for sites to the north, including the appeal site. They are particularly susceptible to overshadowing being south of properties fronting Canterbury Road. As Mr Seton pointed out, the most recent approvals (including for 9-11 Weyland Street issued by the Court to the rear) have been the subject of overshadowing analyses assuming developments to their north would be built in accordance with approvals and/or with the planning controls including to a maximum height. In this context, additional overshadowing makes a material and qualitative difference to a number of approved, proposed or likely future apartments in developments immediately adjoining to the south (rear).
26. It is in this context of the site, and the circumstances of the original approval, that I have concluded that, from a quantitative and a qualitative point of view, there are sufficient grounds to determine that the development is not substantially the same as, being materially different to, that which has been approved.
27. My findings are not at odds with Justice Moore's decision in Bassett and Jones. It is not the fact that the height standard is proposed to be breached that causes the modification application to transmute into one which is not substantially the same as the approved development. It is the circumstances that lead to the original consent being granted. Namely, that consent was only supported by the Council because the height would not be breached, the s 34 agreement would not otherwise have been entered into, and the Court would not have issued the consent in accordance with the agreement. These are the relevant reasons behind the consent that was granted having regard to the requirements of s 4.56 of the EPA Act.
28. Given these findings, I have no power to consent to the application and accordingly, the appeal is required to be dismissed.
29. Given my findings in relation to there being no power to approve the modification application, it is not necessary to deal with the Council's remaining contentions.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Modification Application No. DA-406/2016/A for a mixed use development at 1552-1560 Canterbury Road, Punchbowl is refused. 3. The exhibits are returned except Exhibits A, D, E and 1.

---

Jenny Smithson 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: 04 July 2019