Wilbec Chatswood Pty Ltd v Willoughby City Council

Wilbec Chatswood Pty Ltd v Willoughby City Council - [2024] NSWLEC 1234 - NSWLEC 2024 case summary — Zoe

[6]

Current planning instruments

From 30 June 2023, and after a considerable project of strategic planning (Ex 1 pars 16-34F), a substantial revision to WLEP came into effect. The revised instrument is described as Willoughby Local Environment Plan 2012 (Amendment No. 34). I will henceforth refer to this revised instrument as Amended WLEP, and for convenience of description only I will refer to the instrument applicable at DA lodgment date as Unamended WLEP. As advised in COS (par 22) and I think not in dispute, Amended WLEP imposes the following controls on the subject site: "a) zoning of MU1 Mixed Use, in which residential accommodation is prohibited. However, as the Site is located in Area 8 on the Special Provisions Map, development for the purposes of residential flat buildings is permissible with consent if the ground floor is used for non-residential purposes only, and at least 17 per cent of the gross floor area of the building will be used for non-residential purposes (cl 2.5 and Sched 1, cl 27); b) height of building limit of 90m (cl 4.3); c) floor space ratio of 6:1 (cl 4.4); d) a minimum lot size of 1,200m2 for development for the purposes of mixed use development (cl 6.16); e) an active street frontage control (cl 6.7) (which applies because the site is now identified as "Active Street Frontages" on the Active Street Frontages Map under the Amended WLEP), pursuant to which development consent must not be granted to the erection of a building unless the consent authority is satisfied that the building will have an "active street frontage" (as defined in cl 6.7); f) an affordable housing control (cl 6.8) (which applies because the Site is now located in Area 3 on the Affordable Housing Map under the Amended WLEP), pursuant to which the consent authority may impose an affordable housing condition, which may require a developer to make an affordable housing contribution (by way of a dedication of floor space or the payment of a monetary contribution) equivalent to 10 per cent of the gross floor area of the residential component of the development (cl 6.8); and g) a design excellence control (cl 6.23) (which applies because the site is now located in Area 5 on the Special Provisions Map under the Amended WLEP), pursuant to which the consent authority must not grant consent to any development involving inter alia the erection of a new building unless the consent authority considers that the development exhibits design excellence (cl 6.23(3)), and the design of the development is the winner of a competitive design process held in relation to the development (cl 6.23(6))."
From 4 October 2023, Willoughby Development Control Plan 2023 (WDCP 2023) commenced operation. WDCP 2023 does not contain any savings provision and, according to COS (par 25), had the effect of repealing WDCP 2006.

[8]

Lining up the proposal's features with respect to both Unamended and Amended WLEP

Council has summarised what it sees in regard to compliance or otherwise of the proposal with both Unamended WLEP at lodgement and Amended WLEP. First in regard to Unamended WLEP, Council submits as follows (COS pars 28-32): "28. The proposed development is permissible with consent in the R4 zone. 29. The proposed development breaches the 34m height of building control in clause 4.3, being 90 metres in height ( by an exceedance of 56 metres). The applicant relies on a clause 4.6 request for this contravention: see Exhibit A, Tab 6. 30. The proposed development breaches the 1.7:1 FSR control in clause 4.4. The applicant relies on a clause 4.6 request for this contravention: see Exhibits J and K. 31. The proposed development complies with the 1,100m2 minimum lot size control in clause 6.10. 32. Under the WLEP (as unamended), the consent authority does not have any power to impose an affordable housing condition as a condition of consent to the proposed development because the subject site is not within Area 3 or Area 9 on the Special Provisions Map."
Turning to Amended WLEP, Council submits as follows (COS pars 34-40): 34. The proposed development would be permissible with consent in the MU1 zone, as an additional permitted use pursuant to clause 2.5 and Schedule 1, item 27. 35. The proposed development would comply with the 90m height of building control in clause 4.3. 36. The proposed development would comply with the 6:1 FSR control in clause 4.4, with an FSR of 5.28:1. The calculation of FSR relies on the "bonus" FSR conferred by clause 4.4(2A) of Amended WLEP, which provides that part of the floor area of a building which is used for community facilities is taken not to be part of the gross floor area of the building for determining the maximum floor space ratio of the building: see Exhibit K, pp 4-8. 37. The proposed development would not comply with the 1,200m2 minimum lot size control in clause 6.16. To that end, the applicant relies on a "notional" clause 4.6 request in which it argues that any contravention of this development standard would be justified: see Exhibit A, Tab 8. 38. The proposed development does not include any ground floor commercial premises, and therefore would not comply with the active street frontage control in clause 6.7, which requires that all ground floor premises facing the street are used for commercial purposes. Rather, the proposed development provides for community facilities on part of the ground floor of the development. 39. The proposed development does not include any dedicated floor space for affordable housing, and nor can any condition be imposed requiring the developer to pay any monetary contribution for affordable housing (see paragraph 32 above), and therefore would not provide an affordable housing contribution which would comply with clause 6.8. 40. The proposed development has not been subject to a competitive design process or chosen as the winner of that process. It therefore would not comply with the design excellence requirements under clause 6.23.
I will turn to related development control plan provisions as relevant below.

[9]

Issues in dispute

Some seventeen of the contentions nominated in Ex 1 remain in dispute. There is value in synthesising the contentions for this evaluation, which I do below, bringing the contentions down to three substantive topics and a more general topic addressing certain other matters of detail. I introduce the topics as: 1. Desired future character and design excellence 2. Unamended WLEP contraventions in relation to FSR and building height 3. Affordable housing 4. Other matters.
The first two topics are concerned with built form, mindful of the contextual setting, and are very related. The topics are intended to address Contentions 3, 4, 7, 12, and 15, but also Contentions 6(c) and 9 (relating to landscape deep soil zones), 14 ("inconsistency with minimum site area controls"), 16 (relating to "active street frontage" requirements) and 20 ("site suitability").
The third topic, affordable housing (Contention 18), is less design-related at least as far as this particular proposal is concerned. It is an important topic nonetheless in regard to strategic planning ambitions of Council and related to wider metropolitan concerns with this topic.
Contentions 1, 2, 11B, 24(a) and 24(b), where not otherwise covered previously, are dealt with in my fourth topic.
For me, Contention 21 ("public interest") essentially relates to the consideration of all of the preceding topics.
Here I can also note that those providing expert evidence in relation to the contested issues are as follows: Name Expertise Appointed by O Stanish Urban design Applicant M Zanardo Urban design Council A Longley Landscape Applicant C Mackenzie Landscape and arboriculture Council J Mead Town planning Applicant P Wells Town planning Council D Trinder Waste management Applicant K Morgan Waste management Council P Oitmaa Hydrogeology and groundwater Applicant C Stephenson Hydrogeology and groundwater Council

[13]

Claude Street frontage including landscaping and deep soil area

While the experts were happy with the Archer Street frontage on streetscape and landscape character grounds, there were concerns on the part of Council in regard to Claude Street, to which the site has a 18.29m street frontage. There was some agreement that Part D 4.4.2(a) of WDCP 2023, requiring a minimum 27m frontage width does not directly apply to the proposal (as Part D applies to commercial development and the proposal does not include commercial development). But WDCP 2023 Part B 4.3.2 would apply and also requires a 27m frontage. The purpose of the control is: … to ensure vehicles can enter and leave a site in a forward direction, and adequate landscaped areas are provided along the streetscape.
Mr Wells, Ms McKenzie and Dr Zenardo all saw this as a significant failing of the proposal. It was not site ingress and egress that was the concern, it was in relation to landscape provision along the streetscape. Dr Zenardo linked, what he saw as a landscape response deficiency along Claude Street to other policy provisions (Ex 10 par 266): … the street frontage of 18.29m does not meet this control and this directly contributes to not meeting the objective to provide an adequate landscaped area, particularly along the streetscape of Claude Street. Other relevant objectives that are not met include WDCP 2023 Part B 2.1.2 objective (a) that "site area and lot dimensions should ensure adequate provision is made for…. sufficient area for landscaping, including deep soil zones that can support tree planting", WDCP 2023 Part B 2.1.5 objective (b) that "landscaped areas should include deep soil zones located primarily along the street frontage…" and WDCP 2023 Part B 2.1.5 objective (c) that "landscaped areas should… plant trees with wide canopies within the deep soil zones…" These aspects are not considered to meet the desired future character as anticipated by WDCP 2023 for this type of development. MZ deals further with street frontage at Key Area 7 with regard to site area.
Dr Zenardo also linked what he saw as a deficient response in Claude Street to the site's non-compliance with WDCP 2023 provisions relating to site area. More particularly WDCP 2023 Part L 4.3.1(c) requires Amended WLEP's site area control of 1200m2 to be met. The site area at 1115m2 does not do so.
A factor here was what was seen to be a significant deficiency in deep soil area at the western boundary when ADG requirements were taken into account. The result is that landscape areas along Claude Street are, according to Ms McKenzie, insufficient to support medium, large or even small canopy trees. According to Ms McKenzie (Ex 5 par 18): The footprint of basement, driveway and paved areas substantially reduce the opportunity to provide any meaningful landscaping to the Claude Street frontage.
Mr Longley highlighted the capacity for root zone expansion beyond areas qualifying as deep soil zones on the site. Mr Stanish highlighted to a higher degree of precision the actual ADG requirements which open the door to alternative solutions, in regard to deep soil provision, in CBD settings.

[15]

Design excellence

Amended WLEP includes at its cl 6.23 various provisions relating to the topic of design excellence which would apply to the proposal were it to have been lodged after the amendment. Provisions of note include subcl 6.23(3) which require a positive finding of satisfaction on the part of the consent authority that the development exhibits design excellence, and subcll 6.23(6)-(10) relating to requirements for a "competitive design process held in relation to the development" (although a consent authority has discretion in relation to this latter matter). The proposal is not subject to a design excellence clause under Unamended WLEP (Ex 10 pars 334-335). Mindful of my commentary at [13], the abovementioned provisions of cl 6.23 of Amended WLEP are a consideration in the evaluation of the DA, rather than a statutory pre-requisite.
Dr Zenardo argues that the proposal does not exhibit design excellence, working through the relevant particulars of cl 6.23 (4)-(5) of Amended WLEP (Ex 10 pars 328-333). I think it is fair to say that most of Dr Zenardo's points criticising the proposal relate to the resolution of the Claude Street frontage. As outlined above, this relates to the suggested domination of the proposed driveway at this frontage and perceived inadequacies in regard to deep soil and landscaping, and a lack of an active street frontage (at least as defined).
Mr Stanish also works through particulars of cl 6.23 (4)-(5) of Amended WLEP and finds the opposite to Dr Zenardo. An explanation of various building elements is provided and Mr Stanish argues that "the design will undoubtedly set a new standard for architectural quality in this part of Chatswood" (Ex 10 Table 1 p 76).
Mr Wells argues that (Ex 10 par 338): The consent authority cannot be satisfied that the Proposed Development exhibits design excellence having regard to the matters in clause 6.23(4) and (5), because the Amended DA has not been the subject of an architectural design competition under clause 6.23(6)(b) of the Amended WLEP.

[16]

Consideration

In the broad, I am more persuaded by the applicant's case in this topic. The key question mark is in regard to the Claude Street presentation. When I consider the Claude Street setting as a whole, I am satisfied with the proposal's response to site context. That is, in regard to response to both constraints (such as site width) and opportunities (such as through provision of the through site link). The through site link is an important positive design response which will help activate Claude Street, both in regard to the site but also for other forthcoming developments on other sites fronting Claude Street. The proposal brings significant gains on that front.
When I turn to the site width constraint, and the suggested landscaping and deep soil deficiencies, something notable to me during the site inspection was the significant landscape presence in Claude Street already. That is, streetside planting which have a positive streetscape presentation effect (and were not otherwise threatened by the proposal). The proposal's landscape deficiency in regard to the Claude Street setback, which has been addressed to the extent practical in the landscape proposal for this frontage, is positively offset by what already exists.
While the proposal does not meet the Amended WLEP requirements for active street frontage, as defined in that instrument, it seems quite clear that the through site link and ground level entrance to the proposed community facilities which front both of the street frontages, as proposed in the amended plans, can help bring about significant pedestrian traffic along both Archer and Claude Streets in accordance with the aims of cl 6.7 of Amended WLEP (Ex E Drawing A03.00 Rev H).
The result, in my view, would be that the Claude Street presentation, to the lay observer, would be quite well aligned with the desired future character. While a better landscape response would be available were the site width greater, I am not so convinced that this factor is sufficient to, say, require the site to amalgamate with other sites before it can move forward with the intended manifestation of the essentials of the desired high density character in this locality.
On the topic of design excellence, my impression from the urban design and planning experts was that the proposed built form, generally, was a high calibre example of a slender tower. It was more the detail of Claude Street that was problematic (Mr Wells had a different opinion in regard to his views on the southern side boundary setback). Having made these findings in regard to Claude Street I generally agree with Mr Stanish's conclusions that the building would exhibit design excellence (Ex 10 par 322).
When consider the wider strategic planning intent for the locality, I see the proposed built form as well aligned, so far as that goes. I consider the question of affordable housing later in the judgement.

[22]

Considering building height standard objectives

Firstly, I will consider the objectives at cl 4.3(1) of Unamended WLEP relating to building height, which are reproduced as follows: (a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape, (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.
In relation to Objective 4.3(1)(a), I do note, and as put in the written requests, the test here is one of being 'in harmony", rather than have some equivalence with "the surrounding buildings and the streetscape". In harmony would essentially require the proposed development to provide an agreeable or pleasing combination with that which exists. Given that the proposed built form can be understood as a desirable outcome in terms of current planning ambitions for this part of Chatswood, and noting that the same objective applies to the current 90m control, I can find that the development is consistent with this objective.
In relation to Objective 4.3(1)(b) and 4.3(1)(d), my interpretation of the advice of the majority of the planning and design experts is that the proposal does minimise impacts on adjoining or nearby properties in relation to disruption of views, loss of privacy, overshadowing and visual intrusion. I accept this position and find the that the development is consistent with this objective.
It seems to me the main point of dispute in expert evidence relating to Objective 4.3(1)(c) is the presentation of the proposal to Claude Street, and particularly at the streetscape level. I have drawn my own conclusions into this matter above. I would understand the proposal as of high visual quality when viewed from the nominated areas. The proposal is consistent with this objective.
It seems to me Objective 4.3(1)(e) and 4.3(1)(f), are examples of those objectives best understood as explanatory of the purpose of the building height standard (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 (Baron) at [49]). These objectives are already achieved through the prescription of the height standard itself, and its adoption in relation to floor space and landscaping restrictions. To the extent relevant, the development seems to me to be consistent with these objectives in that it is consistent with the development potential of the land and the desired future character.
The proposal can be seen to be consistent with Objective 4.3(1)(g) and 4.3(1)(h), which concern land use and built form relationships between different areas within Chatswood, given that these objectives also apply to the Amended WLEP building height standard, with which the proposal complies.

[23]

Considering FSR development standard objectives

I turn to the objectives of cl 4.4(1) of Unamended WLEP relating to FSR, which are as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (e) to permit higher density development at transport nodal points, (f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, (j) to encourage the consolidation of certain land for redevelopment, (k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses.
When I compared these objectives to those applying under Amended WLEP, I found no differences in the two sets of objectives.
In relation to Objective 4.4(1)(a) and 4.4(1)(d), I note strategic planning work has now identified that there is a capacity for development of the bulk and scale as now proposed. I consider the zone objectives below, finding positively in that regard. The proposal is consistent with these objectives.
In relation to Objective 4.4(1)(b), previous concerns relating to what was interpreted as an oversupply of private parking have been addressed. The proposal is consistent with this objective in recognition of its high quality public transport accessibility.
When considering the building height, I have already made a positive finding of consistency in relation to Objectives 4.4(1)(c), 4.4(1)(g) and 4.4(1)(i)
Objectives 4.4(1)(e) and 4.4(1)(k) are explanatory of the purpose of the FSR standard (Baron at [49]) and are already achieved.
While not directly relevant, the proposal is not at odds with Objective 4.4(1)(f) and would be seen as helping conserve the compactness of the city centre of Chatswood, or Objective 4.4(1)(j) as it is not reasonably seen as otherwise prejudicing site consolidation possibilities.
In relation to Objective 4.4(1)(h), I accept the advice in the written request that the proposal would not overshadow public open space areas. The proposal provides its own communal open space, and a public through site link to assist public movement through Chatswood which seems to me related to the intentions behind this objective, which I see the proposal as generally consistent with.

[26]

Affordable housing

Were it to apply to this DA, cl 6.8 of Amended WLEP would empower the consent authority to impose an affordable housing condition in the grant of any consent. While (the applicable) Unamended WLEP includes affordable housing provisions under its cl 6.8, the site is outside the areas affected by such provisions.
Nonetheless the applicant has made an offer to enter into a planning agreement with Council towards the provision of affordable housing. The letter of offer, as finally put, was dated 28 February 2024 and involves a monetary contribution of $5,863,548, payable prior to the issue of the Construction Certificate. I am aware that a previous letter of offer dated 1 November 2023 involved a lesser monetary contribution which I understand was rejected by Council.
Within COS (pars 55-62), Council outlined a number of concerns in relation to affordable housing as an evaluation consideration in the appeal. The conclusion at par 62 was that one of the reasons for refusing the DA is because it did not provide affordable housing. As I understood it a point raised at this time was that a consent authority lacked power to impose a condition relating to affordable housing under Unamended WLEP and this was one reason that the applicant's offer was not acceptable. Council also drew my attention to IPM Holdings Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1593 (IPM) (at [95]-[101], [102]-[116] and [117]-[126]), where the findings of Dixon SC went against a proposed planning agreement offer by an applicant.
It was the applicant's position that powers under s 7.4(2)(b) of the EPA Act provided an avenue for a planning agreement to be entered into relating to affordable housing. In addition reference was made to the provisions at s 4.15(1)(iii) of the EPA Act, which in part provides that a matter for consideration in the evaluation of a development application is "any draft planning agreement that a developer has offered to enter into under section 7.4". As put by the applicant, I must take into account the fact that the applicant has offered to enter into the agreement as per the letter of offer dated 28 February 2024.
The significant increase in the offer between 1 November 2023 and 28 February 2024 is notable. While it is not necessary for me to have looked at this with great precision, I understood the applicant to argue the current letter of offer (28 February 2024) as lining up, essentially, with the 10% affordable housing rate which Council now seeks for this area under Amended WLEP. The previous letter of offer referenced a 6% rate which had an application in some areas of Chatswood under Unamended WLEP.
In its Outline of Supplementary Submissions (COSS) filed on 5 March 2024, Council did not indicate a rejection of the offer, nor did it directly indicate support for the offer. There was an indication of a dispute about whether a planning agreement should be imposed as a deferred commencement condition (as Council proposes) or whether it should be payable prior to the issue of a construction certificate (as the applicant proposes). Council argued that Council's officers do not have delegated authority to enter into the planning agreement. Rather, that it would need to be accepted by Council's elected councillors. A planning agreement has been entered into in accordance with section 7.4 of the Environmental Planning and Assessment Act 1979, and registered on title for Lot SP4747, in the terms of the offer made by Wilbec Chatswood Pty Ltd dated 28 February 2024 (being the Applicant) to enter into a planning agreement with Council in connection with DA-2022/240 in relation to the making of a monetary contribution towards affordable housing calculated using a mapped percentage of 10%, in accordance with clause 6.8(5) and (7) of the Willoughby Local Environmental Plan 2012, as at the date this consent is granted the parties to the planning agreement are to include the owner of the site.

[27]

Consideration

In this instance, I believe the circumstances are distinguishable from IPM. In IPM, it was found that the proposed planning agreement was "not authorised under the EPA Act": at [126]. Among other things, in that case it was found that the proposed planning agreement "would not be used or applied for a "public purpose" within the meaning of subs 7.4(1) and (2) (of the EPA Act). There were a number of additional complications to the planning agreement proposed in IPM. There is no doubt that, insofar as the planning agreement question before me is concerned, there is a public purpose afoot with its direct relationship with s 7.4(2)(b) of the EPA Act. None of the other complications, as presenting in IPM, arise.
It is my finding that were a consent to be granted, it would be entirely appropriate to impose a condition consistent with the 28 February 2024 letter of offer from the applicant to enter into a planning agreement. The offer has been made; and to impose such a condition would be within power consistent with the provisions of s 7.7(3) of the EPA Act.
It seems to me the point of s 4.15(1)(iii) of the EPA Act is to link such offers (provided they are authorised under the EPA Act) to the DA evaluation process. It is notable that Mr Wells and Mr Zenardo agreed that it made sense that the significant building height and FSR uplift which the proposal sought (aligning with the desired future character under Amended WLEP provisions) should be accompanied by other public benefits such as affordable housing (Ex 10 par 135). It seems to me that acceptance of the 28 February 2024 offer would be in the public interest and bring the proposal more wholly in line with the planning intentions for the area. That is not to say, on way or the other, that a positive determination of the appeal for the applicant is contingent on the planning agreement, per se. This is not a decision I need to make in the circumstances. However, it is clear that strictly speaking there is no obligation or power to provide for affordable housing under the environmental planning instrument applying to the DA (ie Unamended WLEP).
In Class 1 appeals of this kind, the evaluative decision (to impose a condition consistent with the 28 February 2024 offer) is to be made directly by the Court, exercising the function of Council pursuant to s 39(2) of the LEC Act. It is noteworthy that, while a decision in this matter to impose a condition requiring a planning agreement to be entered into binds the applicant. It does not, of itself, bind the Council (as the "planning authority" under s 7.4(1) of the EPA Act) to enter into the planning agreement. The entering into such an agreement by a planning authority is "a separate and distinct function" and not within the Court's powers when it exercises the function of Council in relation to Class 1 appeals (Progress & Securities Building Pty Limited v Burwood Council & Anor (No 2) (Progress & Securities) [2008] NSWLEC 135 [31]). However, "the fact that a condition may not be performed other than with the cooperation of a third party does not make it invalid" (Progress & Securities [28]). While I am aware of the possibility of Council deciding not to enter into the planning agreement, I am not convinced that this is a likely event. In the role I have in this matter it seems to me entirely appropriate to include a condition allowing such an agreement to be made.
While I accept Council's point that it will be a matter for elected Council to enter into the actual agreement in due course (COSS par 4), this would be the case whether or not the condition applied as a deferred commencement matter or otherwise. I am not convinced this reasoning justifies inclusion as the condition as a deferred commencement matter and see no reason that the applicant's approach to this condition not be adopted.

[28]

Community facility use

The plans (Ex E) show almost all of the ground, first and second levels and the eastern side of the third level to be taken up as "community facility".
Unamended WLEP defines community facility as follows: community facility means a building or place - (a) owned or controlled by a public authority or non-profit community organisation, and (b) used for the physical, social, cultural or intellectual development or welfare of the community, but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.
Council contended that (COSS par 20): … in the absence of more specific information regarding the nature of the proposed use of the ""community facilities", at the time of determination of the appeal, the Court cannot be satisfied that the proposed use is correctly characterised as a "community facility" as defined in the WLEP, and cannot carry out the evaluation required by section 4.15 of the EP&A Act.
The Council saw it as essential to know the identity of the entity which is to "own or control" the designated building or place, in order to determine whether that satisfied the requirement for the owner or controller of a "community facility" as defined in the WLEP. Council cited the following authorities in support: Cranbrook School v Woollahra Municipal Council (2005) 144 LGERA 21 and Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 at [80]-[82]. The applicant essentially argued that nomination of the use was sufficient.
It is very rare to have ownership or control as a pre-requisite in land use definitions. As far as Unamended WLEP is concerned (and one might think generally with respect to the standard instrument), it was only in the definition of community facility that the term "owned or controlled" was used based on my expeditious word search. I do also note the definition of research station includes a requirement for operation by a "public authority".
While I appreciate the authorities provided by Council as an effort to assist me, I did not see the referenced findings to be on point. They seemed to me more concerned about the definition of an entity which may operate a community facility rather than whether it was proper to nominate a use for community facility in a DA without specifying particulars.
It seems to me the baseline position is that proffered by the applicant. That is to say, it is regular practice to nominate various land uses in plans without full knowledge of who might own or operate that land use; and with no particular concern about that. Nonetheless, if there is a consent to operate a shop (in accordance with the approved plans) and the area is taken over by an industrial use, then enforcement provisions can come into play. I cannot see much different here. While it will be important for the areas earmarked as community facility to be owned or controlled by a public authority or non-profit community organisation that, and the other related requirements, can be made good in the reasonable course of time as for any use, or challenged if necessary in accordance with normal enforcement provisions. Draft condition 11, agreed by the applicant, required the details relating to the future community facilities to be provided prior to the issue of a construction certificate. Draft condition 128 requires a general commercial office fit out for the community facility areas and draft condition 129 seem to adequately address Council's concern about impact assessment for future uses within the designated spaces.
I am satisfied that the lack of nomination of particulars of occupation of proposed community facility areas does not hinder my evaluation of the DA, and find for the applicant in regard to this issue.

[34]

Consideration

The matter of landowner's consent was given consideration in Stokes v Waverley Council (No 2) [2019] NSWLEC 174, and I paraphrase from [69]-[70], as follows: 69 It follows that landowner's consent from adjoining owners is required where a development application proposes work on adjoining land. 70 For the purpose of landowner's consent to a development application, there is a distinction between the works the subject of the relevant development application, and off-site works that may be carried out pursuant to conditions of consent: s 4.17(1)(f) of the EPA Act.
When I look closely at the DA there is an indication of at least a potential requirement for ground anchoring involving neighbouring land in the "Douglas Partners Report on Geotechnical Investigation" (Ex D Tab 9 folio 248). The report does note the need to obtain permission from neighbouring landowners. There was no evidence that this permission has been obtained at the point of the hearing. What I took to be the applicant's response to this during the hearing was the evidence brought to bear from Mr Oitmaa that alternatives were available. Here, for me, the applicant was arguing against the need for owner's consent in relation to the suggestions of works on adjoining land in Ex D Tab 9.
Nevertheless, mindful of s 4.17(1)(f) of the EPA Act, it seems to me that the effect of adopting the applicant's suggested condition would be to essentially open the door to the approach indicated in the Douglas Partners Report (including the requirement to obtain owner's consent remains). The Council's approach would seem to preclude rock anchors without modification to the development consent at least as far as my jurisdiction is concerned.
Generally, these matters relate to construction details which will come to a resolution further down the construction track. In the circumstances and on balance, there seems no good reason to not adopt the applicant's approach which merely opens the door to what might be a preferred construction option. This "preferred construction option" would not just relate to the perception of those undertaking the project. There is a need for a positive decision by the adjoining owners to allow such works. Here I think it necessary that I assume the adjoining owners are, or can be, fully informed of their powers to refuse and that a decision in their best interests would be available to them. I mention here that I have no particular understanding, and there were no submissions in relation to, any other statutory procedures relating to this question of neighbouring land access.

[68]

In the broad, I am more persuaded by the applicant's case in this topic. The key question mark is in regard to the Claude Street presentation. When I consider the Claude Street setting as a whole, I am satisfied with the proposal's response to site context. That is, in regard to response to both constraints (such as site width) and opportunities (such as through provision of the through site link). The through site link is an important positive design response which will help activate Claude Street, both in regard to the site but also for other forthcoming developments on other sites fronting Claude Street. The proposal brings significant gains on that front.
When I turn to the site width constraint, and the suggested landscaping and deep soil deficiencies, something notable to me during the site inspection was the significant landscape presence in Claude Street already. That is, streetside planting which have a positive streetscape presentation effect (and were not otherwise threatened by the proposal). The proposal's landscape deficiency in regard to the Claude Street setback, which has been addressed to the extent practical in the landscape proposal for this frontage, is positively offset by what already exists.
While the proposal does not meet the Amended WLEP requirements for active street frontage, as defined in that instrument, it seems quite clear that the through site link and ground level entrance to the proposed community facilities which front both of the street frontages, as proposed in the amended plans, can help bring about significant pedestrian traffic along both Archer and Claude Streets in accordance with the aims of cl 6.7 of Amended WLEP (Ex E Drawing A03.00 Rev H).
The result, in my view, would be that the Claude Street presentation, to the lay observer, would be quite well aligned with the desired future character. While a better landscape response would be available were the site width greater, I am not so convinced that this factor is sufficient to, say, require the site to amalgamate with other sites before it can move forward with the intended manifestation of the essentials of the desired high density character in this locality.
On the topic of design excellence, my impression from the urban design and planning experts was that the proposed built form, generally, was a high calibre example of a slender tower. It was more the detail of Claude Street that was problematic (Mr Wells had a different opinion in regard to his views on the southern side boundary setback). Having made these findings in regard to Claude Street I generally agree with Mr Stanish's conclusions that the building would exhibit design excellence (Ex 10 par 322).
When consider the wider strategic planning intent for the locality, I see the proposed built form as well aligned, so far as that goes. I consider the question of affordable housing later in the judgement.

[87]

In relation to Objective 4.3(1)(a), I do note, and as put in the written requests, the test here is one of being 'in harmony", rather than have some equivalence with "the surrounding buildings and the streetscape". In harmony would essentially require the proposed development to provide an agreeable or pleasing combination with that which exists. Given that the proposed built form can be understood as a desirable outcome in terms of current planning ambitions for this part of Chatswood, and noting that the same objective applies to the current 90m control, I can find that the development is consistent with this objective.
In relation to Objective 4.3(1)(b) and 4.3(1)(d), my interpretation of the advice of the majority of the planning and design experts is that the proposal does minimise impacts on adjoining or nearby properties in relation to disruption of views, loss of privacy, overshadowing and visual intrusion. I accept this position and find the that the development is consistent with this objective.
It seems to me the main point of dispute in expert evidence relating to Objective 4.3(1)(c) is the presentation of the proposal to Claude Street, and particularly at the streetscape level. I have drawn my own conclusions into this matter above. I would understand the proposal as of high visual quality when viewed from the nominated areas. The proposal is consistent with this objective.
It seems to me Objective 4.3(1)(e) and 4.3(1)(f), are examples of those objectives best understood as explanatory of the purpose of the building height standard (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 (Baron) at [49]). These objectives are already achieved through the prescription of the height standard itself, and its adoption in relation to floor space and landscaping restrictions. To the extent relevant, the development seems to me to be consistent with these objectives in that it is consistent with the development potential of the land and the desired future character.
The proposal can be seen to be consistent with Objective 4.3(1)(g) and 4.3(1)(h), which concern land use and built form relationships between different areas within Chatswood, given that these objectives also apply to the Amended WLEP building height standard, with which the proposal complies.

[110]

Were it to apply to this DA, cl 6.8 of Amended WLEP would empower the consent authority to impose an affordable housing condition in the grant of any consent. While (the applicable) Unamended WLEP includes affordable housing provisions under its cl 6.8, the site is outside the areas affected by such provisions.
Nonetheless the applicant has made an offer to enter into a planning agreement with Council towards the provision of affordable housing. The letter of offer, as finally put, was dated 28 February 2024 and involves a monetary contribution of $5,863,548, payable prior to the issue of the Construction Certificate. I am aware that a previous letter of offer dated 1 November 2023 involved a lesser monetary contribution which I understand was rejected by Council.
Within COS (pars 55-62), Council outlined a number of concerns in relation to affordable housing as an evaluation consideration in the appeal. The conclusion at par 62 was that one of the reasons for refusing the DA is because it did not provide affordable housing. As I understood it a point raised at this time was that a consent authority lacked power to impose a condition relating to affordable housing under Unamended WLEP and this was one reason that the applicant's offer was not acceptable. Council also drew my attention to IPM Holdings Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1593 (IPM) (at [95]-[101], [102]-[116] and [117]-[126]), where the findings of Dixon SC went against a proposed planning agreement offer by an applicant.
It was the applicant's position that powers under s 7.4(2)(b) of the EPA Act provided an avenue for a planning agreement to be entered into relating to affordable housing. In addition reference was made to the provisions at s 4.15(1)(iii) of the EPA Act, which in part provides that a matter for consideration in the evaluation of a development application is "any draft planning agreement that a developer has offered to enter into under section 7.4". As put by the applicant, I must take into account the fact that the applicant has offered to enter into the agreement as per the letter of offer dated 28 February 2024.
The significant increase in the offer between 1 November 2023 and 28 February 2024 is notable. While it is not necessary for me to have looked at this with great precision, I understood the applicant to argue the current letter of offer (28 February 2024) as lining up, essentially, with the 10% affordable housing rate which Council now seeks for this area under Amended WLEP. The previous letter of offer referenced a 6% rate which had an application in some areas of Chatswood under Unamended WLEP.
In its Outline of Supplementary Submissions (COSS) filed on 5 March 2024, Council did not indicate a rejection of the offer, nor did it directly indicate support for the offer. There was an indication of a dispute about whether a planning agreement should be imposed as a deferred commencement condition (as Council proposes) or whether it should be payable prior to the issue of a construction certificate (as the applicant proposes). Council argued that Council's officers do not have delegated authority to enter into the planning agreement. Rather, that it would need to be accepted by Council's elected councillors.

[112]

In this instance, I believe the circumstances are distinguishable from IPM. In IPM, it was found that the proposed planning agreement was "not authorised under the EPA Act": at [126]. Among other things, in that case it was found that the proposed planning agreement "would not be used or applied for a "public purpose" within the meaning of subs 7.4(1) and (2) (of the EPA Act). There were a number of additional complications to the planning agreement proposed in IPM. There is no doubt that, insofar as the planning agreement question before me is concerned, there is a public purpose afoot with its direct relationship with s 7.4(2)(b) of the EPA Act. None of the other complications, as presenting in IPM, arise.
It is my finding that were a consent to be granted, it would be entirely appropriate to impose a condition consistent with the 28 February 2024 letter of offer from the applicant to enter into a planning agreement. The offer has been made; and to impose such a condition would be within power consistent with the provisions of s 7.7(3) of the EPA Act.
It seems to me the point of s 4.15(1)(iii) of the EPA Act is to link such offers (provided they are authorised under the EPA Act) to the DA evaluation process. It is notable that Mr Wells and Mr Zenardo agreed that it made sense that the significant building height and FSR uplift which the proposal sought (aligning with the desired future character under Amended WLEP provisions) should be accompanied by other public benefits such as affordable housing (Ex 10 par 135). It seems to me that acceptance of the 28 February 2024 offer would be in the public interest and bring the proposal more wholly in line with the planning intentions for the area. That is not to say, on way or the other, that a positive determination of the appeal for the applicant is contingent on the planning agreement, per se. This is not a decision I need to make in the circumstances. However, it is clear that strictly speaking there is no obligation or power to provide for affordable housing under the environmental planning instrument applying to the DA (ie Unamended WLEP).
In Class 1 appeals of this kind, the evaluative decision (to impose a condition consistent with the 28 February 2024 offer) is to be made directly by the Court, exercising the function of Council pursuant to s 39(2) of the LEC Act. It is noteworthy that, while a decision in this matter to impose a condition requiring a planning agreement to be entered into binds the applicant. It does not, of itself, bind the Council (as the "planning authority" under s 7.4(1) of the EPA Act) to enter into the planning agreement. The entering into such an agreement by a planning authority is "a separate and distinct function" and not within the Court's powers when it exercises the function of Council in relation to Class 1 appeals (Progress & Securities Building Pty Limited v Burwood Council & Anor (No 2) (Progress & Securities) [2008] NSWLEC 135 [31]). However, "the fact that a condition may not be performed other than with the cooperation of a third party does not make it invalid" (Progress & Securities [28]). While I am aware of the possibility of Council deciding not to enter into the planning agreement, I am not convinced that this is a likely event. In the role I have in this matter it seems to me entirely appropriate to include a condition allowing such an agreement to be made.
While I accept Council's point that it will be a matter for elected Council to enter into the actual agreement in due course (COSS par 4), this would be the case whether or not the condition applied as a deferred commencement matter or otherwise. I am not convinced this reasoning justifies inclusion as the condition as a deferred commencement matter and see no reason that the applicant's approach to this condition not be adopted.

[118]

The Council saw it as essential to know the identity of the entity which is to "own or control" the designated building or place, in order to determine whether that satisfied the requirement for the owner or controller of a "community facility" as defined in the WLEP. Council cited the following authorities in support: Cranbrook School v Woollahra Municipal Council [2005] NSWLEC 716; (2005) 144 LGERA 21 and Cranbrook School v Woollahra Council [2006] NSWCA 155; 66 NSWLR 379 at [80]- [82]. The applicant essentially argued that nomination of the use was sufficient.
It is very rare to have ownership or control as a pre-requisite in land use definitions. As far as Unamended WLEP is concerned (and one might think generally with respect to the standard instrument), it was only in the definition of community facility that the term "owned or controlled" was used based on my expeditious word search. I do also note the definition of research station includes a requirement for operation by a "public authority".
While I appreciate the authorities provided by Council as an effort to assist me, I did not see the referenced findings to be on point. They seemed to me more concerned about the definition of an entity which may operate a community facility rather than whether it was proper to nominate a use for community facility in a DA without specifying particulars.
It seems to me the baseline position is that proffered by the applicant. That is to say, it is regular practice to nominate various land uses in plans without full knowledge of who might own or operate that land use; and with no particular concern about that. Nonetheless, if there is a consent to operate a shop (in accordance with the approved plans) and the area is taken over by an industrial use, then enforcement provisions can come into play. I cannot see much different here. While it will be important for the areas earmarked as community facility to be owned or controlled by a public authority or non-profit community organisation that, and the other related requirements, can be made good in the reasonable course of time as for any use, or challenged if necessary in accordance with normal enforcement provisions. Draft condition 11, agreed by the applicant, required the details relating to the future community facilities to be provided prior to the issue of a construction certificate. Draft condition 128 requires a general commercial office fit out for the community facility areas and draft condition 129 seem to adequately address Council's concern about impact assessment for future uses within the designated spaces.
I am satisfied that the lack of nomination of particulars of occupation of proposed community facility areas does not hinder my evaluation of the DA, and find for the applicant in regard to this issue.

[131]

When I look closely at the DA there is an indication of at least a potential requirement for ground anchoring involving neighbouring land in the "Douglas Partners Report on Geotechnical Investigation" (Ex D Tab 9 folio 248). The report does note the need to obtain permission from neighbouring landowners. There was no evidence that this permission has been obtained at the point of the hearing. What I took to be the applicant's response to this during the hearing was the evidence brought to bear from Mr Oitmaa that alternatives were available. Here, for me, the applicant was arguing against the need for owner's consent in relation to the suggestions of works on adjoining land in Ex D Tab 9.
Nevertheless, mindful of s 4.17(1)(f) of the EPA Act, it seems to me that the effect of adopting the applicant's suggested condition would be to essentially open the door to the approach indicated in the Douglas Partners Report (including the requirement to obtain owner's consent remains). The Council's approach would seem to preclude rock anchors without modification to the development consent at least as far as my jurisdiction is concerned.
Generally, these matters relate to construction details which will come to a resolution further down the construction track. In the circumstances and on balance, there seems no good reason to not adopt the applicant's approach which merely opens the door to what might be a preferred construction option. This "preferred construction option" would not just relate to the perception of those undertaking the project. There is a need for a positive decision by the adjoining owners to allow such works. Here I think it necessary that I assume the adjoining owners are, or can be, fully informed of their powers to refuse and that a decision in their best interests would be available to them. I mention here that I have no particular understanding, and there were no submissions in relation to, any other statutory procedures relating to this question of neighbouring land access.

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