Wilkie v Canterbury Bankstown Council

Land and Environment Court (NSW)|2018-07-20

Judgment

COMMISSIONER: This is an appeal against Canterbury Bankstown Council's deemed refusal of development application No. 390/2016. The development application (DA) seeks consent for a five storey mixed use development at 520 Canterbury Road, Campsie (the site).

The Proposal

Specifically the DA proposes:

Demolition of existing structures;
At the ground level: two commercial tenancies, residential and commercial garbage/recycling storage, residential lift lobby and stairwell, services, car park driveway access (to Charlotte Street which provides the site's eastern boundary)
Four levels of residential apartments (above the ground level)
Rooftop communal open space with access by lift and stairs
Three levels of basement car parking containing 26 car spaces comprising 18 x residential, 4 x visitor, 2 x accessible parking, 4 x commercial, 1 x courier/car wash bay;
External works and landscaping.

Planning framework

The site is located within the B5 Business Development zone under the LEP. The site is identified in the LEP's Key Sites Map as being subject to clause 1 of Schedule 1 of the LEP; and as such, the following requirement applies to the site: Development for the purpose of residential accommodation is permitted with development consent, but only as part of a mixed use development.
In turn, the development proposal is permissible with consent.
Clause 4.3 of the LEP provides for a maximum building height of 18 metres for the site. Relevantly, clause 5.6 then provides for variations to maximum building height standards for certain roof features of visual interest. The applicability of this clause is considered below.
Among other environmental planning instruments, State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65), and therefore the Apartment Design Guide, also applies to the proposal, as does Canterbury Development Control Plan 2012 (the DCP).

Amending Plans

In accordance with the Court's Practice Note "Class 1 Development Appeals" (Schedule 2), in an appeal the respondent (in this case Council) is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and are generally the point of focus in a hearing.
It is noted that in this matter there were no lay submissions, eg neighbour objections, presented as evidence (such matters can also become the subject of attention in a hearing - that is, beyond the issues nominated in the Statement of Facts and Contentions).

Original contentions

In this matter the Statement of Facts and Contentions before the Court (amended 11 July 2018 after leave granted for amended plans on 5 July 2018) brought forward three contentions: 1. Breach of the 18 metre height standard under the LEP (and the clause 4.6 submission not well founded). 2. The roof over the roof top communal open space does not satisfy the requirements of clause 5.6 of the LEP as an architectural roof feature. 3. Architectural Roof Feature - The roof over the roof top communal roof space is not integrated with the overall building design and adds unnecessary bulk and scale to the building.

Amendments to plans after joint conferencing by the experts

In this matter the following experts were appointed:

For Council: Deborah Laidlaw (planning), Peter Smith (urban design)
For the applicant: Garry Chapman (planning), Alan Cadogan (urban design).

At the conferencing between the experts, certain amendments were proposed to the development which the experts believed would address the three contentions. The amendments can be summarised as follows:

Lowering and flattening a discrete roof structure (from a previous higher and curved profile)
Redesign of the roof structure to integrate more successfully (according to the experts) with the lift overrun, and otherwise improve the design outcome
Redesign of the stairwell to leave the last flight to the roof level open (thus lowering its height below the 18m height control), and with "the top of this structure integrated with the parapet roof".

The planning and urban design experts indicated in their (individual) joint expert reports that agreement that these changes would mean that the contentions had been adequately addressed.
After the site view (at which no lay objectors provided evidence), the hearing commenced with the applicant seeking leave to rely on (further) amended plans which, I was advised, embodied the substance of the alternative which the experts saw as addressing the contentions.
Council objected to leave being granted to the applicant to rely on these amended plans. Council's argument, as I understood it being put by Ms McCulloch in representing her instructions to the Court, was that these amendments were not in accordance with Council's notion of what was required to satisfy its (Council's) concerns about the development. Ms McCulloch indicated that there was no other concern, in regard to potential prejudice caused to Council, were leave to be granted.
In response, Mr Staunton referenced the Court's "Conference of Expert Witnesses Policy", which he suggested encourages the experts to explore and identify alternatives (clause 26): In planning appeals, the experts should, within reason, discuss alternatives when addressing the matters in issue. Sketches providing alternative solutions and conditions of consent that address a particular issue are a legitimate part of such discussion. If a sketch or condition overcomes a particular issue, then that sketch or condition should be identified in the joint expert report.
Mr Staunton further referenced the Court's Practice Note "Class 1 Development Appeals", in particular cl 90 which provides: If an applicant for consent wishes to amend its development appeal application, including by amended plans, the applicant is to consolidate all such amendments (to avoid multiple requests to amend) and apply for leave as soon as reasonably possible and usually no later than 10 days after the facts or circumstances which prompted the application for leave came to the attention of the applicant. Examples of such facts or circumstances are the receipt of a report of a parties' single expert or a joint report of parties' experts recommending modification of the proposed development, which recommendation the applicant wishes to adopt in whole or part.
My understanding of the position having regard to the Court's Practice Note "Class 1 Development Appeals" (including cl 90) and its "Conference of Expert Witnesses Policy" (including cl 26), is that: 1. The Court is encouraging of experts, while involved in joint conferences, to reach agreement through exercising their independent professional judgment on what might be required to address contentions, including what amendments might be required to plans; and 2. It is a matter for the applicant whether it wishes to pursue the amendments proposed by the experts, including through seeking leave of the Court to rely on amended plans.
I granted leave for the applicant to rely on the amended plans resultant from the joint conferencing. In doing so I accepted the position of the experts that the amendments would address contentions which had been earlier raised, and were thus in accordance with the interests of promoting the just, quick and cost effective disposal of the proceedings. While I acknowledge the Council's viewpoint that the amendments were not in line with the changes it thought was necessary to the proposal, I do not find this persuasive. Rather I see the process, including the reliance on the independent professional judgment of the appointed experts to guide changes to address contentions, as in line with the Court's intended processes.

Issues

Given that there was no expert evidence in support of them, Council did not press its contentions in the hearing. I am mindful that the Court's function is associated with adjudicating contested issues, and in essence none are present here. Nonetheless I will briefly respond to the nominated contentions, as they in part take me to some jurisdictional "gates" relevant to the evaluation of the DA.

Breach of the height standard

The LEP provides for a maximum building height of 18 metres for the site. There is no doubt that the building exceeds this height. The experts indicate that the roof structure has a maximum height of some 19.3 m and thus a breach of some 1.3m. The proposal seeks the variation to the height control permissible under cl 5.6 of the LEP. Eligibility for cl 5.6 is central to the second contention, discussed below.

Satisfying clause 5.6 of the LEP

Clause 5.6 permits variations to maximum building height standards for certain roof features of visual interest. It provides as follows: 5.6 Architectural roof features (1) The objectives of this clause are as follows: (a) to permit variations to maximum building height standards for roof features of visual interest, (b) to ensure that roof features are decorative elements and that the majority of the roof is contained within the maximum building height standard. (2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent. (3) Development consent must not be granted to any such development unless the consent authority is satisfied that: (a) the architectural roof feature: (i) comprises a decorative element on the uppermost portion of a building, and (ii) is not an advertising structure, and (iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and (iv) will cause minimal overshadowing, and (b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.
It is cl 5.6(3) which establishes the criteria for exceedance of the LEP height control. The experts indicate that is a matter of fact that the proposal satisfies subclauses 3(a)(i), (ii) and (iii). It is also agreed that the majority of the roof is contained within the maximum building height standard in accordance with clause objective (subclause (1)(b)). I am also satisfied with each of these points from the plans.
In regard to overshadowing (subclause 3(a)(iv)), the view expressed by the planners was that the shadow of the previous roof structure was already largely confined to the roof of the building to the south, and as such it was thought unlikely that the amendment could cause other than "minimal" overshadowing (Exhibit 3). Ms Laidlaw requested shadow diagrams be prepared to demonstrate this. Shadow diagrams were prepared by the applicant after the joint conferencing but in time for the hearing (and form part of Exhibit D). During the site view, Ms Laidlaw indicated these shadow diagrams confirmed the view expressed by the planners in their expert report. The urban designers also are satisfied on this point. Viewing the plans and mindful of this advice of the experts, I am also satisfied that the roof structure would cause minimal overshadowing.
In regard to design integration of the roof feature and the lift overrun and stairs (subclause 3(b)), the planners agree that the lift overrun and stairs are adequately integrated into the design of the roof structure to satisfy subclause 3(b). The urban designers indicate that the amended proposal satisfies the objectives and requirements of subclause (3). I can note from the plans that there is a good level of integration between the roof feature and the lift overrun, minimising any adverse visual impact which might otherwise be a consequence of the lift overrun itself. I am influenced here by the urban designers view that what would present here is a "simple, minimal design top appropriately '(capping) off' the building", and "a flat, level form that integrates with the lift tower".
I have considered the provisions of cl 5.6 and am satisfied that the proposal satisfies the requirements as indicated above. As such and under cl 5.6(2) the proposal may be carried out notwithstanding the roof feature's exceedance of the LEP height control.

Point of disagreement between the urban design experts

I note that the joint report of the urban design experts included a comment from Mr Peter Smith which indicated a preference for the communal open space to be relocated from the roof to Level Four at the western side (ie the level below the roof, occupying a proposed two bedroom unit). Mr Smith thought this would allow the development to entirely comply with the envelope controls. He thought solar access would be satisfactory, albeit "not as good as in the roof top location". It was seen to provide "shelter from the wind" and "not result in any overshadowing".
Mr Cadogan's response to this was that "locating the communal open space on level 4 will likely lead to amenity impacts for the adjoining apartments, whereas locating it on the roof has fewer potential amenity impacts".
The Court's responsibility is to consider the application before it. In this instance there is no proposal to vary the proposal in accordance with the preference of Mr Smith. Mr Smith, in his input into the joint report by the urban design experts, has also indicated that the proposal which is before the Court adequately addresses Council's contentions.

Should the Court make an order for the payment of costs thrown away as a result of the amendments?

Upon the determination that the Court would grant leave for the applicant to rely on amended plans, the Council sought orders for the payment of costs thrown away as a result of the amendments. The applicant did not agree that a costs order should be made.
Section 8.18(3) of the Act makes provisions in regard to costs of this kind: If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent.
Ms McCulloch submitted that the amendments were not minor and had occupied "three days" of time by experts. Mr Staunton submitted that the changes were minor (describing the matters indicated at paragraph15 above) and suggesting that these changes "didn't require significant re-assessment".
The following points can be made in regard to this contested issue (either directly from the legislative provision, or following prior judgements):

Section 8.18(3) of the Act requires costs to be ordered other than in instances of a "minor amendment". That is, to say there is no discretion available to the Court here.
The statute does not define the term "minor" and the onus is on the applicant to show that the amendments are minor (S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 [5-6].

In S J Connelly Pty Ltd v Ballina Shire Council, Biscoe maps out findings in certain other judgements including Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153, 169 LGERA 45 where at [42] Pepper J determined a set of eight principles to assist in determining whether amendments are "minor" for the purpose of s 8.18(3) of the Act (then s 97B). I have considered these principles and find them generally useful but find another of Pepper J's authorities more pertinent to the quite clear set of amendments involved in the matter before me. In Groeneveld v Wollongong City Council [2009] NSWLEC 149 at [29] - [32] Preston CJ held: "29 I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor. 30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained. 31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept.
In my view the setting described above by Preston CJ has particular similarities to the subject matter. Contextually, it is clear to me that the amendments, while appearing quite modest by way of description now, went beyond "matters of detail" and were of considerable significance. The amendments were central to the critical question of whether or not the proposal breached the LEP height standard (in terms of the exemptions provided for "architectural roof features" under cl 5.6 of the LEP). The provisions at cl 5.6 also make clear that this particular assessment exercise would necessarily go beyond the linear (or "box-ticking") into some degree of complexity. In particular cl 5.6(3)(b) is pertinent here in the determination of questions associated with design integration of the roof structure, the lift and the stair arrangements. For the reasons indicated above, these amendments are not be able to be classified as minor, and in that case require an appropriate order as to costs thrown away by the Council.

Conclusions

The position before this hearing is that as a consequence of amendments to the proposal and agreed conditions to be imposed on any development consent, Council's planning and urban design experts have come to the conclusion that the amended proposal warrants approval. I have considered this evidence along with the evidence of the applicant's experts. I have also reviewed the proposals credentials in regard to cl 5.6 of the LEP and find that there is no breach of the height control under cl 4.3 of the LEP. I am satisfied that consent can be granted to the application in accordance with the agreed conditions.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development application No. 390/2016, for demolition of existing structures and the construction of a five storey mixed use development at 520 Canterbury Road Campsie is approved subject to the conditions of consent at Annexure A. 3. The applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application, as agreed or assessed. 4. The exhibits, other than Exhibits 1, and D, are returned.

P Walsh Commissioner of the Court Anneuxre A (C) 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: 27 July 2018

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (3)