Planners
59The experts agree that the LEP as it applies to the application has maximum height controls of 12m and FSR of 4.1:1 but disagree on the calculation of the height of the proposed building. Mr Sanders says that it is 44.7m and Mr Darroch says that it is unless the existing ground level was taken to be the excavated basement level of the building currently on site it is 40.7m to the proposed lift overrun. They agree that Amendment 8 to the LEP varies these development standards to 25m (height) and 2.4:1 (FSR).
60Mr Sanders says the maximum height is exceeded by 32.7m noting that the site is located within an area which has been zoned for high density residential development but in which there has not been any developments undertaken consistent with that zoning and the development standards which apply. No 9 has been approved with a height, according to the assessment report, of 24.6m and FSR of 2.46:1, consistent with the new height control. He says that the area zoned for high density development is characterised by a range of buildings with none having heights similar to that which is proposed and the context in which the site is located should be considered. The proposed development, which would be some 50% higher than No 9 and very much higher than any other building in its vicinity, would appear as an incongruous and intrusive element in the streetscape and would, as a consequence, detract from and have a materially adverse impact on the amenity of the public domain. He considers these impacts are exacerbated by the form of the development sited on a podium that presents as a three-level structure, rising nearly 10m above ground level, to Mafeking Avenue, further exacerbated as a consequence of the elevation of the site above the level of that street.
61Mr Darroch says there is a mismatch between the height and FSR development standards. It is common ground that it would not be possible to build a RFB on the site that complied with the maximums provided for in both standards. He says that the development approved at No 9 is higher than suggested in the assessment report and would be even higher as a result of the conditions of consent that require additional clearances for service access and the provision of access to the rooftop terrace. He took the Court to levels of the site and those shown on the plans and I accept that the development as approved even without the amendments required to comply with the consent conditions would exceed the 25m height development standard that now applies to the site.
62Mr Darroch says the council abandoned the new planning controls even before they were gazetted with the development at No 9 so non-compliant with the existing suite of DCP and RFDC controls and the amended LEP control that redevelopment of the subject site is significantly compromised, due to its proximity to the approved building to the southern, common boundary with the site. The non-compliance with the controls of No 9 lead to the requirement to accommodate and off-set for those breaches on the subject site with increased setbacks and additional height. He notes the areas of non-compliance for No 9 as including height, setbacks, solar access, podium height/excavation, FSR, open space and cross ventilation.
63Mr Darroch says that the consequence of the consent for No 9 is that the proposed development must be higher so that it can achieve the solar access controls. He says, subject to the conditions that address balcony sizes, the design is compliant with all controls other than the LEP height control and the DCP height for basement above ground. The breach to the height of basement above ground level arises from the site being located directly above the LCT which restricts the extent of excavation however he notes the height of the podium is consistent with the adjoining site (No 9).
64The FSR of the proposal is 3.13:1 which, according to Mr Sanders, exceeds the new maximum FSR by some 1,800sqm but complies with the 4.1:1 development standard that applied to the site at the time the application was lodged. He says the breach of the new FSR is a further manifestation of the extent to which the proposed development may be considered to be inconsistent with the DFC of the locality, reinforcing his proposition that the development is of an excessive bulk and scale and has adverse impacts on the amenity of the locality.
65Mr Darroch says that the FSR of 4.1:1 has applied to the site since 2009 and must clearly be considered to be the anticipated and desired bulk and scale of the DFC of the area.
66Mr Sanders says the podium, due to its height above ground level, encroaches what should be a 6m side boundary setback (4m proposed) and there are adverse impacts associated with the visibility and usability of that space. Mr Darroch says that these concerns can be addressed by using the excavated material to raise the deep soil setback to align with the finished podium level at No 9 with a terraced and banked transition to Mafeking Avenue. Mr Darroch says this will reduce the impact of the podium when viewed from Mafeking Avenue. Plans were prepared to show how this could be achieved and the applicant seeks consent for these amendments shown on amendment landscape plans (Exhibit W). Those plans also address Mr Sanders' concerns in relation to privacy to open space allocated to the ground floor tenancies by allocating private courtyards to those units however he says the ground level communal area is just a landscaped area with pathways and the only area of any utility is the roof terrace. He says some aspects of the proposal are better however some are worse, particularly the introduction of retaining walls adjacent to the driveway entry off Mafeking Avenue.
67In response to the contention of inconsistency with the DFC, Mr Sanders cites the design principle for Context in clause 9 of SEPP65 which is in the following terms:
Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.
Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.
68He says the site is in an area undergoing transition with development anticipated in the context of the now applicable high-density residential zoning and the breach of the height controls (both currently applicable and recently amended) results in a building which will appear as an incongruous and intrusive element with these concerns being further reinforced by virtue of the area to the south west being zoned R2 Low Density Residential and characterised by low-density, single dwellings. Such an interface, with only the street providing a buffer, makes it all the more important for any development in the high density residential area in which the site is located to comply with the development standards such as the height control and only in this way will there be an appropriate interrelationship between the two zones and the development within them.
69Mr Darroch says that the relationship is characteristic of development under the LEP which zones sites along highways and corridors for high density with R2 zones on the opposite side of the street that runs parallel to those roads. He referred to the relationship in Marshall Avenue St Leonards as typical of such an arrangement. He says the proposal would be higher than its surrounds but this is clearly an area in transition which is intended to change in this way. He considers the height of the proposal is appropriately accommodated on the site as evidenced by the compliance of the building envelope and the high levels of amenity retained for the surrounding properties and for the future occupants. The bulk and scale is consistent with that envisaged by the 4.1:1 control and provides an appropriate compromise between the control and the amended control.
70The applicant provided additional information during the hearing that addressed the contentions in relation to additional information including BCA compliance, areas of communal open space, landscaping and usage of rooftop terrace and accessibility.
71The experts agreed that the contentions regarding provision for private open space and accessibility could be addressed by conditions and these have been incorporated into the draft conditions provided to the Court after the hearing.
72Those conditions are agreed with the exception of the allocation of adaptable units. The parties agree that 19 units should be provided however the applicant proposes to allocate those units as units 01, 07 and 08 on levels 1-6 and unit 02 on Level 10. That would provide for 12 x 1 bedroom units and 7 x 2 bedroom units. Mr Sanders says that the distribution should, as required by the DCP, be equitable, and this requires the allocation to be proportionate to the unit mix. As a consequence, the council proposes an alternate condition that requires 8 x 1 bedroom, 9 x 2 bedroom and 1 x 3 bedroom units to be adaptable.
73Mr Darroch disagrees with Mr King in relation to the effect of the development on the redevelopment of the lots to the south in Gatacre Avenue. He had prepared a hypothetical building envelope applying the Amendment 8 development standards and DCP controls, sketched that envelope (Exhibit T) and superimposed it on Mr King's shadow diagrams (Exhibit U). He says these demonstrate that it is possible to construct a complying development on the adjoining site that would meet the 2 hour solar access requirements for 70% of the dwellings.
74Mr Darroch, in acknowledging the increased height proposed would cast shadows beyond that cast by a 12 or 25m high structure, says the impact of that shadowing as shown on Mr King's diagrams must be considered against the heavy vegetation within those properties to the west of Buller Lane.
75These experts held opposing views as to whether the additional height above the 25m would be noticeable. Mr Darroch says that you would be looking more at No 9 when walking east up Mafeking Avenue and it would become more obvious as you get closer to the site. Mr Sanders disagreed and says you will see the building height and it will be very prominent.