Vasiliades v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2017-09-05

Judgment

COMMISSIONER: This appeal has been lodged in response to the deemed refusal by Canterbury-Bankstown Council of consent for a four storey mixed use development. The proposed building comprises ground floor retail, basement parking and three levels of boarding rooms. The development is proposed at 118 Duntroon Street and 36 Floss Street, Hurlstone Park.
In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the 'Court Act') was unable to be reached between the parties to resolve the dispute in matter that acceptable to the parties. The conciliation conference was terminated on this basis
The applicant was granted leave by the Court to rely on amended plans and documentation in June 2017. At the commencement of the proceedings the applicant sought, and was granted leave, for a further set of amended plans that reflected the changes to the proposal discussed by the experts in joint conference.
The Council maintains the applications should be refused for the following reasons: 1. The proposal is not compatible with the character of the local area; 2. The building is out of context with the proposed heritage conservation area ('HCA'); 3. The proposal exceeds the height limit for the site under the new local environmental plan controls; and 4. The access, parking and loading area will affect the amenity of adjoining properties.
If the Court was to provide consent to the application the contention between the parties is whether the development falls under the requirements of BASIX (refer paragraph 14)

The site and its context

The site is legally described as Lot 3, 4 and 5 in DP 6709 and has a street address of 118 Duntroon Street and 36 Floss Street, Hurlstone Park. The combined site area is 1,111.9m² and the site falls to the rear (north-east) boundary. Until recently the site contained two residential dwellings, which have been demolished.
The site falls within a proposed HCA known as the Floss Street HCA, and is located in proximity of the Hurlstone Park Railway Station which is listed on the State Heritage Register.
Adjoining the site to the north is a single storey building which forms the start of a small grouping of commercial buildings directly opposite the railway overpass. The central building in the group (30 Floss Street) is two storeys with a tall stuccoed parapet which gives it an equivalent height of a three storey building form.
To the south of the site is an interwar period two storey residential flat building (124 Duntroon Street) which is setback from the street and has a pitched roof. Further to the south the form of development is characterised by single storey residential dwellings that are characteristic of the proposed HCA.
An aerial photograph of the locality is provided below:
The current streetscape of the intersection of Floss and Duntroon Street is depicted in the following (noting that the dwellings on the subject property have since been demolished):

Planning Controls:

Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 ('the Act') requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
The application is lodged utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 ('SEPP ARH'). This policy commenced in July 2009 with the "local character test" included at cl 30A via amendments on the 20 May 2011. This clause states: a consent authority must not consent to development to which this division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Council contends that the development applications are not compatible with the character of the local area.
There is no contention that the proposal fails to comply with the mandatory standards is set out in cl 30(1) of the SEPP ARH, which are a precondition to consent.
The application of State Environmental Planning Policy (Building Sustainability Index: (BASIX) 2004 to the application is in dispute between the parties.
Clause 2A to Schedule 1 of the Environmental Planning and Assessment Regulation 2000 ('Regulation') requires a BASIX certificate to be submitted with development applications for any BASIX affected building. Clause 3 of the Regulation includes the following definition: "BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel."
Clause 97A of the Regulation is in the following terms: "97A Fulfilment of BASIX commitments (1) This clause applies to the following development: (a) BASIX affected development, (b) any BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied). (2) For the purposes of section 80A (11) of the Act, fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development."
Canterbury Local Environmental Plan 2012 ('LEP 2012') applies to the site. Pursuant to LEP 2012 the site is zoned B2 Local Centre. The objectives of the B2 zone are as follows: "• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres."
The proposal is defined as a boarding house and is permissible, with consent, in the zone.
The consent authority must have regard to the objectives for development in the zone when determining a development application (cl. 2.3(2) LEP 2012).
LEP 2012 prescribes a maximum height for development on the site as 14m (cl. 4.3(2)). No maximum floor space ratio is prescribed. The development complies with the development standards.
Relevantly the site is subject to a proposed amendment to LEP 2012 which if gazetted would: 1. Include the site within the Floss Road HCA; 2. Reduce the maximum height for development on the site to 11m; and 3. Amend the zoning of land to the South and East of the subject site from R4 Medium Density Residential to R2 Low Density Residential.
The development on the subject site is subject to the requirements of the Canterbury Development Control Plan 2012 ('DCP 2012'). The clauses of DCP 2012 relevant to the appeal are: 1. Part 1: Introduction; "A1.9 Savings Provision If an application has been made before the commencement of the DCP in relation to land to which the DCP applies, and the application has not been finally determined before that commencement, the application must be determined as if the DCP had not commenced." 1. Part 3: Business; "Objectives for Business Centres O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function. O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal. O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres O4. Facades are maintained in the business centres where they contribute to the character of the traditional main streets. O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians. O6. Impacts of commercial development on adjacent residential properties are minimised." 1. Clause 3.1.6 Height "Objective O1. New buildings have a scale that is visually compatible with adjacent buildings and heritage buildings, where this may require height of new development to (be) lower than the permitted height. O2. Transition in scale and bulk from the highest in the middle of centres to lower at the interface with residential zones and residential buildings … Controls: (i) refer to the CLEP for maximum building height in metres; (ii) For proposed new buildings in a traditional streetscape, the building height at the street wall is to be compatible with the height of adjoining and nearby two storey buildings." … 1. Clause 3.1.8 Setbacks "Objective O1. Establish the desired spatial proportions of the street and define the street edge. O2. The traditional street building wall is maintained where this is the existing or desired future character. O3. Minimise building size and bulk by setting back upper storeys. O4. Minimise amenity impacts on adjoining properties. O5. Increased setbacks along Canterbury Road provide for possible future implementation of street parking and assist in reducing traffic noise impacts. Controls i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table. ii. A rear setback is not required if the land adjoins a lane" … B2 Zone 1-3 storeys Fourth storey - 3m (except Campsie Civic Centre Precinct, Canterbury Town Centre and Roselands Shopping Centre and Roselands Shopping Centre where existing facade is to be retained) Build to front boundary Greater than four storeys - 5m (all storeys to be set back this distance including the fourth storey)

Clause 3.2.1 Context "Objectives O1. Features of existing buildings that influence streetscape and local character are either maintained or reflected in new buildings. O2. Alterations and additions complement the architectural character of the existing building. O3. Where there is no character to reflect, design is contemporary and appropriate in its context." 1. 3.2.3 Facade design and articulation "Objectives O1. Effective modulation and variation of building design to reduce the appearance of scale and mass, provide interest, diversity or emphasis, and provide a comfortable feel for humans. O2. All elements of the façade and roof are integrated into the architectural form and detail of the building. O3. To achieve an appealing streetscape appearance. Controls … Setback new 4 and 5 storey behind retained facades xi. Incorporate the following in the composition of the new upper facade: • Traditional external finishes for walls, such as exposed dark brickwork and render, or painted concrete, • Vertical window and door opening, columns, and colour to create vertical elements, • Parapets and window hoods, • Recessed balconies and deep windows to create shadow lines, • High solid to void ratio, • Individual smaller shop front, or articulation to reflect the fine grain pattern of the traditional shopping streets. xii. Design upper levels so they do not compete with the aesthetic character and dominance of the street level facade."
Whilst DCP 2012 also has specific controls for boarding house uses they are not in contention in these proceedings.
The Council has developed a draft DCP that would come into force with the proposed amendment to LEP 2012. The relevant controls are as follows: "B 8.5.4 Infill Development Objectives: Development within the HCA is to be compatible with the surrounding built form and urban pattern by addressing the Area Character Statement for the relevant HCA and responding sympathetically to: Topography and landscape Views to and from the site Significant subdivision patterns and layout Front and side setbacks The type, siting, form, height, bulk, roof scape, scale, materials and details of adjoining or nearby contributory buildings The interface between the public domain and the building alignments and property boundaries Colour schemes that than a hue and a tonal relationship with traditional colour schemes Controls … C4: The bulk, height, scale, predominant roof form and building envelope of infill development must be consistent with nearby contributory buildings and that of the HCA as a whole. … B 8.5.12 Retail and Commercial Buildings Objectives: O1 To ensure that development retains and enhances the character of contributory buildings and the heritage conservation area. …. Controls: New Infill Development C14 New retail and commercial buildings must maintain and reflect: a) The established patterns and proportions of existing elevations. b) The consistency of horizontal and vertical facade features such as window heights and widths, bay widths, awning and parapet lines. c) The established rhythm and pattern in the street including front and side setbacks d) Existing materials and finishes C15 New or infill development should not be of greater bulk and scale that the existing significant buildings in the precinct C16 Infill development should generally be recessive to fit into the existing heritage character."
The DCP provisions are a mandatory consideration, and a focal point, of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However Section 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

Expert Evidence

In line with the issues in dispute in the proceedings the parties engaged experts in traffic engineering, town planning, urban design and heritage. The experts for the applicant were: 1. Mr Michael Logan - Traffic Engineering; 2. Mr Lewis Adey - Town Planning. 3. Ms Samantha Polkinghorne - Heritage 4. Mr Geoff Baker - Urban Design The experts for the Council were: 1. Mr Abdek Albaba - Traffic Engineering; 2. Mr Geoff Goodyer - Town Planning; 3. Mr Paul Davies - Heritage
Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.
At the conclusion of the joint conferencing process the parties traffic engineers reached agreement on the issues in dispute. The resolution of these issues required amendments to the ground floor plan to provide a "clear zone" to facilitate sight lines for drivers exiting the proposed development to see traffic approaching from the north on Floss Street (Exhibit P). Both experts are satisfied this is achieved by the plans before the Court. No further issues are contended in relation to traffic engineering.

The issues

The fundamental issue for determination in this appeal is whether the proposed development is appropriate for its context and compatible with the current and desired future character/ streetscape of Duntroon and Floss Streets.
Relevant to consideration of that fundamental issue is the operation of cl 30A of SEPP ARH (refer paragraph 11) which requires the Court to consider the compatibility of the development with the character of the local area. In assessing "compatibility" the weight given to the draft planning instruments is a relevant consideration to determining the desired future character.

What is the character of the local area?

In the planning and urban design joint report the experts agree that there are two relevant contexts: "The immediate context of the subject site, which (except for the flat building at 124 Duntroon Street, which is two storeys, set back from the street and with a pitched roof) comprises one or two storey buildings with street walls and tall parapets and which contain residential and/or commercial uses; and The context beyond, which consists of detached single storey dwellings, several detached two story dwellings and a three storey residential flat building at 8-10 Floss Street. In terms of use, the site now forms the edge between the residential part of Duntroon Street and the small commercial grouping at the station. In terms of scale it is the flat building at 124 Duntroon Street, which forms that edge."
The draft inventory sheets for the Duntroon Street and Floss Street HCA conservation areas contain the following physical descriptions of the context: "The Duntroon Street Heritage Conservation Area consists of detached face brick single storey Federation Queen Anne and Inter war California bungalow housing, detached and semi-detached late Victorian period housing of one and two storeys and Inter war period two storey residential flat buildings. Original details remain in many instances, such as front verandahs, original roof forms, face brickwork and original timber-framed windows and timber panelled doors consistent with the periods and styles of the relevant houses. The Floss Street Heritage Conservation Area consists of predominantly single storey Federation Queen Anne style detached brick houses, many with original slate or terracotta tiled roofs, an Inter war period residential flat building and the Inter war Californian bungalow style house at No. 36 Floss Street. Original details remain in many instances, such as front verandahs, original roof forms, face brickwork, narrow driveways with garages to the rear or carports to the side of houses, and original timber-framed windows and timber panelled doors consistent with the periods and styles of the relevant houses. Agenda for the Ordinary Meeting of Canterbury Bankstown Council 18 April 2017"
The joint report of the planning experts concludes that the "local area" constitutes the visual catchment in the immediate vicinity of the site.
The experts conclude that the locality is characterised by one and two storey buildings including one commercial building with high parapets, equivalent to three storeys in height (Exhibit 5). They also conclude that the character of the local area includes a consideration of the future character contemplated by the planning controls.

Is the development proposed compatible with the character of the local area?

Existing Character

The planning and urban design experts agree that it can be appropriate to have a building larger than single storey on the subject site and the three experts agreed that 3 storeys is an appropriate form (Exhibit 4).
The agreed evidence of the planning experts is that the development, as amended by the current plans, is compatible with the character of the area and satisfies the requirements of cl 30A of SEPP ARH (Exhibit 5).
In contrast it is Mr Davies view that the inclusion of a fourth storey is uncharacteristic and overbearing within the context of the immediate and broader setting (Exhibit 5). His reasoning for this is as follows: 1. The fourth storey is a large element on an already large building set on the crown of the hill in the most dominant position in the suburb; 2. While the upper floor has only limited and partial views from the immediate surrounds, it will be seen in diagonal views from north and south and it will be seen in long views from the west in Crinan Street 3. With the imminent reduction in height proposed and the creation of the HCA the proposed building will be out of character with the future development that arises from these controls. (Exhibit 4)
Mr Davies also argues that the design of the fourth storey is not compatible or characteristic of the design of the remaining building: "The design of the fourth floor is out of character with the balance of the building even though the changes made have improved its overall appearance. He notes that the form can be seen from various locations and if there were to be a fourth floor that it should be further integrated with the design using shading devices, overhangs etc to remove the stark and bland angular form of the building. Given its extreme western frontage and lack of sun shading (noting the building type does not require the same thermal control as other building types) the addition of shading devices would benefit the occupants as well as minimise the scale and bulk of the form." (Exhibit 4)
It was Mr Davies oral evidence that despite the amendments to the building, the design of the fourth floor is not well integrated into the overall architecture of the building. It is his evidence that a more traditional approach, that emphasised the parapet line from which the building form stepped down away from the street, would be more successful in the context.
Mr Davies identified the following proposed changes to the fourth storey which in his opinion would improve its compatibility with the remainder of the building, and the context: 1. The inclusion of additional shading devices above the lintels of the windows on the fourth floor to improve to break down the massing of this façade and emphasise the horizontality of the top of the building; 2. Provide an increase in the setback of the upper floor to reduce the prominence of the northern façade in the view of the proposed building from Crinan Street, and the railway overpass.
In oral evidence it was Mr Davies conclusion that with these changes the development would be compatible with the character of the local area.
In contrast the evidence of Mr Baker is that the revised drawings (Exhibit A) include a number of changes that address Mr Davies concerns, in particular: "The external walls facing Floss and Duntroon Streets are now constructed of the same face brick used on the lower floor levels as they address these streets and similar brick detailing is employed. Retractable sun shading devices are now provide. This approach to sun shading is recommended to ensure that the added sun control devices will not be visible from the streets in front of the building." (Exhibit 4)
It is the evidence of Ms Polkinghorne that the setback of the fourth floor enables this part of the building to not read as part of the primary facade. Her reasoning is that the setback of the fourth storey, recessive colours, and low roof line succeed in reducing visibility of this storey in the streetscape.
The heritage and urban design experts have differing opinions as to the visibility of the development in vicinity of the site and from distant views. These differences are summarised below: 1. Mr Baker argues that the setback of the fourth floor is sufficient to render it invisible from those streets in views directly opposite the site (Exhibit 4). It is his view that in oblique views from Floss and Duntroon Streets, a small portion of the fourth floor may be visible, but he concludes that this is not of any significance. In relation to distant views it was his oral evidence that the distant view from Crinan Street is focused primarily on the tall commercial building at 30 Floss Street due to its alignment with the main axis of the street and that the proposal will not stand as noticeably out of context (Exhibit 4). His conclusion is supported by photographs appended to the joint report, including the following: 1. Within proximity to the site, it is Ms Polkinghorne's view that the streetscape experience of the building will be three storeys. She concludes that the fourth has no significant visibility within the HCA and as a whole the proposed development will have no impact on the conservations areas significance, if and when it is put in place by the Council. 2. Further Ms Polkinghorne reasons that the bulk and scale of the proposed development is consistent with the existing characteristics of the group of commercial premises that exist at the termination of Crinan Street. The form of the development proposed by the application provides support to this existing group of buildings that contrast with the characteristic single or two storey residential dwellings. 3. In contrast it is Mr Davies view that the proposed building will be observable and prominent due to its elevation above the main retail development in Crinan Street, particularly on the north eastern side of the shops. Mr Davies relies on a series of photographs, tabled as Exhibit 8, that he argues establishes that from a distance the proposed building will read as a large four storey element against the skyline, at a height greater than the existing building at 30 Floss Street. Additionally he argues that the top floor of the building will be visible (due to the oblique view) from the termination of the shopping strip in Crinan Street and the railway overpass, and be of an uncharacteristic scale and proportion. 4. Mr Davies reasons that the district views are relevant to the appreciation of the scale and form of the HCA, with the values of the conservation area being revealed progressively as you approach the town centre. In relation to the views in closer proximity to the site it is Mr Davies evidence that the prominence of the height of the building in the context of Floss and Duntroon Streets is uncharacteristic and has a detrimental impact on the streetscape.

Future Character

Relevant to the determination of compatibility with character is consideration of the likely future character of an area and whether the planning controls are aimed at preserving that character (Veloshin v Randwick Council [2007] NSWLEC 428 at [33]).
The planning experts in their joint conference considered the relevance of the Sydenham to Bankstown Urban Renewal Corridor Draft Strategy (the draft strategy) to the current proceedings. In oral evidence the experts agree that the strategy is not currently at implementation, and in the future would inform the preparation of any amendments to the local planning controls.
In addition the Council has prepared a planning proposal that intends to: 1. protect and conserve key buildings and areas in Hurlstone Park that have heritage significance and reflect the recommendations in the Hurlstone Park Heritage Assessment Study; 2. list 51 local heritage items and create seven HCA's; 3. rezone all R3 Medium Density Residential and R4 High Density Residential zoned land within the proposed HCA to R2 Low Density Residential; 4. Amend the maximum building height permitted in the B2 Local Centre zone existing in the HCA from 14m to 11m to enable new development to be in keeping with the prevailing development form in those parts of the HCAs that are within the Hurlstone Park Town Centre. (Exhibit 2, Tab 5)
It is the evidence of Mr Adey that the draft strategy will allow development between 5-7 storeys, and this is representative of the desired future character. He notes that the strategy references the Canterbury Bankstown Heritage Study, but argues that in fact the heritage study did not recommend changes to the planning controls.
Mr Adey argues there is uncertainty in relation to what controls the Council will finally adopt through the planning proposal process for the precinct as: 1. The Council will be newly elected, and their views on the planning proposal are unknown; and 2. The planning staff have yet to review and assess the submissions from the recent exhibition of the planning proposal.
In the alternative Mr Goodyer argues that: 1. The draft strategy has not, as yet, been the subject of s117 direction and therefore is not a matter for consideration under s79C(1)(a) of the Act, except to the extent that such a consideration is in the public interest (s79C(1)(e)); 2. In relation to Council's planning proposal Mr Goodyer argues that whilst it is imminent, and it is appropriate to give the draft controls some weight, it is not appropriate to give the draft controls determinative weight as they are subject to change.
In undertaking his assessment of the acceptability of the development Mr Davies gives weight to the imminent change (lowering to three storeys) in height and the creation of the heritage conservation area. He concludes that the building at four storeys in height will be out of character with the balance of the commercial and retail area as well as the largely single storey residential area to the south that is located within the same heritage conservation area (Exhibit 4).

Submissions

Mr Pickles primary submission is that the development is compliant with the current planning controls in LEP 2012 and that this is the first focus of assessment.
Mr Pickles argues that in assessing the compatibility of the development with the context the Court should utilise the principles established by the Court in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ('Project Venture Developments').
Mr Pickles argues that, on the basis of the evidence of Ms Polkinghorne, Mr Adey and Mr Baker, that the development will remain compatible with the character desired by the Council if the planning proposal progresses. Mr Pickles submits that the draft planning proposal seeks to make no changes to the aims of the relevant zone or the objectives of the height control, and seeks only to require consideration of the heritage significance of the proposed HCA (through cl 5.10 of LEP 2012) and provide a reduction in the mapped height limit for the site. He argues that on a fair assessment of the draft DCP controls the proposal meets the objectives and controls of the draft instrument.
In response to the evidence of Mr Davies it is Mr Pickles submission that the proposed development will read as a three storey form, or be indiscernible, from any location within the two proposed HCA's. He notes the agreement of both the heritage and planning experts that such a three storey form is acceptable (refer paragraph [35- 36]). He argues that this meets the intent of the draft DCP controls, in particular B 8.5. 4: Infill Development and B 8.5.12 Retail and Commercial Buildings.
Applying these draft DCP controls it is Mr Pickles submission that the draft Floss Street HCA emphasises the precinct is adjacent to the railway station and the mix of commercial and more substantial residential buildings reflects its proximity to transport and services (Exhibit 2, tab 5). He submits that in the application of the above controls in the assessment process it is logical to conclude that this is relevant built form and urban pattern that the HCA seeks to protect.
In regards to the weight to be given to the planning proposal Mr Pickles submits that it is clear from the wording in the tendered letter to the Hurlstone Park Chamber of Commerce (Exhibit N) that Council staff have not finalised their assessment of the submissions. He submits that on the basis of the evidence, Council have not reached a final position on the form of the planning proposal that will be recommended to the newly elected Council.
Consistent with Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 ('Terrace Tower Holdings'), Mr Pickles submits that the Court should give the planning proposal some weight, but that this should be tempered by the fact that the planning proposal is in a state where there is a degree of imminence, but given the Council has not yet finalised reviewing submissions, the form of the specific provisions is uncertain.
In relation to the Council's contention that the development is "out of character" with the locality (referring to cl 30A of SEPP ARH) it is Mr Pickles submission that this contention was more relevant to the application prior to the amendments that arose out of the joint conferencing. He argues that the Court should rely on the predominant view of the experts which is that the development is compatible with the character of the locality.
In contrast it is Mr Zoppo's submission that the development does not meet the objectives of the current DCP height controls at cl 3.1.6 (refer paragraph [22]). His reasoning is that on Mr Davies evidence the development is not visually compatible with adjacent buildings and heritage buildings (Objective 01) and does not achieve an effective transition to the adjoining residential development (Objective 02).
Mr Zoppo submits that the draft LEP should be given significant weight as Council has been provided the delegation from the NSW Department of Planning to make the amendments to the LEP. Mr Zoppo relies on the evidence of Mr Goodyer that this delegation indicates that the Department considers the draft LEP is consistent with the draft Strategy. He argues that there is no evidence before the Court that the Council will make amendments to the draft controls in response to submissions received.
In contrast to Mr Pickles, it is Mr Zoppo's submission that the Court should be confident in relation to the detail of the draft instruments on the basis of the long history of the development of the draft LEP controls, and the level of work undertaken to underpin these controls and the draft DCP controls.
In assessing the proposal against the draft controls (refer paragraph [55]) Mr Zoppo argues that the Court should prefer the evidence of Mr Davies that Objective 01 of B 8.5.4 Infill Development is not achieved by the proposal on the basis that the fourth storey is not compatible with the surrounding built form, and is perceptible in views to the site from important vantage points. He argues that the development also fails to meet the requirements of B8.5.12 C15 (refer paragraph [24] as the development will read as a larger scale that the existing building at 30 Floss Street which is proposed as a contributory building.
In applying the principles of Project Venture Developments, Mr Zoppo relies on the evidence of Mr Davies, and the Hurlstone Park Heritage Assessment to define the essential elements of the desired future character. He submits that if approved the development would not be compatible with the desired future character sought by the Council.

Findings

The issue of compatibility of a proposal within an existing context has been considered by the Court on many occasions. Roseth SC in Project Venture Developments provided guidance in the assessment of whether a development would be compatible and considered that for a development to be compatible it is to be capable of existing together in harmony and is different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve.
Roseth SC suggests there are two tests, one is whether a proposal's physical impacts on the surrounding area are acceptable and relevant to these proceedings, the second is if it is in harmony with the buildings around it and the character of the street. He states: "26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials."
Senior Commissioner Moore (as he then was) in considering the question of compatibility in Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019 at [22] concludes that: "the test of "compatibility" is distinctly different from the concept of "consistency" with the character of the local area. Compatibility is a less rigid and less demanding standard of assessment than that which is engaged by a test of consistency."
The applicant has provided the following photo montage street view of the proposed development, noting that the façade treatment has been amended since this montage was produced: (Exhibit G)
I have utilised the framework in Project Venture Developments to assess the compatibility of the proposal in the context and concluded as follows: 1. In relation to the first test I find that the proposal's physical impacts on the surrounding area are acceptable; 2. However I am not satisfied that the proposed building is compatible with the context of the site, is in harmony with the buildings around it, or the character of the street. I have formed this view on the basis of the following reasoning:

I accept the agreement of the experts that it can be appropriate to have a building larger than a single storey on the site, and that 3 storeys is an appropriate form;
I accept the evidence of Mr. Davies that the design and presentation of the fourth floor, as detailed in the plans before the Court, is uncharacteristic in the immediate context and the broader setting.
I accept the submission of Mr Zoppo that the application does not satisfy the height control in DCP 2012 at cl 3.1.6 (ii) as the height at the street wall is not compatible with the height of adjoining and nearby two storey buildings. I am not persuaded that the application represents an alternative solution that is capable of meeting the objectives of the height control.
I am satisfied that the development does not achieve the objective of having "scale that this visually compatible with adjacent buildings an heritage buildings were this may require the height of the new development to (be) lower than the permitted height" (cl 3.1.6(ii)). I note that noncompliance with the building height standard in and of itself cannot be utilised to refuse consent (cl 29(2)(a) SEPPARH), however in this matter it is informative in relation to compatibility;
Currently the foremost building in the immediate context of the site is the tall parapeted building at 30 Floss Street (Consult Group building). I am satisfied that this building form, located at the top of a prominent rise, sets the datum for an appropriate maximum height for this group of buildings. The exceedance of this datum by the proposed building contributes to its lack of compatibility (Project Venture Developments). This is demonstrated in the photomontages provided by the applicant in Exhibit G.
I am not persuaded by the evidence of Mr Baker and Ms Polkinghorne that the proposed development will provide beneficial support to the existing group of commercial buildings at the termination of Crinan Street. I am satisfied, based on the site view and the evidence of the experts that the proposed development will compete and detract from the existing Consult Group building's prominence. This impact arises from the height of the building at a distant view, but also from its visibility at an oblique angle due to the orientation of the site.
Relevant to the determination of compatibility with character is consideration of the likely future character of an area and whether the planning controls are aimed at preserving that character (Veloshin v Randwick Council [2007] NSWLEC 428 at [33]). I am satisfied that the draft LEP, whilst not determinative, seeks to preserve the existing character. I am satisfied this intent should be given import in determining if the current DCP control height control in DCP 2012 at cl 3.1.6 (ii) should be varied, and in the assessment as required by cl 30A SEPPAH.
Consistent with submissions, I have given the draft planning proposal some weight (Terrace Tower Holdings) and I note the Council recognises this precinct as worthy of listing and that the Floss Street HCA proposes to include the current site within the bounds of that HCA.

In my assessment I have given weight submissions made by members of the public in accordance with this Act or the regulations (s 79C(1)(d) of the Act), and the consistency of those submissions with the actions of the Council in producing draft planning documents that seek to identify and protect the specific characteristics of the precinct in the vicinity of the site.
I have considered the compatibility of the proposed development with the character of the local areas, as required by cl 30A SEPPAH. On the basis of my findings at paragraph [68] I find that the development is not compatible and that the application warrants refusal on the grounds the development has a detrimental impact on the current and desired future character of the locality (pursuant to s 79C(1) (b) of the Act).
Having found that the development application warrants refusal it is not necessary to deal with the other contentions.

Costs

As noted at [3] at the commencement of the proceedings leave was granted for the applicant to rely on a further amended set of plans that sought to address the issues and contentions raised by the Council and the experts through the joint conferencing process
Section 97B of the Act relevantly provides: "97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application."
In Cachia v Manly Council (No 2) [2009] NSWLEC 1107 Moore SC (as he then was) pointed out that for s 97B to be of effect, two steps are necessary: "Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'."
In Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153; [2009] NSWLEC 153 Pepper J (at [42]) articulates the principles that may assist in determining whether amendments are minor, as follows: "(a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17])."
Since the Court provided leave to the applicant for amended plans, a number of design changes that have been made to the plans. These include the following: 1. Deletion of a boarding room on the first floor plan; 2. Removal of a steel framed structure on the boundary; 3. The return of the materials utilised in the front façade of the building to the side elevations; 4. Addition of retractable sun shading to the windows of the fourth floor; 5. Change in materials and colours of the fourth floor facades; and 6. The continuation of the brickwork colonnade to the ground floor and an alteration to the ground floor setback to align with the street boundary.
In Marinkovic v Rockdale City Council (2007) LGERA 385; [2007] NSWLEC 71 ('Marinkovic'), Preston CJ considered at [22] the reasonableness of amendments by an applicant during a class 1 proceeding and states: "22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. 23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment."
In these proceedings I find that the amendments proposed by the applicant are minor are consistent with what is stated in Marinkovic at [22] as being part of the Class 1 appeal process and have not resulted in the Council having costs thrown away as a result of the changes. As such I propose no order as to costs.

Orders

The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is dismissed; 4. Development application DA-560/2016 for consent for a four storey mixed use development comprising ground floor retail, basement parking and three levels of boarding rooms at 118 Duntroon Street and 36 Floss Street, Hurlstone Park is refused; 5. The exhibits are returned with the exception of exhibits 1, A, and B. ……………. D M Dickson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2017

(2009) 169 LGERA 153

(2007) 151 LGERA 385

(2003) 129 LGERA 195

(2001) 115 LGERA 373

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Judgment (15 paragraphs)

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Cases Cited (14)