Vortex Property Group (NSW) Pty Ltd v Georges River Council

Land and Environment Court (NSW)|2019-03-06

Introduction

This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of DA 2017/0519 for the demolition of two existing single dwellings and various freestanding outbuildings and the construction of a 9 and 10 storey residential apartment development containing 29 apartments, and a ground level retail space, with basement car parking for 33 cars.
The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 6 December 2018 records the background to the application and the relevant statutory controls. At the commencement of the hearing, the applicant was granted leave to rely on amended plans which are found in Exhibit B. The essential facts follow.

The site and its context

The site is located on the northern side of Gladstone Street, Kogarah and is at the intersection with Victor Street, Railway Parade North and Railway Lane - forming an irregularly shaped site with multiple frontages. The site has an area of 807.8m2, with frontage measuring 30.5m to Gladstone Street, 24.29m to Victor Street, 4.73m to Railway Parade North and 20.58m to Railway Lane.
The site is within the Kogarah North Precinct (KNP), and is in close proximity to Kogarah Town Centre, Kogarah Railway station, St George Public and Private hospitals, and education facilities including; Kogarah High School, and St George Girls' High School. It is opposite a large grassed playing field, and parking area that comprises the whole block bounded by Gladstone Street, Victoria Street, Palmerston Street and Victor Street.

Background to the appeal

The KNP is an area undergoing substantial transition from low density residential to high density residential to accommodate greater housing in Sydney's south. As the appeal relies on a number of statutory instruments and strategic policy documents prepared by Kogarah Council (later the Georges River Council), some background to the development of the relevant controls follows below.
In May 2017, Amendment 2 to the Kogarah Local Environmental Plan 2012 (KLEP), referred to as the New City Plan, became effective. The New City Plan is described in Council minutes of the time as embodying key elements of the earlier Kogarah 2031 Housing Strategy (Ex G, Tab 4), and was considered to be an appropriate vehicle to formally seek community views on housing opportunities as Council considered there would be significant change to the existing character of the KNP.
At the time the KLEP was gazetted, the administrator of the Council resolved that 'Design Option 3', contained within the Kogarah North Precinct Urban Design Strategy (UDS), would be adopted as an interim set of planning controls, pending the future adoption of a Kogarah Development Control Plan 2013 (KDCP) that would presumably contain aspects of the UDS. It was not until after this time that the UDS and a draft KDCP went on public exhibition, between September-October 2017. The UDS was endorsed in November 2017 and the KDCP was adopted in December 2017, becoming effective on 10 January 2018.
It is clear that Part E4 of the KDCP draws heavily on the UDS. This is evident in the replication of a number of key diagrams from the UDS, including the artist's impression of the KNP which is also featured.
However the parties dispute the weight that should be given to the KDCP and the UDS given the tension between the controls found in the KLEP, and the apparently constraining influence of the provisions found in the KDCP, particularly the floor space ratio (FSR) achieved by 'Design Option 3' which is stated as resulting in an FSR of 2.52:1 across the zone which is at odds with the FSR contained in the KLEP at 4:1. In essence, the applicant asserts that the respondent, and their experts, rely on aspects of the UDS that informed, but are not a part of the KDCP, and to the extent that they are, they are so at variance from the KLEP that they should be disregarded.
Also relevant to the KNP is the recent adoption by Council of the Kogarah North Public Domain Plan (Ex 10 (PDP)) on 11 February 2019 as a strategic planning document that is intended to inform:

The preparation of a new Georges River Contributions Plan and Planning Agreement Policy, and
Advice to applicants on Council's requirements for public domain works in the KNP.

Relevant statutory controls

A number of State Environmental Planning Policies relate to the proposed development. Most relevantly, these include: 1. State Environmental Planning Policy (Infrastructure) 2007 (ISEPP). Clause 87 of the ISEPP is of particular relevance as it requires a consent authority to consider the 'Development near Rail Corridors and Busy Roads - Interim Guideline' published by the Department of Planning in order to be satisfied that the specified acoustic levels will not be exceeded prior to the granting of consent. 2. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65), and the Apartment Design Guide (ADG). SEPP65 requires a consent authority must not grant consent if, in the opinion of the consent authority, the development does not demonstrate that adequate regard has been given to the (a) design quality principles, and (b) the objectives specified in the ADG for the relevant design criteria.
The site is zoned R4 - High Density Residential under the KLEP. The proposed residential apartment development is permissible with development consent.
The objectives of the R4 zone are as follows; • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The most relevant aspects of the KLEP are as follows; 1. Clause 4.3 Height of buildings which sets the maximum building height at 33m for the subject site, and whose objectives are in the following terms: (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. 1. Clause 4.4 Floor space ratio which sets the maximum floor space ratio applicable to the site at 4:1. 2. Clause 5.10 Heritage conservation, to the extent that the site is adjacent to a heritage item. 3. Clause 6.5 Airspace operations as the site is affected by the Obstacle Limitation Surface (OLS) for Sydney Airport. I note that approval was obtained prior to the commencement of the hearing which satisfies me that the requirements of this provision have been met.
Provisions contained in the KDCP are also relevant, particularly Part E4 - Kogarah North Precinct as it adopted a number of key urban design principles found in the UDS.

Public submissions

As the site has been the subject of an earlier DA, surrounding property owners were notified in November 2017, and again in December 2018 following leave being granted to the applicant to rely on amended plans.
Four submissions were received by Council following notification of the application before the Court, including a submission from the Department of Education on behalf of Kogarah High School expressing concern in relation to:

Overshadowing of the Kogarah High School grounds
Overlooking of the school
Traffic safety concerns for students and other pedestrians

At the site view, the Court heard from a local resident and Councillor with Georges River Council, Ms Leesha Payor. Ms Payor's primary concerns are detailed in a letter dated 20 February 2019, and relate to car parking and scale of development in the vicinity of a heritage item.

Consideration of the issues

It is generally agreed that many of the issues raised in the contentions are inter-related, and have their origin in the tension that has been identified between the numerical controls contained in the KLEP, and the provisions of the KDCP which is informed by various strategic policy documents. A majority of the contentions can be summarised as relating to urban design and town planning matters, with heritage and traffic contentions also being the subject of expert evidence.

Planning and Urban Design

The Court was assisted by expert evidence from Clare Swan (planning) and Nigel Dickson (urban design) for the applicant, together with Gabriel Morrish (urban design) and Heather Warton (planning) for the respondent. All four experts conferred to produce the joint expert report, and gave concurrent evidence.
For the purposes of concurrent evidence, the parties agreed that the issues could be summarised as follows:

Development outcomes sought by the KLEP, the KDCP and the UDS
Setbacks (Clause 10 of the KDCP)
Overshadowing (Clause 22 of the KDCP)
Height, bulk and scale
Relationships to public domain
Internal amenity

Development outcomes sought by the LEP and DCP/UDS

In broad terms, Ms Morrish and Ms Warton contend that the proposal is an overdevelopment of a small site that is excessive in its bulk and scale, and is compromised by the attributes of a site that is bounded on three sides, adjacent to a heritage item, and accessed via a narrow laneway making safe vehicular access difficult at a location that is designated to be a pedestrian link in the future. Furthermore, the constraints of the site are such that the proposal can not conform to provisions in the KDCP related to setbacks, landscaping, and overshadowing.
Ms Swan and Mr Dickson maintain the proposal is a considered response that is tailored to the site and that, in the face of 'flux and confusion' regarding the adoption of conflicting controls in Council's KDCP, the applicant has relied appropriately on the requirements gazetted in the KLEP, the result of which is a proposal that is well within the FSR and maximum building height, and complies with the requirements of SEPP65, and the ADG.
Ms Warton states that the KLEP was the result of a simple conversion to the new template LEP, and was not informed by research or studies at the time. As a result, the FSR contained in the LEP was gazetted in a 'blanket fashion'. The form and massing studies later undertaken as part of the UDS, and described as Design Options 1-3, provided alternatives for Council to consider with a range of FSR controls and Gross Floor Areas resulting.
Ms Morrish advised that she was close to the development of the UDS which had its origins in concerns held by Council as to unintended consequences arising from how the development controls contained in the LEP were being realised in development applications, and that this explains why Design Option 3 of the UDS is very selective about where taller built form is located.
Mr Dickson considers the form and massing studies contained in Design Option 3 to be crude, and to contain undesirable outcomes such as long unarticulated 'slab' buildings, is inconsistent in how it represents known heritage items in the vicinity, and is inferior to the guidance on siting buildings such as that found in diagrams contained in the ADG, on which he prefers to rely.
To Ms Morrish, the overdevelopment arises from a failure of the respondent to purchase the adjacent heritage item and possibly the property at No 4 Victor Street to create a larger development site, and to create a development site frontage of 60m in accordance with objectives and controls found at Clause 7 of the KDCP. Further, failure to incorporate the heritage item in a larger development site fails to achieve the objectives and controls found in Clause 8 of the KDCP, which sets out objectives and controls in relation to heritage.
The applicant advised that attempts had been made to purchase the heritage item. Whether this is the case or not, it is evident from the site view that even if properties at Nos 2-4 Gladstone Street, and from Nos 4-10 Victor Street were amalgamated, the central position of the heritage item within a larger allotment, and the limited curtilage available on the site of the heritage item would likely fail to provide a benefit to a proponent in development terms. Arguably, the isolating effect is the reverse of that suggested by Ms Morrish, given the particular location of the heritage item acts to prevent the subject site from joining with any sites to form a development site as intended by Clause 7, Control (iii) of the KDCP.
The site is not subject to an amalgamation requirement, according to Table 1 in Clause 7, Control (vi) of the KDCP and so the applicant is not required to submit to Council justification to vary the amalgamation pattern requirements. However in the event that a site cannot achieve a 60m frontage, Clause 7 Control (iii) requires: "Where sites do not have a minimum site frontage of 60m the development would need to ensure the design outcomes/built form which meets the Vision and the Desired Future Urban Design Principles for the Precinct as well as the built form objectives outlined in this Part of the DCP. In considering the development Council will take into account the proportions of the building - the podium width compared to the width of the tower and the appearance from the public domain."
Consistency with the Vision, urban design principles, and built form objectives in the KDCP was a focus of expert evidence, and informs the merit assessment of the proposed development which I consider further from [74]. However, as the relationship between the KLEP, and the KDCP is a consistent point of contention between the parties, I will now consider the submissions from parties on the weight that should be given to the KDCP, UDS, and the 3D massing model found in 'Design Option 3' which informed the development of the KDCP.
Part E4, Clause 4 of the KDCP cites the UDS and 'Design Option 3' in explicit terms: "The Kogarah North Urban Design Strategy was endorsed by Council on 27 November 2017. … The principles have been included in this part of the DCP. Design Option 3 was endorsed by Council at its meeting held 1 May 2017. Design Option 3 places an emphasis on creating a built form that complies with the ADG and defines a four storey street wall character. This option places emphasis on transitioning between the scale of the heritage items and the new built form with reduced heights and increased setbacks adjacent to the heritage items. This option also takes into account the height of buildings so as to minimise their overshadowing impact to existing and future open space areas."
Part E4, Clause 2 of the KDCP provides that Part E4 takes precedence, except where SEPP65 and the ADG apply: "Development within the Precinct must comply with all other applicable Parts of the DCP. If there is a discrepancy between Part E4 and other Parts of the DCP the controls in Part E4 will always prevail. … The [SEPP65] and the ADG prevail over Council's DCP."
The applicant submits that the adoption of 'Design Option 3' by Council resulted in a FSR of 2.52:1 in the KNP area, which is 37% lower than the FSR provided by the LEP and which is simply too great a difference, and so places at risk the housing outcomes envisaged by the LEP when considered alongside population targets published by government at the time, and now. Consequently, the development outcomes contemplated by the UDS and the KDCP are inconsistent or incompatible with the KLEP.
Mr To, in submissions, considers s 3.43(5) of the EPA Act of particular relevance where a DCP is inconsistent or incompatible: A provision of a development control plan (whenever made) has no effect to the extent that: (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument.
The applicant asserts that the Council and their experts rely inappropriately on the 3D massing model shown in 'Design Option 3' of the UDS, but which is not found in the KDCP, as the basis for their claim that lower scale development is required around the future Town Common. In that event, the applicant submits that the Court would be in error to interpret the provisions of the KDCP by reference to parts of a strategic document that were not adopted in the KDCP itself.
For reasons explained later, I am satisfied that while the 3D massing model is not found as an illustration in the KDCP, controls appear to be derived from it that act to constrain development to the west of the open space where the site is located, in order to promote a consistent alignment to the street frontage, and to preserve solar access to the future Town Common, through provisions relating to setback and solar access.
The respondent submits that, as found by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] 136 LGERA 254, a DCP is a detailed planning document which reflects a council's expectation for parts of its area, the provisions of a DCP must be consistent with the provisions of a relevant LEP, and it may operate to confine the intensity of development otherwise permitted by a LEP.
The question as essentially put by the applicant is whether the controls in the KDCP are so at variance from the numerical controls in the KLEP as to be inconsistent or incompatible, and so should have no effect.
The Court is required by s 4.15(1)(a)(iii) of the EPA Act to consider the provisions of a development control plan when determining a development that is the subject of a development application. Further guidance is found at s 4.15(3A) such that, where a development application complies with standards contained in a development control plan, a consent authority may not require more onerous standards, and where a development application does not comply with standards found in a development control plan, requires a consent authority to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
The KDCP arose from research and studies undertaken by Council, prior to its public exhibition in September - October 2017, and its adoption in December 2017. Part E4 contains statements on the Vision and urban design principles, objectives and controls that apply to developments that will shape the future of the KNP. For this reason, I consider the KDCP to be a relevant consideration, while I regard the UDS and the more recent PDP as strategic policy documents of the Council and so apply less weight accordingly.

Setbacks

Guidance on relevant setbacks is found in tables contained in Part E4, Clause 10(xii) and (xiii) of the KDCP. The experts do not agree on whether the site has a frontage to Railway Parade North, which would enliven the provisions of Table 2. If the site is found not to have a frontage to Railway Parade North, then the provisions in Table 3 apply. The experts agree that the site is visible from Railway Parade North.
Ms Warton is of the view that the dimension of the site boundary that can be said to 'front' Railway Parade North is so minimal as to be incidental, and should not be regarded as a frontage for the purposes of determining the setback applicable to the whole of the site, which also includes more substantial frontages to Gladstone Street and Victor Street which are both identified in Figure 10 of the DCP as 'special streets'.
Mr Dickson provides a diagram at Figure 22 of the joint expert report to illustrate the exposure of the long dimension of the site to Railway Parade North due to the geometry of its intersection with Gladstone Street. As the intersection is not at right angles, but at a distinctly obtuse angle when viewed in plan, combined with a localised widening at the intersection, the southern boundary of the site is shown in almost full view of Railway Parade North which, in Mr Dickson's view, results in the site having a stronger relationship to Railway Parade North than Gladstone Street. The applicant also identified this characteristic at the site view, and notes that Figure 10 of the KDCP, which is relied on by Ms Warton, states its purpose is to define the location and treatment of driveways fronting Highway/Fringe Streets when referenced in the KDCP.
Ms Morrish regards the setback provisions in Clause 10(xii) Table 2 and (xiii) Table 3 to be intended to be applied in a manner that encourages consistency along a street to reinforce that street's particular character, and so should be sensibly applied to building frontages according to a site's position in a precinct. To view them otherwise could allow a large site to be consolidated with only a minimal frontage to, for example, the Pacific Highway so as to enjoy the reduced setbacks and higher yield across the site which may more substantially adjoin low density residential development along another frontage more suited to a deeper setback.
Ms Swan is of the view that setback controls found in the KDCP cannot 'mix and match' but once identified, apply to the whole of the site. This means that regardless of the dimension of the frontage to Railway Parade North, the frontage would enliven the setbacks found in Table 2 for the whole of the site, notwithstanding the setback to Victor Street is in response to the adjacent heritage item.
I prefer Ms Morrish's interpretation that the setbacks may be considered to apply according to orientation and street character. However, I accept that the site does have a frontage to Railway Parade North, and I adopt the applicant's submission that Clause 10 of the KDCP does not dictate a minimum dimension required to trigger the application of Table 2. Additionally, whatever the site's frontage to Railway Parade North in cadastral terms, it is clear that the full length of the southern boundary of the site is exposed to, and visible from the wide thoroughfare of Railway Parade North, and for a substantial distance of travel in the direction of the Kogarah railway station.
For this reason, I agree and accept the characterisation of the site by Mr Dickson in Figure 22 of the joint expert report that due to the distinct geometry of the intersection, the southern boundary of the site is exposed to view and to traffic volumes on Railway Parade North, and does not have built form opposite on Gladstone Street with which to relate and, due to the open space of the playing fields, will also 'stand alone'. In my view, applying the setbacks in Table 2 to the Gladstone Street frontage achieves the objectives of the section which include: to define the street edge, and ensure building heights are appropriate for the street widths and functions to ensure a comfortable urban scale of development.
Having established this, I note the proposal still does not conform to the setbacks found in Table 2 of the KDCP at Gladstone Street. As highlighted by Mr Dickson at Figure 24 of the joint expert report, the podium encroaches on the setbacks permitted by Table 2 along the southern boundary at Level 1 and 2. Mr Dickson argues, and I agree, that this is reasonable as it does not alter the built form that would otherwise be allowed if the encroachment were wintergardens, and because the podium is only 3 stories, and not 4 stories as is permitted by Table 2 and as already stated.
In relation to the setback of the podium and tower form to the northern boundary, adjoining the heritage item, the experts generally defer to the heritage experts. However, Mr Dickson as the architect for the proposal explained that his approach was to first consider Section 3F-1 of the ADG which has the objective of ensuring adequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy, and had regard to the design criteria which provides for a setback of 6m for the first 4 storeys, then 9m setback for 5-8 stories, and 12m setback for 9 stories or more.
Next, Mr Dickson advised that he considered the design guidance contained in 3F-1 which states that a stepped façade should be avoided so as not to cause a 'ziggurat appearance'. Furthermore, Mr Dickson considered that the adjacent heritage item was on the northern boundary, and so not subject to overshadowing, had only one window to the boundary, and that a range of design strategies meant that deep soil planting would provide the visual privacy intended by Section 3F-1.
Ms Morrish is of the strong view that the setback of the tower from the heritage item is not adequate and not does not conform to the urban design principles found in the DCP, most relevantly: "29. Relate to heritage buildings with appropriate setbacks, low rise podiums and other scale breaking devices in adjacent development 30. Future development adjacent to heritage listed buildings must be sympathetic to the heritage item, particularly in terms of scale and siting and provide adequate curtilage and side setbacks from heritage sites and a transition in height from the heritage items."
In her evidence, Ms Morrish regards the provisions of Part 2F Building Separation of the ADG as most relevant when considering the appropriate setback of the tower from the heritage item to the north, noting that the proposal does not comply above the 4th floor.
Ms Swan accepts the ADG requires increased separation when development is adjacent to a different, low density zone, but notes that the neighbouring sites are within the same zone, and considers it relevant that the heritage item is unlikely to ever be developed, has a single window addressing the proposed development, and that the close proximity of the heritage item to the boundary means that it imposes an inequitable share of the setback requirement on the proposed development.
The cover note to Part 2F of the ADG, preferred by Ms Morrish, explains the application of the section is intended to "support the strategic planning process when preparing planning controls". The cover note to Part 3F Visual Privacy of the ADG, preferred by Mr Dickson, states: "This part provides guidance on the design and configuration of apartment development at a site scale. Objectives, design criteria and design guidance outline how to relate to the immediate context, consider the interface to neighbours and the public domain, achieve quality open spaces and maximise residential amenity. It is to be used during the design process and in the preparation and assessment of development applications."
Part 2F and Objective 3F-1 both contain advice that the preferred building separation at ground level is 6m from a boundary, and is at least 9m between habitable rooms when above 4 storeys, and up to 12m for buildings that are 9 storeys or more. The experts generally agree that the 6m setback at ground level is acceptable. I now consider why the tower form should not be set back 9m, or more, from the northern boundary.
Relevant design guidance found in Objective 3F-1 advises that: "New development should be located and oriented to maximise visual privacy between buildings on site and for neighbouring buildings. Design solutions include: • Site layout and building orientation to minimise privacy impacts (see also section 3B Orientation) • On sloping sites, apartments on different levels have appropriate visual separation distances (see figure 3F.4)"
Given the location of the site is to the south of the heritage item, the provisions of Objectives 3B-1 and 3B-2 are satisfied.
Objectives 3F-1 and 3F-2 contain design guidance that further elaborates on the setbacks expressed in tabular form. Figure 3F.6 contains diagrams showing alternative setbacks based on the use and proximity of uses in adjoining, and neighbouring, buildings. As the intent is to maintain visual privacy between apartments that may be neighbouring, I consider it relevant that the heritage item, which is on a site of around 18m in width, will form a buffer between the proposed development on this site, and future development to the north of the heritage item, resulting in greater building separation distances than the minimum required by Part 2 or the Objectives 3F-1 and 3F-2 of the ADG.
On this basis, I am satisfied that the objectives of Part 3 of the ADG which seek to ensure visual privacy, will be achieved by the setback of the tower in the proposal.

Overshadowing

The KDCP, at Clause 22 contains controls to limit the extent of overshadowing to the open space opposite the site on Victor Street. The open space is currently used by Kogarah High School as a playing field, and is identified as a future town common in Figure 9 of the KDCP. The Controls at Clause 22 are in the following terms: "(i) Create and protect solar access plane to Victor Street to minimise overshadowing to Kogarah High School's primary open space. (ii) Provide a lower built form to Railway Parade to minimise overshadowing to St George Girls High School's primary open space. (iii) Provide solar access to at least 60% of the existing playing field at 3pm on June 21st. Demonstrate how the remaining sites along Railway Parade can be development to a similar density while achieving the solar access requirements. ..."
The applicant prepared shadow analysis drawings (Ex B) showing shadow cast by the proposed development, and hypothetical future development along Railway Parade as required by Clause 22, Control (iii). The applicant considers the proposed development to substantially comply, with only a 10-minute period between 2.50pm and 3pm when the open space receives less than the 60% required by the control. However, these calculations are based on the total area of open space, including the playing field and school car park.
Figure 9 of the KDCP is titled "Pedestrian links and open space", and shows the area bounded by Victoria Street, Gladstone Street, Victor Street and Palmerston Street considered as a whole, and not separately as a car park and a grassed area as they are currently configured. It refers to a future use as a Town Common, while the control in the KDCP takes care to refer to the 'existing playing field' as the area to be protected from overshadowing at a particular time.
The applicant calculates 42.2% of the existing playing field receives sunlight at 3pm on 21 June, when the proposed development and hypothetical future development are considered together. This is less than the 60% required by the control. A total of 18.3% of the playing field is in shadow cast from the proposed development at this time.
Ms Morrish considers the proposed development and the hypothetical future development should equitably share the load on over shadowing, however I note that the proposed development would need to cast no shadow on the playing field at this time in order to satisfy the numerical control found in Clause 22 Control (iii). Put another way, the total shadow cast by the hypothetical future development along Victor Street and Railway Parade casts the maximum shadow allowed by the control of 40% at 3pm on 21 June.
Having determined at [38] that the provisions of a DCP must be consistent with the provisions of a relevant LEP, it is on this point that the DCP appears at its most inconsistent from the FSR and height controls found in the LEP. Pursuant to s 4.15(3A)(b) of the EPA Act, it is my view that, notwithstanding the non-compliance with Control (iii), the proposal takes very reasonable steps to maximise solar access to private open space, and to communal open space and living rooms within the development, and provides some modest alternative solutions to achieve the objective of the provisions, which seek to retain reasonable levels of solar access to the neighbouring properties and the public domain, through the stepping down of the tower form at its top, and the lower 3-storey podium at the base.
Due to the footprint of the tower form itself, and the site being located to the south west of the playing field, the shadow cast is relatively narrow and likely to move quickly across the playing field. In view of this, I am satisfied that the overshadowing of the playing field by the proposed development does not, of itself, exceed the control, and is not a reason to refuse.

Height, bulk and scale

The parties concede that there was substantial overlap between the issues underlying the height, bulk and scale, and the matters already considered by the experts under Development outcomes sought by the KLEP, the KDCP and the UDS.
The respondent submits that the proposal does not satisfy cl 28(2) of SEPP65 as it does not adequately address the design quality principles found in Sch 1 of SEPP65, including, but not exhaustively:

Principle No.1: Context and neighbourhood character, which requires a development to respond and contribute to its context.
Principle No.2: Built Form and Scale, which requires a development to achieve a height and scale appropriate to the existing or desired future character of the street, and surrounding buildings.
Principle No.3: Density which requires a development to achieve a high level of amenity for resident and each apartment resulting in a density appropriate to the site and its context.
Principle No.5: Landscape, which requires that a development operate as an integrated sustainable system resulting in attractive developments with good amenity.
Principle No.6: Amenity, which requires a development to positively influence internal and external amenity for residents and neighbours.

The applicant asserts that the Council and its experts seek to impose a form of development on the site which is inconsistent or incompatible with the KLEP, while the respondent considers the proposed development is inconsistent with the objectives in cl 4.3 of the KLEP, and that a lower building would better address the objectives of the building height control. Further, the controls found in the KDCP related to setback, overshadowing, solar access and heritage are evidence of Design Option 3 being adopted as a preferred development outcome by the Council, and the proper functioning of the KDCP as a detailed planning document which reflects the council's expectation for parts of its area.
Ms Morrish reiterated that the constraints of the site itself mean that the proposed development compromises on every provision of the KDCP and that as a result, the site is not suited to a tower form. Further, the respondent submits that the FSR control in the KLEP sets a maximum and not one as a right.
To assist in the assessment of height, bulk and scale, the respondent considers the planning principle set out at [32] in Veloshin v Randwick Council [2007] NSWLEC 428 to be relevant, and which first states that the appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to attributes such as maximum height, floor space ratio, site coverage and setbacks.
It is agreed that the proposal complies with the FSR and height controls in the KLEP, and where the parties dispute the extent of site coverage, it is by reference to deep soil planting and setbacks which, in the case of the podium, results in a bulk that is equivalent to a complying bulk, as stated at [49]. The tests then outlined by the principle ask whether an existing or future character is envisaged by the controls. As stated at [7], Council accepts that the character of the KNP will change and so can be said to anticipate a future character.
As stated earlier, the KDCP and the experts place a focus on whether the proposal achieves the Vision and the Desired Future Urban Design Principles for the precinct as well as the built form objectives, particularly as the site does not achieve a 60m frontage as preferred by Clause 7, Control (iii). In general terms, I consider the proposal to be consistent with the stated vision for apartment buildings which seeks to deliver a diversity of heights but maintain a human scale built form at street level, creating a balance between increased housing opportunities, public and private amenity and an active and safe pedestrian environment.
The 3-storey podium is agreed by the heritage experts to be a successful response to the adjacent heritage item, and by virtue of it being lower than the permitted 4 storey street wall envisaged by the KDCP, it can be said to be of even greater human scale.
The urban design principles found at Part E4, Clause 5 contain 44 principles that relate to development applications in the KNP. The principles are qualitative in nature, and do not contain numerical controls. The respondent asserts that the proposal fails to achieve a number of the principles related to:

Street frontage
Built Form
Heritage
Pedestrian Movement and amenity

After considering all of the evidence before me, I am satisfied that the proposal is generally consistent with the principles contained in Clause 5 and where departures from the principles may occur is not a reason to refuse the application. In arriving at this conclusion, I have considered Clause 7, Control (iii) of the KDCP which provides for the consent authority to consider the proportions of the building, including the podium width compared to the width of the tower and the appearance from the public domain.
Unlike the proposal contained in the Class 1 application, the proposal now before the Court features a podium that is, in general, supported by the experts as an appropriate response to streetscape and heritage considerations when viewed from the public domain. The alignment of the podium to the heritage item has the support of the heritage experts, and is consistent with the urban design principles which seek to create a human scale by tempering the edges of the building at the street. The screen devices, set clear of glazing and between blade columns, can be said to provide articulated facades and in a manner that address the public domain with major facades creating good spatial definition of streets and parks.
The tower form is set back on all sides of the podium, and differs in material and finish. The architect relies on what is termed 'scale-breaking devices' on the tower, including a modest cornice between the podium and tower on the northern elevation, glazed wintergardens located on the corners of the tower, louvred screens, horizontal articulation and a deep vertical recess. The applicant submits that a further scale-breaking device is found in the lateral separation, or distance between the heritage item and the proposed development. A distance of around 8.5m will be visible from the public domain of Victor Street, measured from the side elevation of the front portion of the heritage item, to the northern elevation of the podium. Between, deep soil planting is proposed to provide a further buffer.

Relationship to the public domain

The heritage experts agreed that the boundary fence to Gladstone Street and Victor Street could be modified to more closely replicate the detailing evident on the fence at the Victor Street frontage to the adjacent heritage item. The extent of modifications was agreed, and it was further agreed that the amendment could be reflected in conditions of consent.

Internal amenity

In her evidence, Ms Morrish identifies a number of instances where she asserts the internal layout and amenity of apartments fail to comply with the ADG. While the applicant submits that these instances should not be determinative, I note that the provisions of the SEPP and ADG take precedence over the provisions of the KDCP and so I regard the matters as relevant.
The instances include:

Poor amenity to ground floor apartments which rely on high level windows and privacy screens, and which are likely to suffer from adverse acoustic impacts
Insufficiently sized kitchens to some apartments

The architect, Mr Dickson, is of the view that the matters raised are reasonable, have been incorporated in to the amended plans, or are reasonable to be addressed through conditions.
Clause 87 of the ISEPP requires that the Court must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that certain levels are not exceeded in the bedrooms at certain times of the day. I am satisfied that appropriate provision will be made in the selection of glazing type to achieve the required acoustic performance.

Heritage

The experts agree that the contentions relating to heritage arise due to the adjacent heritage item, 'Lindhurst Gallery' and may be distilled to include;

Treatment of the public domain interface, defined as the proposed fence to the perimeter of the site.
Podium
Height, bulk and scale

There is general agreement between the heritage experts that the perimeter fence is acceptable if it were to adopt the detailing on the original palisade fence evident at the street frontage to the adjacent heritage item, including the removal of intermediate masonry pillars. It is agreed that pillars located at the main entry to Victor Street are acceptable to make the entry legible.
The experts also agree that the form and scale of the podium is acceptable as it takes sufficient architectural cues from the heritage item, such as the mid-span posts evident in the verandah, and so complements the adjoining building and does not need to match the precise height of the eaves line of the adjacent heritage item.
To Mr Philips, a defining attribute of the heritage item is that it was designed as a semi-detached dwelling, with largely blank side walls, which indicates that an adjoining building within close proximity was always anticipated. As a result, Mr Philips is of the view that the proposed development is setback an acceptable distance, and is designed to reduce the perception of its width and bulk. Furthermore, the applicant submits that the setback from the heritage item and from Victor Street opens up a sightline to the heritage item that is consistent with the aims of the heritage provisions in the KDCP.
In contrast, Mr McDonald considers the side setback of the proposed development to the boundary with the heritage item should be determined by the provisions of the ADG, and that regardless of the podium setback, the tower above is integral and is not further setback. As a result, Mr McDonald considers the proposal to present a 10-storey high shear wall to the heritage item which has the effect of 'towering over' the heritage item on a site that he describes as very exposed and very visible when viewed from the public domain. Further, he considers the cumulative effect of future development in the vicinity has the potential to 'hem-in' the heritage item unless the lower scale of development on the site is adopted, in keeping with the 3D massing model shown in Figure 26 of the UDS. Mr McDonald's preference is for a development of no more than 6 stories in height.
Having regard to the provisions of Part E4 of the KDCP, I consider it relevant that Figure 9 of the KDCP foreshadows a future use of the heritage item as a Community Facility, with the potential to provide a link of some sort between the landscaped and activated Victor Street, shown in Section 4.1.2 Public Open Spaces of the PDP and a pedestrian-friendly public domain in Railway Lane.
As development proceeds in the KNP, the result is likely to see the heritage item, 'Lindhurst Gallery' set in a context of, and surrounded by, taller buildings in the vicinity, including at Railway Parade North and to the north and south of the site. Future development to the north of the heritage item is likely to be further setback, and stepped in height, as its orientation will require consideration of overshadowing, which is likely to result in a landscaped curtilage around the heritage item as shown on Figure 3 of Part E4 of the KDCP, 'Heritage adjacent items'.

Traffic and car parking

The Court was assisted by Mr Ken Hollyoak, for the applicant, and Mr Craig McLaren for the respondent, who conferred prior to the hearing in relation to on-site car parking, and the implications for traffic in surrounding streets.
The experts did not initially agree on the speed of the proposed car lift which is an important component in estimating the overall service time, and which determines the likely waiting period experienced by users of the lift. In turn, this assists in calculating the number of users waiting for the lift, and so determines the number of waiting bays required in the proposed development.
Prior to the hearing, the experts conferred at a site in Pitt Street, Sydney which had a car lift manufactured by Liftronic. A representative of the manufacturer attended the site visit and provided the experts with additional information on its performance. As a result of this visit, the experts agreed that a lift speed of 0.5m/s was reasonable to assume. The resulting service time was agreed to be acceptable, and it was agreed that one waiting bay was sufficient. The respondent remains of the view that a car lift is not suited to the proposed development, and especially not for use by visitors who may be unfamiliar with its use.
During the expert evidence, the applicant tendered a detailed plan of swept paths for vehicles using Railway Lane (Ex J). The swept paths show that a vehicle exiting the site, and a vehicle entering Railway Lane could collide. However the experts are agreed that the risk of conflict between vehicles entering and leaving the site is low due to a concrete splitter island proposed at the entry to Railway Lane which serves to direct vehicles travelling in opposite directions away from the path of the other, and a central median to Gladstone Street to prevent right entry into and exit from Railway Lane.
In order to achieve two-way travel in Railway Lane, the applicant proposes a land dedication as shown in Exhibit J. The experts explained that the surface of the dedication must be bitumen, with a concrete kerb and gutter to separate vehicular traffic from pedestrians travelling along a path that was initially shown 600mm wide. During their evidence, the experts agreed that a 900mm minimum wide path would be more appropriate. Whatever the width of the path, Exhibit J is in conflict with the landscape plan in Exhibit C which shows 'Turfstone', a permeable paving product through which grass can grow, and no footpath. On the final day of the hearing, the applicant tendered Exhibit L, comprising conditions of consent jointly agreed by the experts and providing for, among other things, a footpath of between 900mm and 1200mm.
The applicant submits that the dedication does not put at risk the future intended works to convert Railway Lane to a pedestrian link between Gladstone Street and Palmerston Street, and that the land dedication would be suited to deep soil planting in the future should this work proceed. The respondent regards the dedication, in the form of road widening, as evidence of the applicant externalising the negative impacts of over development on the public domain, beyond the site.
The parties agree that Railway Lane is intended to become a pedestrian link in the future, will continue to provide access for vehicles car parking and may include the planting of trees in the public domain. This is supported by Table 5, Part E4, Clause 13 of the KDCP which requires land dedication at a property on Palmerston Street to connect to Railway Parade North via Railway Lane. Further, Section 4.5 of the PDP proposes that laneways will become one-way shared zones, subject to approval by the traffic committee.
The applicant submits that the land dedication shown in Exhibit J is not incompatible with the future use of Railway Lane as a one-way shared zone, and that future works to the lane to deliver the planting, paving and roadside activity hubs depicted in Section 4.5 of the PDP and could include deep soil planting in this location.
Resolving the issue of traffic flow in Railway Lane is clearly integral to development intended to be facilitated by the KLEP, KDCP and to the implementation of Council's PDP. Given the likelihood of development in the immediate vicinity of Railway Lane, and the requirement for vehicular access from side streets and laneways at Clause 18, Control (ix) of the KDCP, I consider the traffic solution in Exhibit J to be imperfect but I also accept the applicant's submission that the dedication of land does not put at risk, and may even assist, the delivery of a revitalised pedestrian and vehicular link in the future.
In coming to this opinion of satisfaction, the Court relies on the evidence of the expert's that the likelihood of conflict between vehicles entering and exiting Railway Lane is so low as to represent a reasonable risk, and that Railway Lane does not currently cater for two-way traffic, and so the widening of the laneway at its entry and exit may be of benefit.

Conditions requiring Contributions

The respondent submits that the appeal should be dismissed, but in the alternative, seeks additional monetary contributions for streetscape and public domain works by way of condition.
Condition 8 (Ex 6) is titled 'Section 7.11 Development Contributions', and includes a table comprising contributions totalling a sum of $510,208.20. Condition 9 is titled 'Section 7.13 Development Contribution' and states that an additional contribution of $15,000 for each apartment is payable, totalling $435,000.
In essence, the respondent submits that the relevant Contribution Plan does not adequately reflect the estimated cost of streetscape and public domain works as it was first adopted by Council in June 1999, and was last updated in July 2006.
The relevant Contribution Plan is Section 94 Contribution Plan No. 8 - Kogarah Town Centre (Ex 8 (KCP8)) which describes streetscape and public domain works to the value of $14,157,879, including GST, as determined in 2001. This amount was updated in the first quarter of 2005 with additional costs amounting to $2,189,808, and resulting in a total of $16,347,687.
At this time, the website of the Georges River Council lists KCP8 as current and the parties do not dispute that the KCP8 is the current plan.
In support of the sum contained in Condition 9, the respondent submits Preliminary Cost Plan No. 1 Rev 4 (Ex 7) dated 18 December 2018 which identifies a cost of $42,802,195 for the proposed public domain works in Kogarah North.
The respondent outlines a method that expresses the estimate of costs found in Exhibit 7 as being a factor of 2.618 times greater than the cost assumed in the KCP8. Further calculations are provided to apportion the cost according to the number of new residents expected to occupy the proposed development. A total contribution of $934,053.73 is said to apply to the development, according to the respondent.
Mr To for the applicant maintains the additional contribution found in Condition 9 is greater than that derived from the KCP8, is 'double dipping', and notes that following the adoption of Amendment 2 to the KLEP, a vast increase in population is forecast for the precinct, resulting in a greater number of people contributing to costs which should reflect in a lower per person, per unit cost.
The applicant accepts that the applicable contributions may be more than the figures contained in the KCP8, but submits that the amount should be calculated based on a simple indexation.
I accept and agree with Mr To's submission that the purpose of deriving contributions by reference to a Contributions Plan is so that there is a transparent way of determining the monetary value of contributions which supports principled decision making.
Clause 7.11 of the EPA Act permits a consent authority to require a contribution towards the provision or improvement of amenities or services in the following terms: (1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned. ...
Clause 7.13 requires that the contribution imposed under cl 7.11 should be determined by reference to a contributions plan, even if a consent authority, other than a Council, imposes a condition for a contribution that varies from the contributions plans, as follows: (1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). (2) However, in the case of a consent authority other than a council: (a) the consent authority may impose a condition under section 7.11 or 7.12 even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but (b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out. ...
The ground on which the respondent seeks to impose Condition 9 is founded on the omission from the KCP8 of an updated estimate for streetscape and public domain works envisaged in the KNP and documented in the PDP, and which can only now be derived by reference to Exhibit 7.
However, a close read of Exhibit 7 and Exhibit 8 reveals that it is not only the monetary value but also the scope of work that differs between the two documents.
KCP8 refers to a 'Public Domain Improvements Plan' for the scope of works and as the basis of calculations found at [105]. This Public Domain Improvements Plan is not found in Appendix A of Exhibit 8 before the Court, nor in the KCP8 found on the Council website, but its scope is summarised in Appendix B of Exhibit 8.
Appendix B of Exhibit 8 excludes some works later shown in the PDP while the estimate contained in Exhibit 7 states, at Section 3 Basis of Cost Estimate, that it includes those works. Put simply, the scope of public domain works in Exhibit 7 and Exhibit 8 do not match up. As I note at [11], Council states their intent to prepare a new contributions plan, which will presumably address this misalignment in price and scope.
Streetscape and public domain works are clearly intended to be for the shared benefit of existing and future residents, workers and visitors to the KNP. The public domain works contained in the PDP have been adopted by Council. However in my view, it is relevant that the Council has not adopted the updated cost estimate in its contributions plan.
Clause 7.13(1) provides that a consent authority may impose a condition if it is of a kind allowed by, and is determined in accordance with, a contributions plan. For the reasons already stated, I do not consider Condition 9 to be of a kind allowed by, or one that has been determined in accordance with, a contributions plan because it is derived by reference to a cost estimate that is separate from, and not referenced by Council's published contributions plan, and which would appear to be based on an alternative scope of work that is yet to be adopted by Council in its Contributions Plan.

Conclusion

In my view, the characteristics of this site are unique in the KNP. Three dominant site frontages to differing street and laneway contexts contributes to a highly exposed site adjacent to a railway corridor, a heritage item, and a playing field.
The adjacent heritage item presents a genuine barrier to achieving Council's stated objective in the KDCP for sites to amalgamate in order to achieve the density envisaged by the planning controls.
The proposal is consistent with the objectives of the R4 zone, and complies with the development standards found in the KLEP in terms of its height, and floor space ratio.
Clause 30(2) of SEPP65 requires that I must be satisfied that the development demonstrates adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the ADG for the relevant design criteria. It is my view, on the basis of the evidence before me, that the objectives of the ADG are skilfully applied in the proposed development, and in a manner that provides greater amenity than the minimum required in the ADG.
The question is whether the external impacts of the proposal are acceptable to the amenity of neighbouring properties and the public domain. For the reasons already stated, I consider the setbacks largely comply with the controls found in the DCP, and where they do not, they are consistent with the objectives of the relevant provisions, with no additional bulk or overshadowing resulting from the non-compliance.
The setbacks contribute to a bulk, height and scale that is, in my view, acceptable in its particular context, including when viewed in the context of the heritage item which will inevitably be seen in the context of surrounding taller buildings in the future. While the provisions of cl 5.10 of the KLEP apply in respect to a heritage item, and require me to consider the effect of proposed development on heritage significance, I do not consider the effects to the proposed development to be adverse or detrimental.
Perhaps the greatest impact on the public domain is found in the land dedication for road widening in Railway Lane. Significant development is envisaged in this part of the KNP fronting Railway Parade North and Palmerston Street. In considering the merits of the proposed development on the subject site, I have considered the substantial upgrade that will be required to Railway Lane in order to achieve vehicular and pedestrian access to future development, in the form that is proposed in the PDP.
Dedicating this land to Council free of cost provides, in my view, a greater means by which Council may achieve the upgrade of the public domain in Railway Lane in the future, and so is in the public interest.

Orders

The orders of the Court are: 1. Leave is granted to the applicant to amend the application for development consent, by relying on the documentation referenced in condition 1 of Annexure 'A'; 2. The appeal is upheld; 3. Development consent is granted for Development Application DA 2017/0519 for the demolition of two existing single dwellings and various freestanding outbuildings and the construction of a 9 and 10 storey residential apartment development containing 29 apartments, and a ground level retail space, with basement car parking for 33 cars, subject to the conditions at annexure 'A'; 4. The exhibits are returned, except for Exhibits A, B, C, J, and 8. ………………………. Tim Horton Commissioner of the Court Annexure A (537 KB, pdf)

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: 11 April 2019

(2001) 115 LGERA 373

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Cases Cited (3)

Cited By (1)