Truland Development Pty Ltd v Georges River Council

Site and Locality

1. The subject site includes the properties 188 (also known as 186 - 188) and 190 Princes Highway, Beverley Park, and 2, 4 and 6 Lacey Street, Kogarah Bay. The legal description of the relevant lots is: Lots 5, 6 and 7 in DP 17522, and Lots 8, 9, 10 and 24 in DP 17618. The total site area is 3,078m². The subject site is identified outlined in red in the extracted aerial photograph: (Exhibit D)
2. The subject site has a fall of approx. 2-3m from the Princes Highway to Wyuna Street. The site has a cross fall of 1m from Lacey Street to the common boundary of the subject site with 184 Princes Highway.
3. The property known variously as 'McWilliam House' or 'Sunnyside' is located at 118 Princes Highway, Beverley Park. It is a two-storey sandstone dwelling with a wrap-around balcony. The property is listed as a local heritage item in the Kogarah Local Environmental Planning Policy 2012 (LEP 2012). The listing incorporates both the house and garden.
4. The surrounding and adjoining sites are characterised by predominately single-storey residential housing, with one and two-storey commercial on the opposing side of the Princes Highway.
5. However, it is agreed between the parties that the site is located in an area that is in transition, in part as a result of updated planning controls that came into effect on 26 May 2017.

Recently Approved development in proximity to the site

1. The following aerial plan was prepared by the Applicant to demonstrate the approved, or proposed, development applications within the locality of the subject site (shaded in red).
2. The Application (DA 2020/0144), nominated at 6 in the above, has not as yet been determined by Council. The remaining development applications have been determined and have current consents. These applications, their built form and architectural presentation, are relevant in the proceedings in determining the compatibility of the proposed development with the future character of the precinct.

Public Notification

1. The development application was notified to neighbours in accordance with the Kogarah Development Control Plan 2013 (DCP 2013). Fourteen submissions were received by Council. These submissions raise the following concerns:

• That the proposed development will generate noise and inconvenience from construction traffic.
• That the proposed development is non-compliant with the maximum height development standard.
• The development is out of character with the existing locality and existing smaller scale development adjoining the subject site.
• The development will create overshadowing to properties to the south of the subject site.
• That this development, and others in the locality, will increase traffic in the locality and put pressure on the local roads and will adversely impact on street parking.
• That the proposed development is located too close to the retained heritage house.
• The rooftop communal open space will create opportunities for overlooking of adjoining properties.
• The local services are inadequate to support the proposal.
• The bulk, scale and design of the development will dominate the lower scale developments along Wyuna Street.
• View lines to the heritage item, 'McWilliam House', will be obscured. Further, the heritage significance of the item will be diminished by the proposed development.
• That the proposed development should be deferred until the locality specific DCP is prepared.

1. At the commencement of the hearing, two residents addressed the Court. Their concerns can be summarised as:

• That the development will be overbearing to the heritage item and will impact on its heritage values.
• The development impinges on the curtilage of the item.
• That the increased height and intensity of development proposed by the development, and in the surrounding area, are not supported by residents in the locality.
• This development, at seven storeys' high, in conjunction with the approved shop top housing on the opposite side of the Princes Highway will create a 'tunnel' of development on the highway.
• That the development is not required to facilitate the retention of the heritage item and will have a detrimental impact on the significance of the heritage item. The Court's reasoning in George v City of Parramatta Council [2017] NSWLEC 1366 should be applied in the current proceedings.
• The development inappropriately relies on the conservation incentives at cl 5.10(10) of LEP 2012. An independent heritage architect should be appointed to determine the heritage value of components and fabric of the existing building as well as the impact of the proposed works.
• That the proposed development involves excavation, installation of piers, and installation of a stormwater tank in very close proximity to the existing heritage fabric. The risk of these works is uncertain but has the potential to cause cosmetic and/ or structural damage to the existing sandstone walls.
• The proposed development will detrimentally impact on the landmark quality of the heritage item, which is key to its significance.

Planning Controls

1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies. An updated BASIX certificate has been filed for the amended plans.
2. State Environmental Planning Policy (Infrastructure) 2007 applies to the subject site as it fronts the Princes Highway (a classified road). Clause 102 is satisfied as vehicular access for the new development is provided from Wyuna Street. The existing access to the heritage item from the Princes Highway is maintained. Further, an acoustic report has been prepared by the Applicant which concludes that, subject to the implementation of the report's recommendations, the residential apartments will comply with the Department of Planning publication 'Development Near Rail Corridors & Busy Roads- Interim Guideline 2008'.
3. A Phase 1 preliminary site contamination report has been prepared for the subject site. The report concludes that the risk to human health and the environment associated with soil and ground water is low. I am satisfied that cl 7 (1) of State Environmental Planning Policy No 55 - Remediation of Land is met.
4. In accordance with the requirements of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65) and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement has been provided.
5. Pursuant to s 29 (2) of SEPP 65 the consent authority is required to take into consideration: (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development (as modified) when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide (ADG).
6. The Respondent argues that the following design quality principles are relevant to the assessment of the development application: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Principle 3: Density Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context. Appropriate densities are consistent with the area's existing or projected population. Appropriate densities can be sustained by existing or proposed infrastructure, public transport, access to jobs, community facilities and the environment. … Principle 5: Landscape Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. Good landscape design enhances the development's environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks. Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours' amenity and provides for practical establishment and long term management. Principle 6: Amenity Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being. Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility. …
7. Clause 30(1) of SEPP 65 states that a development application cannot be refused for reasons relating to ceiling heights, parking and internal apartment if the prescribed criteria are met. The development satisfies these criteria.
8. Clause 30(2) of the SEPP 65 requires that a consent authority, or the Court on appeal, must not grant consent unless adequate regard is demonstrated in the development to design quality principles and the objectives of the ADG.
9. The Respondent argues that the Applicant has failed to meet the following sections of the ADG:

• Part 3A: Site Analysis, in particular Objective 3A-1 which states: "Site analysis illustrates that design decisions have been based on opportunities and constraints of the site conditions and their relationship to the surrounding context".
• Part 3E: Deep soil zones, in particular Objectives 3E-1: Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality' and the design crieria for the provision of 7% of site area with a minimum dimension of 6m.
• Part 4E-1: Private open space and balconies, in particular the design criteria that "apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony. It must have a minimum area of 15m² and a minimum depth of 3m".
• Part 4L: Ground floor apartments in particular Objective 4L-1: "Street frontage activity is maximised where ground floor apartments are located", Objective 4L-2: "Design of ground floor apartments delivers amenity and safety for residents". The design guidance states: "Direct street access should be provided to ground floor apartments; Privacy and safety should be provided without obstructing casual surveillance. … Design solutions may include: • elevation of private gardens and terraces above the street level by 1-1.5m. …"

1. The heritage experts reference Article 8 of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 (the Burra Charter): "Conservation requires the retention of an appropriate setting. This includes retention of the visual and sensory setting, as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate."
2. The Kogarah Local Environmental Plan 2012 (LEP 2012) applies to the subject site and zones the land R3 Medium Density. Residential flat buildings are permissible with consent in the zone. The objectives of the R3 zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. The height of buildings development standard for the subject site is 21m (cl 4.3 of LEP 2012). The proposed development exceeds the maximum height standard and relies on variation request pursuant to cl 4.6 of LEP 2012.
4. The floor space ratio (FSR) for the subject site is 2:1. The proposed development is compliant with this standard.
5. Clause 5.10(2)(a) of LEP 2012 is in the following terms: (2) Requirement for consent: Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area
6. Clause 5.10(4) of LEP 2012 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the item concerned, before granting consent in respect of a heritage item.
7. As the development includes ancillary earth works, pursuant to cl 6.2(3) before granting consent to the development application the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Expert evidence

1. Individual expert reports for acoustic (Mr Desmond Raymond) and traffic engineering (Mr Robert Varga) were tendered for the Applicant as Exhibit N and Exhibit O respectively. I have read and considered these expert reports in the determination of the development application.
2. The Court was assisted by town planning experts, Mr Benjamin Black for the Applicant and Ms Heather Warton for the Respondent. Their joint town planning report was tendered as Exhibit 4 in the proceedings. In addition to their joint report the planning experts were called for cross examination.
3. The Court was assisted by urban design experts, Mr Alan Cadogan for the Applicant and Mr Peter Smith for the Respondent. Their joint town urban design report was tendered as Exhibit 3 in the proceedings. In addition to their joint report the urban design experts were called for cross examination.
4. The Court was assisted by heritage experts, Mr Stephen Davies for the Applicant and Mr Paul Davies for the Respondent. The conference also included Mr Aaron Lakeman, Landscape Architect, for the Applicant. Their joint report was tendered as Exhibit 2 in the proceedings. In addition to their joint report these experts were called for cross examination.

Assessment of the height variation request pursuant to cl 4.6 of LEP 2012:

1. Prior to considering the merits of the development application it is necessary to determine whether the Applicant's requested variation to the maximum height standard in LEP 2012 (the written request) is satisfactory. The Court's satisfaction pursuant to cl 4.6 of LEP 2012 is a precondition to consent.
2. Clause 4.6 of LEP 2012 contains the relevant precondition to consent at subcll (3) and (4) as follows: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained.
3. It is clear from a reading of cl 4.6 of LEP 2012 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the height standard by demonstrating that the breach of the development standard is justified.
4. In Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7, Preston CJ outlines that Commissioners in exercising the functions of the consent authority on appeal have power to grant consent to developments that contravene the building height standard (cl 4.6(2)). However, the consent authority cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. have considered 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)).
5. I have applied these tests to the current application in the following.

What is the extent of the variation?

1. The planning experts make the following agreed comments as to the extent of the variation to the height standard: "The Experts agree that the variation to the maximum height control under cl 4.3 of Kogarah LEP 2012 (KLEP) is as follows: - in the eastern wing of the building (Building B) the lift overrun is at RL44.35m, this is a height of is (sic) 24.89m, based on ground level (existing) (GLE) from the survey being 198.46m. This is 3.89m over the 21m height limit. The Drawing 21m Height Plane Diagram DA510 Rev F shows this part of the building is 3.94m over the 21m plane, however, the experts have reviewed the levels on the plan and agree that the maximum exceedance is 3.89m. - the roof is RL40.15, is the lowest GLE is approximately 18.94m, the height is 21.21m. This is 0.21m over the height limit. - in the western wing (Building A), the height of the lift overrun is RL42.80m, being a maximum building height of 22.3m taking GLE from the survey as estimated RL20.5m (the lift overrun is positioned in the location of the existing metal double garage located at the rear of No. 190 Princes Highway). This is 1.3m over the height limit. - the height of the roof in Building A is RL41.65m, GLE is RL 19.72m, the height is 21.93m. This is 0.93m over the height limit. - the screen structure for rooftop services also exceeds the height limit, this is at RL43.25m (indicated in Section), it is a maximum of approximately 23.15m (assumed GLE of 20.1m), being a height exceedance of 2.15m." [original emphasis] (Exhibit 4)
2. This analysis is accepted by the parties and the maximum exceedance of 3.89m is adopted by the written request (Exhibit M).

Is the proposed development consistent with the objectives of the zone?

1. The subject site is zoned R3 Medium Density Residential. The objectives of the zone R3 Medium Density Residential are as follows: - To provide for the housing needs of the community within a medium density residential environment. - To provide a variety of housing types within a medium density residential environment, - To enable other land uses that provide facilities or services to meet the day to day needs of residents
2. The written variation request prepared by the Applicant (Exhibit M) argues that the proposed development is consistent with the objectives of the zone on the following grounds: "The proposed height non-compliance does not impact upon the achievement of the zone objectives. The proposed development will provide increased housing supply for the community within a medium density residential environment. The proposal also provides a variety of housing types ranging from one bedroom apartments to four bedroom terraces, within a large variety of configurations. The height variation does not contravene any objectives of the zone, and for that reason the proposed variation is acceptable." (Exhibit M)
3. The reference in the written request to 'four bedroom terraces' appears to be a reference to an earlier scheme for the development of the site. The proposal before the Court does not contain any terrace form accommodation.
4. However, in considering the question of consistency in relation to the zone objectives, I have utilised to the guiding principle defined in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21, at [21] as follows: "the guiding principle then is that 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 is compatible."
5. I note that, whilst it is a matter which the consent authority must be satisfied (cl 4.6(a)(ii) of LEP 2012), it is the agreed evidence of the planning experts that the development will provide for the housing needs of the community and will provide a variety of housing types. Further, they agree that the height non-compliance does not impact on the achievement of the zone objectives (Exhibit 4).
6. On the basis of the arguments put in the written request, I am satisfied that the proposed development is generally consistent with stated objectives of the R3 Medium Density Residential zone and cl 4.6(4)(a)(ii) of LEP 2012 is met.

Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

1. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe).
2. Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
3. In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).
4. The written request argues that compliance with the maximum height standard is unreasonable or unnecessary for three independent reasons. These reasons can be summarised as:

• The first reason is that the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);
• The second reason is that an underlying objective of the height control would be defeated, thwarted or undermined if compliance was required. The written request references Linfield Developments Pty Ltd v Cumberland Council [2019] NSWLEC 131 at [24] which states: "It is the recent approvals of the two developments under construction to the east of the Site to which the Applicant points as demonstrating the desired future character and, although said to a lesser degree, the abandonment of the controls in this part of Double Bay." The request argues that the third objective of the height standard, namely: "to provide appropriate scale and intensity of development through height controls" would be defeated if compliance was required.
• The third reason advanced is that compliance is unreasonable or unnecessary "because the burden placed on the community by not permitting the variation (and allowing for the redistribution of building mass to provide a respectful relationship with the heritage item) would be disproportionate to the adverse consequences attributable to the proposed non-compliant development". The written request, relying on Botany Bay City Council v Saab (2011) 82 NSWLR 171; [2011] NSWCA 308 ('Botany Bay v Saab') at [15], argues that this disproportion is itself sufficient to establish unreasonableness. The passage of the judgment (which concerned the reasonableness of conditions of development consent) relied on by the Applicant is as follows: "Thirdly, an exercise of discretionary power may be capable of challenge as manifestly unreasonable, in the Wednesbury sense. However, that assessment will usually involve a comparison of the condition imposed with the scope and operation of the power being exercised. In circumstances where the condition must, for the purposes of the first test, be reasonably related to the purposes for which the power may be exercised, the practical significance of this test may be limited to cases where the severity of the burden placed on the applicant is disproportionate to the consequences attributable to the proposed development. Thus, whereas it may be reasonable to impose on a developer of a significant subdivision an obligation to contribute to the cost of upgrading a dirt road to a sealed road, it may not be reasonable and appropriate to include the expense of expanding the road from two lanes to four: see Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 at 388 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ agreeing) in relation to a legitimate upgrading condition. Even where the expense sought to be recovered is thus disproportionate to the costs of a reasonable level of upgrading, there would, in all likelihood, be an available challenge on the basis of an improper purpose, under the first or second principles set out above."

1. In their joint report the planning experts note they do not agree with the discussion and conclusions of the written request in relation to the second reason advanced. I accept and adopt this agreement. I am also not satisfied that the written request explains or establishes that compliance with the maximum height standard is unreasonable or unnecessary on the basis that an underlying objective of the height control would be defeated, thwarted or undermined if compliance was required.
2. In my view the third reason advanced in the written request suffers from the flaw identified by Moore J in Rebel MH Neutral Bay Pty Ltd v North Sydney Council 241 LGERA 107; [2018] NSWLEC 191 at [51]-[53] and [60], that is it asserts an entitlement to development and argues that the height variation only arises from a need to 'redistribute' this entitlement due to the constraint of the heritage item. As noted by His Honour at [25]: "Consideration of the extent to which development will be permitted within such a maximum building envelope is tempered by other considerations arising from matters such as the objectives of the zone; any issues arising out of specific provisions in the LEP relating to, for example, heritage matters; and the fine-grained controls set out in the DCP. There is no entitlement to achieve the maximum development potentially able to be approved having regard to the development standards in the LEP."
3. The cited extract of Botany Bay v Saab does not, in my view, assist in establishing the third ground advanced by the written request.
4. I am not persuaded that third reason advanced in the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this proposed development.
5. Examining the first basis put by the written request, the objectives of the height standard at cl. 4.3 LEP 202 are: (a) to establish the maximum height for buildings, (b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas, (c) to provide appropriate scale and intensity of development through height controls.
6. The written request argues the objectives of the standard are met in the following broad ways:

• The height of the development is in line with the type of development envisaged for the site.
• The exceedance is minor. Further, the exceedance should be considered in the context that the extent of gross floor area provided in the proposed development, is 949m² less than the maximum permissible.
• The massing of the proposed development is such that the proposed building envelope only generates a minor increase in shadow impacts that will have a negligible impact on neighbouring amenity as the shadows fall on roof. Further, due to the setback of the proposed development from the Princes Highway, the proposed building envelope has a reduced shadowing impact than a compliant development on properties in Lacey Street.
• That the visual impact of the proposed development, in comparison to a compliant scheme, is 'virtually imperceptible' due to the setback provided from the third storey onwards at the Wyuna Street frontage and the Princes Highway. That the visual impact of the scheme is reduced at the sensitive interfaces between the heritage item and the adjoining R2: Low Density Residential interface. Note: this section of the written request was prepared prior to the grant of leave for amended plans and does not accord with the current building envelope.
• That the height breach does not result in additional privacy impacts.
• That the non-compliance of the height 'does not offend the objective of providing an appropriate scale and intensity of development'. The written request notes that the proposed development provides a reduced FSR of 1.69:1, demonstrating that it falls within the intensity of development expected for the site. Specifically, the request argues that: "The amended built form, bulk and scale is appropriate for the site and the proposed non-compliance with height will not be perceptible in the streetscape and character of the locality. In particular, the amended proposal has been redesigned to give a high level of respect to the heritage item and refrains from utilising a significant part of the site for apartment floor space. The scale of the building (5 to 7 storeys) is consistent with what is generally accepted within a 21m height limit." (Exhibit M)

Consideration

1. In determining whether the objectives of the standard achieved notwithstanding the non-compliance, and therefore compliance with the height standard is unreasonable or unnecessary, I am satisfied that consistency means: 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
2. I accept the arguments advanced by the written request seeking to establish that the objectives (a) through (c) of the standard are met notwithstanding the variation. I am satisfied that the proposed development is concordant with the objective of the height standard to establish a maximum height for buildings. This objective is satisfied notwithstanding the variation proposed. I am satisfied that the written request adequately demonstrates that the proposed development is compatible with the objective of providing an appropriate scale and intensity of development through height controls.
3. In relation to objective (b) I note that the approach required by the test in cl 4.6 of LEP 2012 is not a comparison between the merits of a complying scheme and the proposed scheme to determine if the development achieves the objectives of the standard: Initial Action at [90].
4. However, I accept on the analysis provided in the written request that the proposed variation is consistent with achieving the objective of minimising impact arising from overshadowing and loss of privacy on adjoining properties. In particular I accept that the setback of the proposed development from the Princes Highway minimises the overshadowing impact to properties in Lacey Street and the setback of the roof top communal open space minimises the potential overlooking to adjoining development.
5. In relation to the visual impact of the proposed variation I accept that the overall height is compatible with the intensity and height of development both proposed by the development controls and demonstrated by current development approvals: SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112. Visual impact is not visibility. Given the transition of built form occurring as a result of the 'up zoning' of the precinct I accept that the future character is the most relevant to the assessment. In the context of the approved developments noted at paragraph [10] I accept that the proposed development would not be out of conformity, distinguishable or jarring: Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80 [2005] NSWLEC 191 at 22-31.
6. For the subject site there are arguably two specific interfaces that are relevant to determining compatibility with objective (b) in relation to 'minimising the impact of visual impact'. They are firstly the interface with the heritage item secondly and the interface with the adjoining low-density zone.
7. However, in relation to the minimisation, or otherwise, of visual impact I am satisfied that the relevant visual impact is that on the adjoining properties. Any interpretation of the meaning of objective (b) of the height standard in LEP 2012 must start by examining the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47].
8. By reference to the Macquarie Dictionary meaning of adjoin, extracted below, the objective is, in my view, not directed to any visual impact arising within or internal to the subject site but to sites that abut or are next to the subject site. "Adjoin 1. To be in connection or contact with; abut on: her house adjoins the lake -v.i. 2. To lie or be next, or in contact with the two houses adjoin." Macquarie Dictionary Eighth Edition

Interface with the adjoining low-density zone

1. The subject site adjoins land zoned R2 Low Density Residential at its southern boundary, Wyuna Street. The appropriateness of the bulk and scale of the development at this interface was considered by the urban design experts in their joint report. In their report they consider this contention, along with a number of others, under the heading of 'Built form'. They note their agreement 'That the bulk of any development on the site should be concentrated towards the Wyuna Street side of the development' (Exhibit 3). In their evidence they raise no objection to the visual impact of the proposed development on the adjoining low-density development in Wyuna Street.
2. In their oral evidence both experts noted that the amendments made by the Applicant, specifically the introduction of a four storey 'base' along the Wyuna Road frontage was an improvement in the streetscape presentation of the proposed development.

Findings

1. On the basis of the preceding I accept the argument in the written request that there is not a detrimental visual impact that arises from the proposed development on adjoining properties or open space areas. I am satisfied that objective (b) of the height standard is achieved notwithstanding the non-compliance with the control.
2. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012.

Are there sufficient environmental planning grounds to justify the variation?

1. In Initial Action at [24] Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, that the environment planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justifications is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development 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 matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
2. Mr Cole, for the Respondent, submits that the written request is inadequate, in part on the basis it does not establish sufficient environmental planning grounds. Further, he submits that the Court should prefer the evidence of Ms Warton that the grounds advanced in the written request are not environmental planning grounds.
3. The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the height development standard. These grounds can be summarised as follows: 1. That the slope of the land exacerbates the height non-compliance. 2. That the proposed development successfully retains and integrates the heritage item, whilst opening up a new view to the heritage item from Princes Highway and for pedestrians in proximity to the subject site. 3. That the non-compliance is largely attributed to the provision of an accessible roof top terrace. 4. That the height breach is not associated with additional density beyond what is expected by the controls or planned for the locality (in fact is less than the FSR standard). 5. That the height exceedance will be imperceptible and will 'visually appear as a compatible built form which reflects increased density desired along Princes Highway, Lacey Street and throughout the surrounding locality' (Exhibit M).
4. The written request broadly argues that the buildings have been designed with regard to the slope of the land, including stepping the building form along the Lacey Street frontage, but that the slope of the subject site is a factor that exacerbates the non-compliance. Factually the slope of the land is not significant. As detailed at paragraph [6] the land falls some 2-3m across a distance of 75.885m (the frontage to Lacey Street) or about 2.6-3%. In my view a significant site slope can be a site-specific constraint which forms a sufficient environmental planning ground to justify a height variation in some circumstances. However, in this instance I am not persuaded it is qualitatively or quantitatively sufficient to justify the contravention of the standard.
5. As clarified in Initial Action at [24], the environmental planning grounds advanced in the written request must focus on the aspect or element of the development that contravenes the standard. In contrast I find the grounds advanced in the written request promote the benefits that will be realised by the development as a whole. This finding infects ground (2). Whilst the retention of the heritage item, and the creation of a new view to it, are a benefits of the proposed development, but there is nothing in the request that informs how those benefits justify, or arise from, the contravention of the height development standard.
6. I am satisfied that the provision of an accessible roof top terrace is an environmental planning ground. Whilst the phrase "environmental planning" is not a defined term, Preston CJ considered in Initial Action (at [23]) that it "would refer 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." I am satisfied that provision of accessible access is consistent with s 1.3(g) of the EPA Act, namely 'to promote good design and amenity of the built environment".
7. In relation to whether this ground is sufficient, I note that the provision of accessible access to roof top communal open space is a requirement at Part C2, Section 7: Common Open Space of DCP 2013 for roof top common open space to include equitable access. Given it is a requirement of the DCP, I am not persuaded that the provision of such access is a sufficient environmental planning ground to justify the proposed exceedance. Such access could equally be provided by a development of compliant height. I consider that the environmental planning ground advanced is not qualitatively or quantitatively sufficient to justify the contravention.
8. The final environmental planning ground advanced by the written request is two-fold. Firstly, that the increased height is imperceptible. Secondly that the form of the development is such that it will appear compatible with the form of development either approved in the vicinity of the site, or likely to arise from the development controls.
9. When read in the context of the whole of the written request I am prepared to infer that the final environmental planning ground advanced is more broadly that the form and mass of the development has been designed in a manner to allow the architecture and the siting of the development to respond to its context. I am satisfied the written request argues that this includes:

• having a well setback two storey element adjacent the heritage item; and
• an architectural design that responds to the form of the adjoining approved developments.

1. I note that the developments approved in Wyuna and John Street have a predominant characteristic of framed base elements with recessed upper levels which is reiterated in the proposed development.
2. I am satisfied that such an approach is an environmental planning ground that is specific to the site and is related to the breach of the height limit. It is self evident that the locality is under transition and the height exceedance sought, and the architectural form of the proposed development, is compatible with the form and height of the approved developments in the vicinity of the site. The rectilinear, stepped form of development with a framed base is the emerging character. This is an environmental planning ground that arises from the height breach. Further, one of the objects of the EPA Act is in part to promote good design. Finally, I am satisfied that qualitatively and quantitatively the environmental planning ground is sufficient to justify the contravention of the development standard.
3. For the above reasons, I am satisfied under cl 4.6(4)(a) of LEP 2012. The cl 4.6 request for a variation to the maximum height can be upheld as I am satisfied that:

• The written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and I am satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)).
• The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
• the proposed development will be in the public interest as it is consistent with the objectives of the standard in question and with the objectives of the zone (cl 4.6(4)(a)(ii)).

1. On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the LEC Act. After considering the matters in cl 4.6(5) I am satisfied in this instance it is appropriate to do so.

The effect of the proposed demolition on the heritage significance of the item

1. Clause 5.10 of LEP 2012 provides the requirements for heritage conservation. Clause 5.10(2)(a)(i) mandates that consent is required for the demolition of a heritage item. Clause 5.10(4) states: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This consideration is a precondition to the grant of consent.
2. The heritage experts accept the statement of significance contained in the Heritage Impact Statement prepared by Urbis in July 2020 (the HIS). That statement is: "Sunnyside [McWilliam House] is a rare and important local example of a large residential dwelling constructed in the second half of the nineteenth century. Although it has undergone some changes over time - including to its fabric (reflecting living standards) and to its setting (reflecting the area's subdivision over time) - its relative intactness has allowed it to retain its landmark qualities as an important and historical residence along the Princes Highway. It has also retained a high degree of original and/ or early internal fabric, which further contributes to its historical and aesthetic integrity and enhances its significance. More broadly, the relative intactness of the dwelling allows it to be a good, representative and rare surviving example of a grand, if austerely embellished, late-nineteenth century residential dwelling which developed along major transit routes. The dwelling's former and various uses as a rectory, an elementary school, and public housing imbue it a degree of importance for various groups in the local community. Additionally, the residence was once owned and occupied by Patrick Lacey, an early Mayor of the Kogarah Municipality and local figure who actively lobbied for and improved the amenities of the local area. His memory is immortalised in the naming of Lacey Street, located to the south of the property." (Exhibit G)
3. In oral evidence the heritage experts also agreed that it would be appropriate for the statement of significance to include a reference to the sandstone construction utilised in the item as part of its significance.
4. Against the criteria listed in the NSW Heritage Manual the HIS identified that:

• Criterion (a): The place meets the criteria for historical significance on a local level: "The subject site is one of the oldest houses within the Kogarah Municipality, is situated along one of Sydney's main thoroughfare roadways and is thought to have been constructed before 1870. Notwithstanding some modifications to fabric which reflect changing living standards over time - as well as changes over time to its curtilage which reflect the historical subdivision of the locality - the overall relatively intact nature of the dwelling is able to reflect its importance as a dwelling which dates to the local areas early history. The site is also linked to the redevelopment and improvement of roadways surrounding the area. Accordingly, the subject site is able to meet the threshold to demonstrate historical significance at a local level." (Exhibit G)
• Criterion (b): The place meets the criteria for historical associational significance on a local level: "Originally constructed as a private residence, it was once owned and occupied by Patrick Lacey, an early Mayor of Kogarah Municipality and local figure who actively lobbied for and improved the amenities of the local area. Lacey's memory is immortalised in the naming of Lacey Street, directly to the South of the subject dwelling. As such, the item meets the criterion for associative significance." (Exhibit G)
• Criterion (c): The place meets the criteria for aesthetic significance on a local level: "Although modified since its original construction, the dwelling is a good example of a Victorian-period residential dwelling, and displays early contributory features including its form and scale, roofline and chimney stacks, as well as other internal and external detailing. Later additions- which are not visible from the primary frontage- demonstrate differing degrees of detrimental impact to overall significance. The dwelling has retained landmark qualities as an evidently historical building along this section of the Princes Highway, notwithstanding the diminishment of its original curtilage over time due to later periods of subdivision. The landmark qualities of the building are associated primarily with its location along a main arterial road, as well as its external intactness as a clearly early example of residential development in the local area. Accordingly, the item is able to demonstrate aesthetic significance." (Exhibit G)
• Criterion (d): The place meets the criteria for social significance on a local level: "Throughout its lifetime, the subject dwelling has been used as a rectory, elementary school and public housing dwelling. It can therefore be concluded that there are a number of different social groups within the local area for whom the site is of personal importance. As such, the item meets the criterion for social significance." (Exhibit G)
• Criterion (e): The place does not meet the criteria for scientific significance on a local level: "There is no evidence to suggest that the building demonstrates construction techniques other than those commonly employed at the time. The subject site therefore does not meet the requirements of this criterion." (Exhibit G)

1. The HIS concludes that the 'proposed development would overall engender a neutral and not unreasonable impact on the heritage significance of the subject heritage item, 'McWilliam House'.' They support their conclusion on the following grounds: "- The proposal seeks to conserve, retain and restore the subject heritage item. - The development would entail minor works to the heritage item that would facilitate its ongoing use as a single-occupancy residential dwelling. - The proposal would retain an adequate curtilage around the heritage item at all sides. - The proposal would not disrupt or obscure the primary presentation of the heritage item and its front garden setting to Princes Highway, from any perspective. - The proposed new development is in keeping with the historical subdivision of the area, including the early - twentieth century reduction in the original curtilage of the heritage item. - The proposed new building has been designed as a sympathetic contemporary response to the heritage item, while responding to the existing planning controls for the site and the future built form context of the wider area. - The proposed new building would exhibit a sympathetic form and external detailing, which would result in its visually recessive presentation relative to the heritage item." (Exhibit G)
2. In their joint report the heritage consultants summarised the main heritage issues as:

• How the house is conserved and fitted out.
• The garden setting for the heritage house including its function as either communal or private open space and character of the garden.
• The relationship of the new development in terms of design, scale, height and setbacks to the heritage building and its site.

1. The first issue is agreed by the heritage experts to be resolved by the amended plans and provision of additional information. (Exhibit 2)
2. The second issue is agreed by the heritage experts to be resolved by the allocation of the garden area in front of the heritage building on the site to private open space, rather than communal open space. This is also incorporated in the amended plans (Exhibit T).
3. The principal issue in dispute remains the relationship between the heritage item on the subject site and the siting, height and scale of the proposed development. The experts disagree whether the proposed development has a detrimental impact on the heritage significance of the item.
4. Mr Paul Davies argues that the relationship between the proposed development and the heritage item is inappropriate. He argues: "15. At its most basic level there is no convincing reason set out for the proposed new development to further erode the setting of the house. Sections of the new building of up to 7 storey height are located within the heritage listing and at distances of 3.1 (approx.) metres from the house. This does not require detailed analysis to understand that there is an adverse heritage impact through the erosion of the setting, the removal of the spatial qualities of the site that remain and the scale of the proposed development in relation to the heritage building. … 22. The building, as proposed, is partially located on the listed lots and needs to have a design approach that enhances the heritage building setting rather than a design that introduces larger scale elements such as the framing around the two-storey form. … 26. The scale of the rear section of the new building at seven storeys, set close to the rear wing of the heritage building is also within the heritage listed site and overwhelms the one storey wing at the rear and the two-storey house in front of it." (Exhibit 2)
5. Mr Paul Davies goes on to examine the preceding concerns in the context of the applicable planning controls, the site constraints of three street frontages and the aggregation of the relevant allotments into the development site. He concludes that the scale relationship between the proposed development and the heritage item is one that overwhelms the heritage building through both proximity and height. He argues that the design does not achieve a harmonious balance between the scale of the heritage item, the new building and the space between them. He has included analytical sketches in his evidence to demonstrate his analysis and concerns. It is his evidence that a greater setback is required between the new residential flat building and the heritage item if both the height proposed, and a satisfactory interface, are to be achieved.
6. Mr Paul Davies accepts that the conservation management works proposed to the heritage item itself are a positive benefit to the significance of the item. The scope of these works is agreed between the experts. Further, he accepts the view of Mr Stephen Davies that the increased setback of the adjoining property (190 Princes Highway) will create a new view corridor to the heritage item from the public domain which is a positive heritage benefit arising from the proposed development.

Findings

1. I am required to consider the impact of the proposed works on the significance of the item. Following a consideration of the evidence and submissions I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. My reasoning is as follows: 1. The statement of significance identifies that Sunnyside [McWilliam House] is a rare example of a residential dwelling of its period. 2. In their oral evidence both experts agreed that the rear single storey wing of the heritage item is of equal significance to the main building. 3. The prominence of the house's setting and its landmark quality are elements of the items agreed heritage significance. 4. I accept and prefer the evidence of Mr Paul Davies that the significance of the item is detrimentally impacted by the proposed development. I agree with and adopt his analysis and reasoning as summarised at [93] - [96]. 5. I find that, on the basis of the photomontages, elevations and sections provided, I am satisfied that, contrary to Mr Stephen Davies conclusion, the setting of the item will be detrimentally affected. I do not accept Mr Stephen Davies conclusion that the setback of the proposed development in proximity to the rear wing of the heritage item is appropriate and sufficient. In my view the siting of the new development in such close proximity to the item creates a deleterious relationship between the heritage item and the new building. The proposed development detrimentally impacts on the significance of the item by a reducing its curtilage and providing insufficient separation to maintain an appropriate setting for the item. 6. Further, I am not persuaded that the separation distances between the heritage item and the new building forms proposed are adequate to provide the visual separation necessary to maintain the items prominence and landmark qualities. The obscuring and dominant impact of the proposed development is self-evident in the photo montages and architectural drawings contained in Exhibit T. 7. I accept the agreed position of the heritage experts that the proposed development will result in the positive outcomes consistent with the enhancement of the heritage significance of the item, not the least of which are the works proposed to be undertaken in the Schedule of Conservation Works (Exhibit H) and the creation of a new view to the heritage item by the deep front setback of the residential flat building proposed by the development. I have also given consideration to the submission from the current owner of the property detailing the cost and complexity of the various works required to the heritage item (Exhibit 1). 8. However, on balance I find that the heritage impact to the item from the proposed development is of such detriment that it outweighs the positive benefits arising.
2. Further, considering the detrimental heritage impact in the assessment of the development application, along with the other matters for consideration under s 4.15(1) of the EPA Act, I am satisfied that the impact is sufficient to warrant the refusal of the application.

Orders:

1. The orders of the Court are: 1. The Applicant is granted leave to rely on amended architectural plans as contained in Exhibit T. 2. As the parties agree that the changes to the development in (1) are not minor the Applicant is to pay the Respondent's costs thrown away as a consequence of the amendments pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or assessed. 3. The development application DA2018/0513 for demolition of the four dwelling houses and associated garages/outbuildings; works to the heritage item and its conversion of the item for use as an apartment and in part for communal facilities; construction of a new seven storey residential flat building with two levels of basement parking and a total of 49 units at 188 (also known as 186 - 188) and 190 Princes Highway, Beverley Park, and 2, 4 and 6 Lacey Street, Kogarah Bay is refused. 4. The exhibits are returned with the exception of Exhibit T, M and 6.

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: 20 October 2020