The Trustee for Gordon Cres Development Unit Trust v Lane Cove Municipal Council

Land and Environment Court (NSW)|2019-03-22

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of an amended development application for a residential flat building containing 69 residential apartments over 2 levels of basement car parking on land at 89 - 90 Gordon Crescent Lane Cove North (the site) by the Lane Cove Council (the Council).
The background to the application and the relevant statutory controls are outlined in the Council's Amended Statement of Facts and Contentions (ASOFC) and the applicant's reply.

Facts

The relevant facts can be stated shortly. The site is located on the northern side of Gordon Crescent and is made up of 4 separate lots which are proposed be consolidated. The site is the last remaining 4 lots available in the Crescent for redevelopment.
Each of the 4 lots is currently occupied by a dwelling which is proposed to be demolished. The site contains vegetation and significant trees which are proposed to be removed.
The land has a fall of approximately 17m from northeast to south west and a total site area of 3,879m2.
The site is located within the R4 High Density Residential Zone pursuant to the provisions of Lane Cove Local Environmental Plan 2009 (LEP 2009) and the proposed development is permissible with consent.

Objectors

There are several objectors to the development including the members of the Stringy Bark Creek Resident Association. The objectors' written submissions are included in the Council's bundle. Some of the objectors supplemented their written submissions with oral evidence at the beginning of the hearing. The past president of the Association, Mr Hallowes was one of them. He read from the Associations' submission dated 29 January 2019 indicating the groups' concern about the impact of the development on the bushland/forest reserve in Batton Reserve opposite the site and the creek within it.
Generally speaking, the other objectors' concerns relate to increased traffic congestion at the intersection with Mowbray Road, the loss of significant trees and vegetation, the breach of the Council's height standard and amenity impacts such as overshadowing, solar access, construction noise for the adjoining apartments.

Proposal

There have been various iterations of the development since the development application (DA) was first lodged with the Council. The final design, which is the subject of this judgment, is detailed in the architectural plans marked Exhibit A, the landscape plan marked Exhibit D and the agreed conditions of consent in Exhibit 10 (the proposal).
The proposal has been assessed by the parties' experts including their town planners, urban designers, ecologists, traffic engineers and waste management experts and each of them now supports a conditional approval of the DA. They are collectively of the view that the amended design addresses the Council's contentions and the concerns raised by the objectors.
On that basis, the Council no longer presses the contentions in its ASOFC or opposes the grant of conditional development consent. Instead, it invites the Court to decide whether is appropriate to vary the height development standard in cl 4.3 of the LEP 2009 in accordance with the applicant's written request made pursuant to cl 4.6 of the LEP, and if so then assess the development against the lay and expert evidence as it presently stands.
The relaxation of the development standard is necessary in order to enliven my jurisdiction to deal with this appeal and ordinarily should be dealt with first. However, I have decided in this case that it makes better sense to give some detail about the changes to the proposal - which are directly responsive to the recommendations of the parties' planning and urban design experts. The experts to whom I refer include:

Peter Smith (Urban Design on behalf of the Council)
Rajiv Shanker (Planning expert on behalf of the Council)
Rohan Dickson (Urban Design Expert on Behalf of Applicant)
Kate Bartlett (Planning Expert on Behalf of the Applicant)

The recommendations or alternate design (which is now part of the proposal) was agreed by the planning and urban design experts at the time of their joint conferencing and reflected in two sketches which were annexed to their joint report as Appendix 2 and 7 (Exhibit 9). Because this joint report was only made available to the parties on the morning of the hearing an application was made after the site view for an adjournment of the proceedings to allow the applicant an opportunity to incorporate the recommended design changes into its plans overnight. The Council agreed to this course.
Again, with the consent of the Council, at the resumed hearing the following day the amended plans were substituted in the appeal. A further joint report prepared by the planning and urban design experts was also filed confirming that the amendments accorded with the design changes set out in Appendixes 2 and 7 (Addendum report dated 21 March 2019).
Having been satisfied of that fact, the Addendum joint report added the observation that the proposal now offered a vastly improved design that is compliant with all relevant statutory controls apart from a numerical non-compliance with the 14.5 m height standard most relevantly at the parapet and lift overrun as identified on the height blanket diagram in Drawing DA 800 (Exhibit G). The amendments that the planning and urban design experts 'consider to be improvements include:

A reduction in the number of units within the development from 88 to 69;
A reduction in the number of car parking spaces to align with the Council car parking controls - and thereby complaint parking spaces and swept paths;
A generous setback of the built form at the street frontage which is more than compliant with the bushfire protection controls and General Terms of Approvals (GTAs);
A built form that creates a gap at the northern part of the building -which improves amenity through increased solar and daylight access and view to sky from the apartments and the central courtyard;
Reduced building depth and width which provides greater solar access within the development and appropriate cross ventilation;
Resolution of unsatisfactory ceiling heights and thereby a greater internal amenity outcome;
A reduction in the breach of the height control and a consequential reduction in FSR to a compliant 1.6:1 - changes which improve the amenity outcome for the subject development and adjoining developments;
Achievement of relevant aims set out in cl 1.2 of the LEP 2009 in particular aims (2)(b), (c) and the relevant zone objectives;
Acceptable bulk and scale - with a 9m building separation between building A and B - with a reduction in the extent of the top floor;
Compliant number of storeys;
Appropriate communal open space on the roof with facilities and landscaping;
Increased and compliant deep soil landscaping;
Tree retention where possible and particularly the turpentine trees on the northern eastern boundary and /or tree replacement with relevant species including Turpentine in accord with the Councils' DCP (Conditions 1, 2 and 31 of Exhibit 10);
Less excavation of the site and rock face to that originally proposed - including pulling the excavation away from the NW boundary to increase deep soil planting opportunities on that interface for increased planting.

That said, the experts' support for the development also rests upon the imposition of the agreed conditions of consent set out in Exhibit 10.

Jurisdiction - Clause 4.6 written request

As earlier stated, the Court's approval of a variation to the development standard for height in cl 4.3 of the LEP 2009 is required in order to engage jurisdiction to entertain this appeal.
Clause 4.3 of the LEP 2009 provides: (1) The objectives of this clause are as follows: (a) to ensure development allows for reasonable solar access to existing buildings and public areas, (b) to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable, (c) to seek alternative design solutions in order to maximise the potential sunlight for the public domain, (d) to relate development to topography. (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. (2A) Despite subclause (2), the maximum height for multi dwelling housing on land in Zone R2 Low Density Residential is 5 metres.
As identified on the LEP Height of Buildings Map the site has a maximum building height of 14.5m.
The proposal requires a variation of the 14.5m height standard to allow a maximum height of 16.89m at the parapet located along the Gordon Crescent frontage at level 6 of the building. Noting that the parapet also functions as a balustrade for the communal open space. Despite this variation, the majority of the development conforms to the maximum height control. According to the applicant's cl 4.6 written request the development's non-compliance with the building height limit essentially stems from the unique topography of the site, which includes an approximate 17m fall from the rear (northern) property boundary to the Gordon Crescent (southern) property frontage. The written request nominates this feature of the topography as posing a significant design constraint in seeking to ensure compliance with the height control for the site.
The written request also states that the location of the maximum breach of the standard is at a part of the site beneath one of the existing dwellings footprint where the fall of the site is steepest. While some other small portions of the building are also proposed to be located above the height control the request submits that "…in no place is an entire storey located above the maximum building height" they are minor breaches with no consequent amenity impacts as is evident on the height blanket plan. Irrespective of the breach the written request seek to justify the proposed height on the basis that the development will remain consistent with the surrounding built from, and if approved, the development will provide a consistent development edge along the Gordon Crescent, which includes a setback above the fourth storey. Notwithstanding the non-compliance, the proposal is said to be consistent with and achieve the 4 objectives of the development standard in cl 4.3.

Subclause (3)(a) - consistent with the objectives of the development standard (Wehbe test 1)

After outlining the objectives of the standard, the written request then deals with each objective in order.
Objective (a) of the height standard seeks - to ensure development allows for reasonable solar access to existing buildings and public areas. The request states that the emphasis of this objective is on ensuring "allowance for reasonable solar access" to the nominated places. There is no need to demonstrate that the non-compliance has a neutral or beneficial effect relative to a compliant development: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action).
The written request states the proposed design has carefully accommodated the amenity of the adjoining development and the public domain. There has been a conscious reduction in the bulk and scale of the proposal from the eastern portion of the site beyond the minimum setbacks to ensure that the existing high density development to the south east continues to achieve a reasonable level of solar access compliant with the requirements outlined in State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and the Apartment Design Guide (ADG). Furthermore, it states that of the 23 apartments on the adjoining site, only 3 will have solar access to private open space reduced to below the 2 hours between 9am - 3pm mid-winter, which complies with the ADG Design criteria and Guidelines and is considered to be a reasonable solar outcome. Noting, that although these apartments are located below the existing ground level of the site, the design ensures they each receive solar access up to 10am during mid-winter.
The written request then states that any overshadowing of these adjoining apartments is not a result of any portions of the building envelope above the height control. Rather, the proposal has been designed to below the height limit on parts of the site that would give rise to adverse overshadowing, privacy and visual impacts on surrounding properties consistent with objective (b) of the standard. Furthermore, it states that the greatest impact on the adjoining property is located in the south eastern boundary where the building mass has been removed. In addition, the request identifies that with the use of appropriate screening where needed, and the proposed orientation of the building with appropriate setbacks from neighbouring properties has ensured privacy and appropriate visual impacts.
It also records that because the non-compliances with the height control are set back from side boundaries and centralised in the site, that the development has been designed to comply with the ADG design criteria of Section 3F in respect of visual privacy and outlook. In addition, the written request states that the development does not generate any privacy impacts for the public land opposite zoned E2 Environmental and avoids any unacceptable visual impact to that zone by providing a significant setback of the development from the Gordon Crescent frontage which in turn minimises the appearance of height adjoining this environmental zone.
With respect to objective (c), the written request states that the portions of the building that depart from the height limit do not create any additional overshadowing of the public domain. With respect to objective (d), the written request states that the development has been designed to relate to the south facing slope of the land with the building envelope largely conforming to the slope with a reduction in the height as the development approaches Gordon Crescent.

Wehbe Test 3 - objectives would be thwarted if compliance was required

At p 10 of the written request, the applicant also seeks to address subcl (3)(a) by reference to the third test outlined in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe).
On that basis, it states that the exceedence of the height control has largely resulted from the proposal seeking to maximise the solar access to the adjoining development to the south east and public domain consistent with the objectives (a) and (c) of the standard. The breach also results from an attempt to manage the significant slope and varied topography across the site - which is consistent with objective (b) of the standard, whereas the existing controls support a development constructed 6m to the eastern boundary and up to level 4. And, while orientating the development's bulk along this eastern boundary would improve the proposal's solar access, the written request states that this opportunity was not pursued in order to ensure that surrounding development maintained a reasonable level of solar access.
Instead, the design has avoided this impact by providing gross floor area in areas where it will ensure that surrounding development and the public domain continue to achieve reasonable solar access. To achieve this, floor area has been provided in some upper level bedrooms and living areas within the proposal, and this in turn has resulted in small variations to the height control. The written request makes plain the fact that strict enforcement of the development standard would encourage the proposed development to locate the gross floor area adjoining the eastern boundary, increasing the shadow impact on the adjoining development, which directly conflicts with objective (a) of the standard. Put simply, the design has followed the topography of the site and as a result has breached the height control.

Clause 4.6(3)(b) -sufficient environmental planning grounds to justify contravening the development standard

The written request states that the proposed development allows for the promotion and co-ordination of the orderly and economic use and development of the land in the following ways: "• The site is the last remaining undeveloped parcel of land in the immediate vicinity. The development of the site will not set any precedent for future development in the immediate locality. The proposed development meets the objectives of the R4 High density residential zone without providing unreasonable impact on adjoining sites that have already been developed for high density residential pursuits. • In the spirit of the previous statement, it is also realised that the proposed development is constrained by the existing built form from surrounding it. The proposed development has therefore evolved from a design exercise that has analysed the surrounding sites and provided an outcome that reflects a consistent built form outcome, that does not unreasonably impact on the adjoining sites developed for high density residential development - particularly with respect to solar access and visual and privacy impacts. • The proposed development has related to the adjoining developments by providing a consistent streetscape. This has included a four storey built form fronting Gordon Crescent with additional storeys setback. The overall height of the portion of the proposed development fronting Gordon Crescent is lower than the adjoining development to the west (76-82 Gordon Crescent). Furthermore, top of the proposed development fronting Gordon Crescent is of a height that is between the two adjoining developments. ○ 76-82 Gordon Crescent - RL61.11 ○ Subject Site - RL60.80 to RL 61.1 ○ 92-96 Gordon Crescent - RL64.12 • An objective of the height of building standard is to "relate development to topography". The proposed development is located on a steeply sloping site, as outlined above and can be seen in Figure 2. As a result, the proposed development is not uniform, and provides modulation coming down the slope, which includes reallocation of height. • Although this reallocation of height results in a contravention of the standard, a fully compliant scheme which fulfils the development potential of the R4 zoned land would result in significantly greater visual, overshadowing and privacy impacts compared to the proposed development. The proposed development responds to the topography of the site by reallocating the height in a way that reduces all of these impacts, while still realising the development potential expected of the site given its R4 zoning. Therefore the proposed development better allows for the promotion and co-ordination of the orderly and economic use and development of land than a compliant scheme would. • The increased height will not significantly or unreasonably impact upon the amenity of adjoining neighbours in relation to privacy, overshadowing or view loss which again reflects the orderly and economic use and development of the land. The proposed scheme provides a better outcome than otherwise afforded by a scheme that strictly complied with the height and setback controls. The proposed scheme has specifically removed building bulk from the eastern boundary to ensure the amount of solar access to the building to the south east exceeds the requirements of the ADG and is therefore considered to be reasonable, in accordance with height Objective (a). The proposed design has demonstrated that despite the additional height, the development will provide a better outcome in terms of solar access - particularly to adjoining buildings - than a complying development would. Considering the proposed design has addressed all of the site specific constraints, reducing the number of apartments on the site purely to achieve technical compliance with a numerical height control would be a poor planning outcome and an inefficient use of high density residential land. For the above reasons, strict compliance with the height control would hinder the attainment of the objects of the Act, the height standard and the R4 zone (see further discussion below), and would not result in the orderly and economic use and development of land. Accordingly, it is considered that there are adequate environmental planning grounds to justify the contravention."

Clause 4.6(4)(a)(ii)

Clause 4.6(4)(a)(ii) requires that the development is 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.
The zone objectives are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
Having sought to justify that the development is consistent with the objectives of the standard when dealing with subcl (3)(a), the applicant repeats those submissions for the purposes of subcl (4)(a)(ii), and then explains why the development is in the public interest because it is consistent with the objectives of the R4 High density residential zone. The request addresses each zone objective in the following terms; "• To provide for the housing needs of the community within a high density residential environment. The proposal reflects the redevelopment of four (4) individual residential allotments that currently contain one detached residential dwelling each, into a high density residential flat building. This fundamentally aligns with the objective of the R4 zone, where as the current developments on the sites do not. • To provide a variety of housing types within a high density residential environment. The proposal provides 1, 2 and 3 bedroom dwelling units to meet the diverse housing needs of the community. There is also a good mix of units with 13 x 3-bed (18.8%), 33 x 2-bed (47.8%) and 23 x 1-bed (33.3%). With 20% of units as adaptable units and 65% of units with more than 1 bedroom, the development provides a good variety of housing types within a high density residential environment. •To enable other land uses that provide facilities or services to meet the day to day needs of residents. Not applicable. • To provide for a high concentration of housing with good access to transport services and facilities. The proposal is located close to major bus routes, which provide services to Macquarie Park, Chatswood, Sydney Olympic Park and Sydney CBD. • To ensure that the existing amenity of residences in the neighbourhood is respected. The proposal has provided setbacks and massing that complies with the Apartment Design Guide requirements to ensure that there is no unreasonable loss of view or solar access to surrounding development. The height exceedance does not decrease the amenity of residences. • To avoid the isolation of sites resulting from site amalgamation. The proposal amalgamates four residential properties to form a larger consolidated site. The proposal activity avoids lot isolation by amalgamating the last remaining single-dwelling lots in the R4 precinct. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment. The proposal includes significant communal open space (38.7% of the site, 13.7% more than required) and deep soil area (27.4% of the site, 20.4% more than required), which is accompanied by landscape plans demonstrating that landscaping will be a major element of the future residential environment of the site. Communal open space is provided in a number of locations in the development - at ground and rooftop. Most of these areas achieved a minimum 50% solar access, utilise deep soil zones, and provide a variety of safe passive recreational opportunities. The design substantially exceeds the required front setback with associated landscaping. The proposal will require the loss of a number of trees, which is a reality associated with high-density design development. However, existing trees have been retained where possible, and the site's landscaping will be maintained through a more than 1-for-1 replacement planting strategy that utilises a diverse range of tree species."
Because the development is said to be consistent with the objectives of the development standard and the R4 High density residential zone in which the development is proposed to be built the written request concludes that the development is in the public interest.

Consideration of the cl 4.6 written request / findings

Having read the applicant's cl 4.6 written request made by MECONE dated 22 March 2019 (Exhibit J), it is apparent that it has been prepared having regard to criteria required by cl 4.6 of the LEP 2009 and the relevant case law: Initial Action and Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7; Wehbe.
Clause 4.6, so far as is relevant, provides: (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
The operation of the clause is explained in the decision of Initial Action, by Preston CJ at [12]-[27]. Although the provision is facultative, the permissive power in cl 4.6(2) to grant development consent is subject to conditions. Furthermore, it is the applicant who bears the onus of demonstrating that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the Court on appeal to form the requisite opinion of satisfaction to enliven jurisdiction in cl 4.6(4)(i): Wehbe at [38].
That said, cl 4.6(4)(ii) sets out another precondition that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard. The second opinion of satisfaction however is different to the first in that it requires the Court to be satisfied that the development will be in the public interest because it is consistent with the objectives of the particular standard and the zone in which the development is proposed.

Findings in respect of the cl 4.6 written request

Having considered the written request as required by cl 4.6(4)(a)(i), I am satisfied that it has adequately addressed the matters required to be demonstrated by subcl (3)(a) and (b). (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.
As discussed by the Court in Initial Action at [15] these matters are twofold.
With respect to subcl (3) (a) the applicant's written request relies on the first test outlined in Wehbe at [42]-[51] to demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case cl 4.6(3)(a) (Wehbe test 1). Additionally, the written request states that the objectives of the development standard in cl 4.3 will not be thwarted by the contravention of the standard. Whereas, strict compliance with the development standard would thwart objectives (a), (c) and (d) (Wehbe test 3).
The adjectival phrase "environmental planning" in subcl (3)(b) is not defined, however the Court has held that it refers to grounds that relate to the subject matter, scope and purpose of the EPA Act , including the objects in s 1.3 of the EPA Act: Initial Action at [23]. In determining whether I am satisfied that the environmental planning grounds are sufficient the Court has held that there are two aspects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravention the development standard": Initial [24]. With the focus being on the aspect of the development that contravenes the standard and why that contravention is justified on environmental planning grounds: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 (Four2Five) at [26]. That is, the environmental planning grounds advanced in the written request must justify the contravention of the standard and not simply promote the development as a whole: Four2Five at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matters.
With respect to subcl (3)(b) the written request has sought to justify the additional height (the contravention of the standard) on the basis that the development promotes the objects of the EPA Act in particular s 1.3(c) and (g) -the orderly and economic use and development of land, and good design and amenity of the built environment. The environment planning grounds relied upon in the request are reproduced at [35] above. For example, the written request states that the development potential of the site is constrained by the existing built form around it and its steep topography. Nonetheless, the non-compliant development will create a consistent scale with neighbouring development. It meets the objectives of the R4 high density zone without generating unreasonable impacts on adjoining sites and provides for a consistent streetscape even though the overall height of the portion of the proposed development fronting Gordon Crescent is lower than the adjoining development to the west and setback further than the adjoining development on both sides.
After careful consideration of the written request I am satisfied that the environmental planning grounds I have identified earlier are sufficient to justify the contravention of the height standard and in that regard the written request has adequately addressed them. Despite the contravention of the standard in the context of the topographical constraints of the site and the surrounding built form the proposal achieves a good design and the orderly and economic development of 4 remaining lots in the street available high density development. As the Court has made clear in Initial Action, cl 4.6(4)(a)(i) does not invite an inquiry as to whether the proposal achieves a better environmental outcome than a complaint development but rather whether the written request has adequately addressed the sufficient environmental planning grounds to justify the contravention of the development standard.
For the reasons outlined I am satisfied as required under cl 4.6(4)(a)(i) that I have jurisdiction to deal with the appeal.
I will now address the second opinion of satisfaction, in cl 4.6(4)(a)(ii) as to whether the development will be in the public interest because it is consistent with the objectives of the standard and the objectives of the zone in which the development is proposed. This second opinion of satisfaction under cl 4.6(4)(a)(ii) requires that I am directly satisfied about these matters.
After a consideration of the applicant's written request in answer to subcl (3)(a) as summarised earlier at [23]-[2], and the experts' assessment and my observations at the site view I am satisfied that the development is consistent with all relevant objectives of the standard.
That is the evidence is that the development will relate to the topography of the site which I have observed consistent with objective (d). In that regard, I appreciate that the applicant has taken up alternative design solutions flowing from the expert's joint conferencing to ensure that the location of the maximum breach of the height control is where the fall of the site is at its steepest in order to maximise the potential sunlight for the public domain consistent with objective (c). Additionally, despite the breach of the standard I accept that the amended design also provides for reasonable solar access to existing buildings and public areas consistent with objective (a). I am also satisfied on the evidence that the development has been designed to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable and thereby consistent with objective (b) of the standard.
With respect to the development's consistency with the zone objectives, I am satisfied that the development is consistent with all relevant objectives. (Noting that I agree with the applicant that the zone objective "to enable other land uses that provide facilities or services to meet the day to day needs of residents" is not called up by this applicant). In forming the requisite state of satisfaction I have had regard to the applicant's written request in respect of consistency with the relevant zone objectives as summarised, the experts' agreement that this is the case and my observations at the site view.
There can be no dispute that the development does provide for the housing needs of the community within a high density residential development. It does this by offering a mix of 69 residential apartments with the required amount of parking according to the Council's controls which is consistent with the first objective of the zone. It also complies with the stated objective to provide for a high concentration of housing with good access to transport services and facilities. In this case the development is proximate to major bus routes and services to major shopping and business locations. Additionally, the expert evidence is that the amended design offers vastly improved residential amenity for the adjoining residences through a separation of the building form, increased setbacks, extensive landscaping with reinstated trees, increased solar access and less overshadowing. These features of the design in my opinion ensure that the existing amenity of residences in the neighbourhood is respected which is also a stated objective of the zone.
The applicant has proposed a comprehensive landscaping plan for the site which is supported by conditions that will ensure its maintenance into the future. It includes extensive planting within increased setbacks at the street frontage, the side and rear boundaries and deep soil areas for replacement trees including turpentine where possible. Furthermore, the landscape experts agree that the landscaping proposal now complies with the DCP's controls for deep soil planting and landscape area.
The fact that the development requires the removal of significant trees and the existing landscaping in order to accommodate the high-density development anticipated by the zoning does not preclude me from being satisfied that the development is consistent with the zone objective given the replacement planting proposed. Therefore, I am satisfied that the development "ensures that landscaping is maintained and enhanced as a major element in the residential environment" consistent with the zone objective.
Because of the development is consistent with the objectives of the zone and the height standard I am satisfied as required by cl 4.6(4)(a)(ii) that the development is in the public interest.
Lastly, I must also be satisfied that the precondition in cl 4.6(4)(b) requiring concurrence of the Secretary is appropriately addressed. In this case, that concurrence has not been provided; however, on appeal I can exercise the power to grant consent for development that contravenes the development standard under cl 4.6(2) without the concurrence of the Secretary by reason of s 39(6) of the Land and Environment Court Act 1979. I have decided to do so in this case.

Clause 4.6 written request - approved

For the reasons outlined I am satisfied that a contravention of the development standard in cl 4.3 is justified and therefore can be varied under cl 4.6(2) of the LEP 2009 in this case. The written request is approved.

Merits assessment under s 4.15 of the EPA Act

Mr Dickson, the applicant's urban design expert explained in Court the detail of the amended Proposal by reference to the plans and the agreed conditions of consent. At that time he confirmed that the experts are content that all of the contentions raised by the Council had now been satisfactorily resolved. And, in respect to the objector submissions Mr Dickson said that the experts agree that the proposed changes address the concerns raised by the residents, in particular the concerns that: 1. The proposed development represents an overdevelopment of the site as it exceeds the height and floor space controls, as well as setback provisions. 2. The proposed development will increase traffic impacts and cause further congestion. 3. The adjoining developments should not be treated as a precedent for an appropriate scale of development. 4. The proposed development creates unacceptable levels of excavation, as well as loss of trees and deep soil.
With regard to the above, Mr Dickson explained that the development has been amended to comply with the FSR control and this has reduced the height variation so that it is considered acceptable from as environmental planning perspective. The amended cl 4.6 variation request provides an overview of why the proposed height variation is considered acceptable by the experts. The number of car parking spaces has been reduced to 116 to align with the Council parking controls. This reduction in car parking spaces will also result in reduced excavation of the site which will assist deep soil retention. The proposed development is considered to be contextually appropriate and broadly consistent with the existing controls as they apply to the site.
In relation to the objectors' concerns about construction noise during the construction of the development Mr Dickson said that this had been addressed by the agreed conditions of consent, which include the regulation of construction work times and activities at the site. And, with respect to the Associations' concern about negative impacts upon the public reserve opposite the site and the creek he explained that these matters had been investigated by the ecologists and found to be of no concern - ecological evidence and the RMS endorse a conditional approval of the DA.
In deciding to approve of the development I have given significant weight to the fact that all of the experts agree that the amended development meets all relevant planning controls (apart from height) and provides good design which achieves the objectives of the zone, the objectives of the height standard and the objects of the EPA Act. With respect to the breach of the height control, I am conscious that the breach now been isolated to a maximum breach of 2390 mm at the parapet (as evidenced on the height plan diagram (Exhibit G)) together with some other more minor breaches at the lift overrun and at the top of the roof. Moreover, the portions of the building that are located above the height limit have generally been located at the centre of the site and the non- compliances are setback from side boundaries so as to ensure compliance with the visual privacy objectives and design criteria of Section 3F of the AGD. As the proposal includes setbacks that comply with the AGD it can be determined that the proposal provides a suitable level of privacy to adjoining development - and based on all the expert evidence that is my considered opinion in this case.
As required a SEPP 65 Design Verification Statement has been provided addressing the nine design quality principles (Schedule 1) of the SEPP which commenced on 17 July 2015; and the objectives and design criteria of Part 3 and 4 of the AGD (Exhibit H). The statement concludes that the design before the Court generally complies with the SEPP 65 and the AGD design principles particularly the need for new development to integrate into the existing/desired future character of the area and streetscape, to create good residential amenity and safety for residents and to promote density in an area where it can be supported. Independent of that the experts have also assessed that the amendments ensure that the AGD requirements for compliant communal open space, landscaped area and deep soil planting are achieved along with appropriate amenity for the residents of the complex and the neighbours in terms of solar access and ventilation (DA813 in Exhibit A).
The RMS has also provided general terms of agreement approving this integrated development on this bushfire mapped land which sits opposite the forest on Batten Reserve. The RMS's GTAs have been incorporated in the agreed conditions along with the requirements of the Water NSW. Accordingly, there can be no basis to refuse consent to this development because of bushfire safety or ground water issues.
The evidence supports a conclusion that the design has included careful consideration of the amenity of the adjoining development, and the public domain. In particular, the development has reduced the bulk and scale of the development from the eastern portion of the site beyond the minimum setbacks - primarily undertaken to ensure the existing high density development to the south east continues to achieve a reasonable level of solar access complaint with the requirements outlined in the SEPP 65 and the AGD.
The aerial photos of the site and its environs in Exhibit E demonstrate that over time this area has undergone significant redevelopment to accommodate high rise apartments reflective of the zoning. This has necessitated the loss of significant vegetation and tree on all adjoining sites. Although this is unfortunate it has proved necessary to accommodate the density invited by the R4 zoning. Fortunately, in this case, the ecologists and planners are satisfied that the proposed planting in the proposed deep soil pockets with replacement trees and landscaping will assist address the loss of vegetation required to accommodate the proposed development and ultimately provide for appropriate and acceptable landscape amenity for the residents and the community.
Accordingly, the Court orders: 1. The applicant's cl 4.6 written request to vary the development standard for height in cl 4.3 of the Lane Cove Local Environmental Plan 2009 is approved. 2. The appeal is upheld. 3. Development consent is granted to DA 151/2017 for lot consolidation, demolition of existing structures and construction of a residential flat building containing 69 residential apartments and associated works and landscaping on land at 84 - 90 Gordon Crescent, Lane Cove North, subject to the conditions in Annexure A. 4. The exhibits returned apart from Exhibits 10, A and J.

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: 09 April 2019

(2007) 156 LGERA 446

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