XLJ Investment Group Pty Ltd v Ku-ring-gai Council

Table of contents Site and context Statutory setting The proposal Issues Orderly development and the role of easements Interpretation of "site area" and implications for development standards Flora and fauna impact Overshadowing Floor space ratio contravention Leave to amend the application and costs Concluding remarks Orders

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal of development application No. DA 495/18 by Ku-ring-gai Council ('Council') for a residential flat building ('RFB') and associated development in Turramurra.

Site and context

1. An unusual feature of this proposal is that while the proposed RFB would be located, essentially, on 1446 Pacific Highway, the proposal would integrate this new RFB with adjacent lands to the east, south and west upon which development for RFB development has already occurred. There is some intricacy to these arrangements, and the understanding of the totality of the land which is the subject of the application, and the associated legal interpretation of "site area", all of which are explained later.
2. What is clear is that all of the relevant land is located on the southern side of the Pacific Highway and falls within a precinct which is earmarked for development of this type, with considerable pre-existing RFB development already existing on both sides of the highway in this location.
3. In this setting, 1446 Pacific Highway is an example of a remaining undeveloped parcel. It is a rectangular shaped lot some 18.89m wide and 49.43m deep with a total area of approximately 930.8m2. The lot falls away steeply from the Pacific Highway, falling approximately 12m from the front boundary to the rear boundary. It is currently occupied by a two storey dwelling with attached garage. There is a swimming pool in the rear yard and a large canopy tree within the front setback.
4. Aside from 1446 Pacific Highway, the land which is the subject of the application is described in the Amended Statement of Environmental Effects (Ex N) as also including 1444-1454 Pacific Highway (also described in Ex N as part of the common property of SP 89317) and 1 Lamond Drive (also described in Ex N as part of the common property of SP 88529).
5. For convenience of explanation only, I will generally refer to 1446 Pacific Highway, where the proposed RFB building would be located, as the "core land". Similarly, and because of some discrepancies in the evidence in regard to street address, I will mostly use to strata plan (ie SP) references to describe the other land. Again for simplicity, and without at all wishing to contradict the Applicant's comments in closing submissions as to the importance of these lands, I will at times refer to the lands subject to the application within SP 89317 (1444-1454 Pacific Highway) and SP 88529 (1 Lamond Drive) together as the "supplementary land", when not referring to them by their individual strata plan reference number; and here to be interpreted as the relevant part of those strata plans.

Statutory setting

1. The site and its environs is zoned R4 High Density Residential under Ku-ring-gai Local Environmental Plan (Local Centres) 2012 ('KLEP'). The zone objectives are: • 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. • To provide for high density residential housing close to public transport, services and employment opportunities.
2. The particulars of KLEP controls relating to: floor space ratio (FSR) under cl 4.4, building height under cl 4.3 and minimum site area for RFB development under cl 6.5, all involve points of disputed interpretation. Rather than duplicate in this introduction, I will explain the particulars when the issues are under consideration.
3. KLEP provisions relating to biodiversity protection under cl 6.3 have significance here. Most of the land which is the subject of the application is identified as "area of biodiversity significance" as indicated through shading on the KLEP Natural Resource - Biodiversity Map. More particularly, Blue Gum High Forest (BGHF), listed as a Critically Endangered Ecological Community under the Biodiversity Conservation Act 2016, has been identified upon the land which is the subject of the application (Council's Amended Statement of Facts and Contentions, Ex 1, Tab 6, p6).
4. The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development('SEPP 65') and, relevantly, the 'Apartment Design Guide' ('ADG').
5. Ku-ring-gai Local Centres Development Control Plan ('KDCP') also applies.

The proposal

1. The plan below (Figure 1) was suggested in submissions to be the most appropriate for use for descriptive purposes (albeit having its own limitations on that score). The proposed RFB is shown in yellow on the core land. The larger portion of the supplementary land involves SP 89317, which is in part hatched blue, but also includes a battle-axe handle running along the south-eastern boundary of the core land (not shown hatched in the drawing). That portion of the supplementary land within SP 88529 is further to the south-east.
2. A series of easements have already been created benefitting the core land and burdening the supplementary lands. That is to say, certain property related relationships are already established linking the core and supplementary lands. The application before the Court is concerned with securing, relevantly, development consent, as a step beyond any property rights, in relation to the various development elements proposed on both core and supplementary land. Figure 1 - The site in context (source: Drawing A002 of application plans as amended)

Proposed development on core land (1446 Pacific Highway)

1. The component of the development on the core land (1446 Pacific Highway) is the easier to describe. The proposal seeks consent for the demolition of the existing structures and construction of an RFB development comprising 27 units, three levels of basement parking and basement waste storage, communal facilities and associated infrastructure. The proposal would present five levels to the Pacific Highway and stagger its height as the site slopes away from the road reserve boundary.
2. The external walls of the RFB would abut the side boundaries of 1446 Pacific Highway for a considerable extent. There is a 6m setback to the rear boundary and a varied setback to the front boundary: up to 14.62m and no less than 8.62m (accounting for underground parking).
3. Certain landscape and biodiversity conservation works would be undertaken in the rear boundary setback area (ie between the proposed RFB and what is shown as Building E in Figure 1). An elevated boardwalk would also run along the rear of the proposed RFB.

Development within SP 89317 (1444-1454 Pacific Highway)

Existing development

1. SP 89317 is occupied by an RFB development which was approved under DA 605/11. That application was determined by the Court following an agreement between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).
2. The existing development on SP 89317 comprises a five to seven storey building described as Buildings A, B, C and D in Figure 1. It also comprises Building E, also approved under DA 605/11 and located to the immediate south-west of the core land. Building E is particularly noteworthy in this matter in regard to overshadowing contentions.
3. Again relevant to the contentions, the consent to DA 605/11 includes certain requirements concerned with the management of what Council indicates to be BGHF "offset areas" associated with the approval of the existing development on SP 89317 (Ex 1 Tab 1 p27).

Proposed development

1. The proposed development can be described as comprising five elements directly involving SP 89317: 1. Provision of an elevated boardwalk from the Pacific Highway road reserve boundary running in a south-west direction and parallel to the proposed RFB. The boardwalk would be offset about 3.3m north-west of the boundary of the core land and wall of the RFB. One function of this boardwalk would be to connect the proposed RFB with an existing suspended boardwalk within SP 89317. There would be a "reading nook" constructed as well. 2. The space occupied by the proposed boardwalk is within the area affected by BGHF conservation requirements under consent conditions applying to DA605/11. The proposal would involve certain associated variations to the existing encumbrances and the approved Vegetation Management Plan for this area, explained further below. Certain BGHF-related landscape and biodiversity conservation works would also be undertaken. 3. Provision of a masonry egress stairway from the proposed RFB basement, which provides for fire egress. The stairway is located towards the south-west corner of the RFB. It would also be located upon BGHF affected land. 4. Provision of vehicle access from the Pacific Highway to the RFB basement parking, via the access handle component of SP 89317 (also using part of a generally underutilised strip of land along the western side of SP 88529), in an arrangement satisfactory to Roads and Maritime Service (RMS), which has a concurrence role in the circumstances. 5. Use of land for the purposes described above by RFB occupants.

Existing development

1. As shown in Figure 1, SP 88529 is to the south-east of the core land. An RFB also occupies that site. The building fronts Lamond Drive and has an underutilised area to the west of the existing RFB which would form part of the land which is the subject of the application. An underutilised concrete driveway is in part constructed on SP 88529 and partly constructed within the battle-axe handle running to the east of the core land to the rear of SP 89317.

Proposed development

1. Four elements can be described: 1. Vehicle access to the proposed RFB's basement parking would in part use underutilised common property within SP 88529. 2. BGHF-related landscape and biodiversity conservation works to the south-east of the proposed RFB, running parallel to vehicle accessway. 3. Provision of an elevated boardwalk to the south-east of the vehicle access within the unused strip of land along the western side of SP 88529, maintaining a pedestrian connection from the Pacific Highway into the southern area of the land subject to the application. 4. Use of the affected land within SP 88529 for the purposes described above.

Issues

1. There were some 26 matters raised in Council's Amended Statement of Facts and Contentions filed 7 August 2020 (Ex 1, Tab 1). The substance of the matters which warrant attention in this judgement can be categorised as follows: 1. Orderly development and the role of easements: Council contends that the proposal's reliance on a series of easements to provide for the integration of the core and supplementary land is unsatisfactory. Land consolidation is suggested as the appropriate way to provide for certainty for the overall proposal and remove risk of the abandonment of easements. 2. Interpretation of site area: There are related legal questions in regard to the correct interpretation of "site area" for the proposal under different provisions of KLEP. 3. Flora and fauna impacts: The contention is that the proposed development brings potential adverse impacts on identified BGHF areas. 4. Overshadowing: The contention relates to the proposed RFB's overshadowing of certain units within SP 89317, particularly in regard to Building E. 5. Contravention of development standards: The proposal contravenes certain development standards relating to FSR and building height. The contention is that there is insufficient justification for the contraventions. 6. Other issues: Council also raises building setback, inadequate deep soil planting, visual bulk and scale, building height, cross ventilation and acoustic amenity for future occupants along with public interest concerns.
2. I will here also introduce the experts giving evidence at the hearing. See table below. Expert Expertise For A Sutherland Planning Applicant B Gregory Planning Council A Cadogan Urban design Applicant K Hunter Urban design Council R Frew Landscape architect Applicant I Francis Landscape and ecological assessment Council R Kingdom Arborist Applicant J Whyte Ecological assessment Council V Fattoretto Acoustic Applicant T Rofail Wind and ventilation Applicant

Context

1. Building height, FSR and minimum site area controls within KLEP all embody provisions directly concerned with encouraging larger rather than smaller site area for the purposes of development such as RFBs.
2. The Applicant's submission was that the securing of property-related rights from the owners of SP 89317 and SP 88529 (through the series of easements) was in alignment with the intentions of KLEP in regard to providing for larger development sites. Therefore the "encouragements" in KLEP should be available to the subject proposal. The design schema adopted for the proposed RFB, including its building height and FSR in turn has relied on certain incentive provisions in KLEP.

Submissions

1. The Applicant says it is not practical to achieve formal consolidation, now, due to the disaggregation of tenure following the strata subdivision of the supplementary land, embodied in SP 89317 and SP 88529. The Applicant describes the proposal as "unusual" and "sophisticated" in its approach to relating the core and supplementary land. This sophisticated approach is seen as providing an alternative means of achieving KLEP aims.
2. It is argued that without the initiative involved in securing the relational arrangement between the core and supplementary land (in particular the easements), benefits provided by the proposal would not be achieved. These benefits are said to include improvements in regard to BGHF conservation and achievement of R4 High Density Residential zone objectives (see [7]). In regard to the latter, it argued that lesser in the way of "provision for the housing needs of the community" (in accordance with the zone objective) would be achieved otherwise.
3. Council's submissions also draws out certain "unusual" aspects of the development. A primary point is that the application is seeking to use floor space which has already been "used" to comply with controls in prior development consents on the supplementary land (termed as "double dipping"). Council suggests the purpose of the inclusion of the future use of some of the supplementary land, as part of the proposed development (in particular a large passive recreation area), is better seen as aimed at justifying a nominal site area compliance (under KLEP development standards), than as providing something of benefit for future occupants.
4. In response to the Applicant's submission that the proposed approach provides for beneficial environmental outcomes, Council submits that the proposed design prioritises the optimisation of development yield. According to Council, the proposed floor space and extent of occupation of the core land (building right to side boundaries) results in: unreasonable adverse impacts on identified BGHF conservation areas, inadequate deep soil planting, solar and visual impacts associated with height and bulk and internal design underperformance in regard to cross ventilation and acoustic amenity. A lesser density of development, more compliant with what Council would suggest as a normal application of controls, would not bring this extent of impacts.
5. Council also argued that as there was potential for the new easements to be extinguished through private agreements. Therefore, the particulars of the proposal in toto could not be assured into the future.

Finding

1. Dealing with the certainty factor in regard to the easements first, I agree with the Applicant that it is common to rely on easements for matters such as drainage and access in land development. I see little different here on that score. I also note the agreed condition (99A) requiring retention of easements.
2. I agree with both parties that this is an unusual development. In regard to Council's concerns about what might be thought of as the bona fides of the inclusion of at least parts of the supplementary land, it seems to me necessary to consider the proposal as put by the Applicant in the application. The point argued by Mr Cadogan, questioning the difference between "what constitutes appropriate development on land that exists in separate titles compared to the same land as a consolidated title" (Ex 3, par 3), appears to be a reasonable opening principle. That is to say at a prima facie level there is nothing particularly disorderly to be seen in that which is proposed in the existing circumstances.
3. Doubts in regard to bona fides of the various property-related easements, and subsequent rationalisations relating to the proposal's merits against development controls, warrant their own attention, as relevant. This can occur in the examination of the particular statutory and merits arguments. As a first step, there is a need to determine points of dispute in regard to the adopted site area for the purposes of the calculation of applicable FSR, building height and site area controls. I turn to that now. I will also mention that the question of "double dipping" is given direct attention in KLEP, at least in terms of the question of FSR calculation, and also comes under attention below.

Interpretation of "site area" and implications for development standards

1. I will consider the site area controls applying to FSR, building height and site facilities and the approach adopted in the application individually.

Why relevant

1. Clause 4.4(2E) of KLEP limits FSR within "Area 5" (see Figure 2) to 0.8:1 for sites having an area less than 1,800m2 and 1.0:1 for sites having an area between 1,800m2 and 2,400m2. For sites with an area of more than 2,400m2, a split FSR applies in this instance. A maximum of 1.3:1 is permitted at the northern end of Area 5 ("Area Q") with the southern area limited to 0.8:1 ("Area K."). Figure 2 - Excerpt LEP Floor Space Ratio map

Site area definition

1. There is a particular definition of site area applicable to FSR calculation (only) under cl 4.5 of KLEP. The definition of site area found in the Dictionary of KLEP applies otherwise to this application. The provisions of cl 4.5 are reproduced below relevant to the question of site area: (1) Objectives The objectives of this clause are as follows - (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to - (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. … (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be - (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. … (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. … (9) Covenants to prevent "double dipping" When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.

Points of interpretation

1. There are three points of interpretation involved in the clause. The first involves no dispute I believe. It is that the (full) area of any lot on which the development is proposed to be carried should be included as part of the site area for FSR calculation purposes so long as it has a common boundary with another lot upon which the development is proposed to be carried out (cl 4.5(3)(b)). There seems to be no disagreement that each of the "lots" upon which development is proposed have at least one common boundary with another.
2. The second point is whether the exclusions at cl 4.5(6) apply. In particular here, whether development on SP 89317 and SP 88529 each individually include "significant development". There is no definition of the term significant development in KLEP.
3. The authority gaining most attention in the hearing was TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 ('TK Commercial'). Here Robson J found that certain physical works involving "substantial excavation, the construction of a masonry stairway, the creation of new pathways and ramps, and the construction of a new sewer main and new drainage infrastructure" constituted "significant development" for the purposes of a similar clause to that in play in the matter before me.
4. The problem with both parties' reference to TK Commercial is that insufficient details were provided for me to appreciate the particulars of those "significant" works. While His Honour would have been exposed to such particulars, I am not, in particular, abreast of the extent of the first mentioned matter: "substantial excavation". I note in Antoniades Architects Pty Ltd v Canada Bay City Council [2014] NSWLEC 1019 Brown C found the other way to TK Commercial. In that determination an "access driveway" is found not to be significant development [72]-[73], although again I cannot be aware of what particulars were associated with Commissioner Brown's decision.
5. The third point is in regard to double dipping, which can be seen to gain direct attention at subclause (9) to cl 4.5.

Findings

1. I will refer first to the double dipping question. It seems to me it is necessary to have regard to the limits to KLEP's provisions in regard to it. For me, subcl (9) of cl 4.5 only goes so far in relation to the objective at subcl (1)(b)(ii). The objective at subcl (1)(b) makes clear its concern is with "(setting) out rules". In the particular case of subcl (1)(b)(ii), the rules are intended to prevent "an area" that has been already included to maximise floor space in a prior development from inclusion in site area calculations for a future development (which is argued by Council as directly occurring in this matter). However, the particular rule established in KLEP to prevent double dipping (at subcl (9)) limits itself to permitting the imposition of conditions which prevent double dipping in the future (ie for a future development application). This setting seems to place an onus on a consent authority to recognise the risk beforehand. In this instance that would have required a consent authority to have already imposed the said "covenant" as a condition relating to approvals on the supplementary land. There were no submissions that there were any such covenants. It seems to me that cl 4.5, including through the only relevant operational provisions at subcl (9), gives no assistance to Council in its arguments that double dipping might be a factor in a finding in regard to site area, which needs to be otherwise interpreted under that clause. In these circumstances, cl 4.5 would need to, were I to find favour in Council's argument.
2. I now turn to the interpretation of "significant development" for the purposes of the interpretation of site area under cl 4.5 of KLEP. The authorities provided to the Court included reference to the downside of a move to "closely define" the term "significantly" in the phrase "significantly affect the environment" now at s 5.7 of the EPA Act (see Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155; [1989] NSWLEC 19 [163]). The need, in that instance, to assess the facts constituting the environment and the activity and its likely effect on that environment in the circumstances is emphasised. Nonetheless, for me, some guidance is provided in Oshlack v Richmond River (1993) 82 LGERA 222, p19 ('Oshlak'), where it is indicated "significantly" has been held to mean "important", "notable", "weighty" or "more than ordinary".
3. I do not see the proposed large areas of communal space within SP 89317, which would be available for passive recreation by occupants of the proposed RFB, could be characterised as being important or weighty aspects of the proposal and, for me, significant development. That is to say, these passive recreation areas, which make up a very significant proportion of the supplementary land, would not of themselves qualify as site area under cl 4.5. But this is not fatal to the Applicant's argument. The proposed sole vehicular access to the RFB, also located substantially on SP 89317, is significant development. Because of the construction of the clause (cl 4.5(3)(b)) "the area of the (whole of SP 89317)" comes into the calculation of site area.
4. The proposed development's use of land within SP 88529 also includes significant development. The most obvious reason is because an important part of the sole access driveway for the RFB is located on this land. The proposed elevated boardwalk on 1 Lamond Drive is also significant development as it is necessary for fire egress (Ex LL). In my view the somewhat narrow area of BGHF planting on SP 88529 would not be significant development, of itself, but this is not relevant to the finding in regard to SP 88529 as site area.
5. With these findings, which essentially align with the opinion of Mr Sutherland, the approach to the calculation of site area for the purposes of FSR assessment is available. See below [113] for the consideration of FSR issue more particularly, including in regard to the contravention of the FSR development standard at cl 4.4 of KLEP.

Why relevant

1. Clause 4.3(2A) of KLEP permits a maximum building height for development in "Area 1" (see Figure 3) of 11.5m for sites having an area less than 1,800m2 and 14.5m for sites having an area between 1,800m2 and 2,400m2. For sites with an area of more than 2,400m2, a split building height applies. A maximum of 17.5m is permitted at the northern end of Area 1 ("P") and a maximum of 11.5m applies at the southern end ("L"). All of the proposed RFB is located at the northern end of Area 1 and the Applicant argues that, as the site area is in excess of 2400m2, a maximum building height of 17.5m would apply.

Figure 3 - Excerpt LEP Height of Buildings map

Site area definition

1. The definition of 'site area' found in the Dictionary of KLEP applies: site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

Interpretive points

1. Mr Sutherland goes to a level of detail in interpreting area upon which development would be carried out across the three affected parcels of land (Ex 3, par 79-82). Some areas of the supplementary land included as site area under cl 4.5 in relation to FSR is excluded (eg where an easement for light and air is in place but no development is otherwise proposed). There is again reliance on intended use of large parts of the common property at SP 89317 for passive recreation purposes and, relevantly, intended and lawful access. The site area claimed, pertinent to cl 4.3(2A) of KLEP, is 6459.4m2. This area significantly exceeds 2400m2, the threshold area to allow a maximum building height of 17.5m.
2. Council notes the area of 1446 Pacific Highway (the core land) upon which the RFB building would be generally located is 930.8m2 in area. It does not support the site area assumed for the purposes of Council's height of building control along similar lines to the position adopted with respect to FSR-related site area.

Findings

1. There are two important differences between the site area definition found at cl 4.5 (relating to FSR and considered in depth above) and that found in the KLEP Dictionary. First, under the KLEP Dictionary there is capacity to consider a "part of" a lot, rather than the entirety of any lot (explained above) as required under cl 4.5. Second, under the KLEP Dictionary there is no cause to question the 'significance" of any proposed development in determining whether it should be included in the site area calculation. So even though I may not think there is not much significance to what is proposed in certain passive recreation areas within SP 89317, it is clear that development is proposed there all the same (ie through passive use of the land in alignment with property rights (easements) secured to that effect). In the circumstances, there is no alternative than to adopt the position that the application includes the use of considerable areas within SP 89317 and SP 88529. The site area for the purposes of cl 4.3 is well in excess of 2400m2. The applicable maximum building height control is 17.5m.

Site area and site requirements for residential flat buildings

Why relevant

1. Clause 6.5(3) of KLEP requires a minimum "lot" area of 5,000m2 for RFB development within "Area X" under the KLEP Lot Size map. See Figure 3.
2. Clause 6.5(2) requires a minimum street frontage of 24m for RFB development on lots less than 1800m2 and 30m for lots greater than 1800m2.
3. Council in its submissions has pointed to KLEP drafter's use of the term "lot" rather than say "site area" in the detailing of the development standards in cl 6.5. There was an inference that a lot (rather than say a group of non-consolidated but related lots as is the case here) provides a particular opportunity to achieve intended objectives. Figure 4 - Excerpt LEP Lot Size Map

Finding

1. I do find the particular use of the term "lot" in this clause odd. However, the more pertinent clause objective, here essentially in relation to the question of available frontage, is to "allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas". I am more convinced by the Applicant's reference through expert evidence to the Interpretation Act 1987, where s 8(b) provides that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form". This means the tests at cl 6.5(2) and (3) apply to the area and street frontage of the relevant "lots".
2. As there are no provisions to justify otherwise, it seems reasonable in regard to the interpretation of both lot area and street frontage in cl 6.5(2) and (3) to follow KLEP Dictionary approach with regard to "site area", as described above ([50] et seq). It has been established that the total of the lots of land which are the subject of the application (Lot 1 DP 259533 and relevantly the common property within SP 89317 and SP 88529) well exceed 5000m2. While I am not sure I agree with the applicant that the frontage to the Pacific Highway is 78.42 (indicated in Ex N, p51), it is well in excess of 30m. It follows for me that the proposal meets the site requirements for RFB development under cl 6.5 in regard to minimum lot area and minimum street frontage.

Context

1. One of the conditions of the development approval applying to SP 89317 (DA605/11) required the creation of a restriction as to user limiting works in what I have described above as an established BGHF "offset area" (Condition 96). There were also management works to be undertaken in support of intended positive ecological outcomes. Council submits and it is not, as I understand it, contested that this offset area was established as a result of the loss of BGHF trees otherwise associated with development in accordance with DA605/11.
2. One part of the identified offset area abuts the core site and is located to the immediate south-west of the proposed RFB. Henceforth I will call this the "western BGHF management area". As indicated above, the proposal includes certain physical works in the western BGHF management area (ie outside the core land). The physical works include: (1) an elevated boardwalk, of open "mesh" construction, running from the Pacific Highway and connecting into the proposed RFB at a side entrance towards the rear of this proposed building (this boardwalk would also link into the walkway network on SP 89317) and (2) fire egress stairs at the western corner of the proposed RFB. The proposal would also provide for "updates" to concomitant ecological management requirements established for this section of the BGHF offset area under DA605/11.
3. The Applicant submits that were the appeal to be successful, a condition of consent would require a variation of the existing restrictive covenant. I accept the Applicant's submission that this path is open to me (Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220 at [27]), including in regard to the question of purported inconsistency with an earlier development consent applying to SP 89317 (Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 at [98]).
4. A key document relating to the existing management regime applying to the western BGHF management area under DA605/11 is referenced as follows: Amended and Updated Vegetation Management Plan, prepared by Keystone Ecological, 20 August 2013 (Ex 1, Tab 10, Folio 213 - 'Existing VMP').
5. The documents relating to this portion of the BGHF area, prepared by the Applicant as part of the current proposal, are as follows:

• Updated Flora and Fauna Assessment Report (Version 3) prepared by Conacher Consulting August 2020
• Updated Supplementary Vegetation Management Plan (Version 3) prepared by Conacher Consulting August 2020 (Ex L - 'Supplementary VMP')
• Draft Environmental Site Management Plan prepared by Conacher Consulting August 2020.

Policy

1. Both KLEP and KDCP controls are relevant but I will concentrate on KLEP controls here. I have already noted that much of the site falls within areas indicated as of "biodiversity significance" in KLEP's Natural Resource - Biodiversity Map. Below I cite cl 6.3 of KLEP, relevantly, including its jurisdictional provisions particularly noting subcl (4): 6.3 Biodiversity protection (1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including - (a) protecting biological diversity of native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities, populations and their habitats, and (d) protecting, restoring and enhancing biodiversity corridors. (2) This clause applies to land identified as "Areas of Biodiversity Significance" on the Natural Resource - Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) the impact of the proposed development on the following - (i) any native vegetation community, (ii) the habitat of any threatened species, population or ecological community, (iii) any regionally significant species of plant, animal or habitat, (iv) any biodiversity corridor, (v) any wetland, (vi) the biodiversity values within any reserve, (vii) the stability of the land, and (b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and (c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is consistent with the objectives of this clause, and (b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided - (i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and (ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and (iii) the development avoids clearing steep slopes and facilitates the stability of the land, and (iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

Evidence

1. There is agreement among the ecological experts that adverse impacts will occur in the western BGHF management area.
2. Mr Manners, ecological expert for the Applicant, says no BGHF trees will be removed (given leave to amend the application explained below [132]) and indicates the impact would "be limited to tree trimming and removal of recently planted understorey plants" (Ex 4, p16). He also indicates the overall proposal would result in a net increase in BGHF vegetation. This would be due to that which is proposed at the front of the core land (including retention of a large canopy tree and other vegetation management arrangements), along the side of the core land (where new planting is proposed alongside the proposed driveway) and to the rear of the core land (where new planting is proposed between the proposed RFB and Building E).
3. Mr Whyte, ecological expert for Council, indicated that the proposal would remove BGHF planting, reduce the available space for the establishment of trees, shrubs and groundcover vegetation, bringing about adverse impacts. There would also be an erosion of the existing protections under DA605/11 (Mr Manners acknowledges "changes" but not that they would constitute an erosion of protections - see below). Mr Whyte indicated that future large canopy trees needed space to grow and mature. The proposal limited future growth capacity due to hardstand and elevated building works at the edge of the western BGHF management area, and encroaching into this area with the intended fire egress stairs and elevated boardwalks. According to Mr Whyte, setting back the RFB building works from the common boundary would have provided a better outcome in ecological terms. In cross examination Mr Whyte acknowledged the benefits associated with the proposed plantings and management arrangements at the front and rear of the proposed RFB, and to a lesser extent along the driveway.
4. Comparisons between the Existing VMP [62] and Supplementary VMP [63] came under some consideration in evidence. Of note was the identification of the differentiated spatial management units identified in the Existing VMP, in particular MU3 and MU6 which together covered what I am describing as the western BGHF management area. MU3 occupied the larger area and MU6 was a smaller area located adjacent to the western BGHF management area's boundary with the core land. The MU6 area was shown as 211m2 in area (Ex 1, Folio 233). More specifically, the MU6 area under the Existing VMP would directly abut the proposed RFB building and would be in part occupied by the proposed fire egress stairs from the RFB basement area and the elevated boardwalk. It seems clear from the evidence that the MU6 area was identified in the Existing VMP as an area of high priority in ecological terms. The objective for this area was identified as "fully structured BGHF" (Ex 1, Folio 233), consistent with other areas on SP 89317 identified as MU1, MU4 and MU5, located to the south of the building works approved under DA605/11. The nominated objective for MU3, that is the rest of the area within the western BGHF management area, was less ambitious: "Established plantings of BGHF species" (Ex 1, Folio 229).
5. The Supplementary VMP (Ex L) would classify the area shown as MU6 in the Existing VMP to accord with the requirements of MU3 in that VMP.
6. A point of difference between the experts here was whether there were prospects for the (existing) MU6 area to regenerate as proposed under the Existing VMP. Mr Whyte indicated that the difference between MU3 and MU6 areas at the time of preparation of the Existing VMP was that BGHF seedbank occurred in the MU6 area. He believed that prospects for natural regeneration to occur under the Existing VMP requirements remained, and that introducing new plantings (as proposed for MU3 areas) was not as beneficial in ecological terms. Mr Manners was of the view that a full year (four seasons) without evidence of natural regeneration was enough time to determine that the MU6 style of management was no longer necessary or appropriate and an MU3 style of approach was preferred in that area.

Consideration

1. Central to the consideration of this issue is cl 6.3 of KLEP.
2. First, I acknowledge that the proposed arrangements to the front and rear of the RFB would no doubt provide some ecological benefit having the potential to "improve the diversity and condition of native vegetation and habitat", mindful of the objectives of cl 6.3.
3. Then I note that the provisions of cl 6.3(4) involve jurisdictional gateways through which the proposal must pass if consent is to be granted. One requirement is for the Court to be satisfied that the proposal is consistent with the objectives of this clause (cl 6.3(1)). The second has a conditional aspect to it involving two limbs. The initial limb would have the Court satisfied that the development "is designed, and will be sited and managed, to avoid any potentially adverse environmental impact". However, there is another limb available in instances where "potentially adverse environmental impact cannot be avoided". In these instances, four cumulative tests are put. It will be shown below that I find these tests are not relevant to the case at hand, as I find the impact can be avoided in this instance.
4. The Applicant's principal argument is that the proposal would bring about an overall improvement in regard to BGHF outcomes, perhaps due especially to intentions regarding BGHF vegetation and habitat to the front and rear of the RFB. Improvements which are not of course available if the proposal does not go ahead. It does not seem to me that what might be thought of as "net benefit" is the test that is before me here in a jurisdictional sense. But even if it was, the question of what weight should go to this aspect of the proposal (in terms of the offsetting of disbenefits otherwise contended in regard to the western BGHF management area) arises. It would not bring substantive weight in my view. This is because, in ecological terms, I see the proposed improvements at front and rear of the RFB as mostly in the way of baseline requirements which would be expected of development in this location given the fact that these areas are indicated as of "biodiversity significance" in KLEP's Natural Resource - Biodiversity Map. The planting along the driveway is a little different given some of this area is not shown in the Natural Resource - Biodiversity Map as of biodiversity significance. But the ecological benefits of this latter planting is of lesser importance anyway according to the evidence.
5. The jurisdictional concern here is the test at cl 6.3(4) of KLEP and in this instance I am not satisfied in regard to the first limb of cl 6.3(4)(b). There is agreed evidence that the proposal would bring about an adverse environmental impact on the western BGHF management area established under DA605/11 due to the construction of the elevated boardwalk and basement staircase both of which are located within the high value MU6 area under the Existing VMP. I also agree with Mr Whyte that the massing of the RFB, with building works and excavation right to the boundary of the western BGHF management area, including the edge of the current MU6 area, would constrain the biodiversity protection prospects for the western BGHF management area. The side boundary building setback requirements under KDCP includes a numerical control of 6m. But even if it were seen that there should be lesser setback applicable here, a built-to-the-boundary scenario, as proposed, must be seen as unreasonable in a setting adjacent to an identified area of biodiversity protection significance. I do not believe the development is designed, and will be sited and managed, to avoid any potentially adverse environmental impact.
6. There was insufficient evidence brought to my attention to accept the position of the Applicant that the current MU6 area can be re-categorised as MU3. In this instance, the precautionary approach adopted by Mr Whyte is preferred. But, in my view, even at an MU3 category, the proposal's design and siting and intended management regime would still bring about, rather than avoid, an adverse environmental impact in regard to the land adjacent to the proposed RFB and particularly the area currently shown as MU6 in the current VMP. Under cl 6.3(4) of KLEP, there is then a need to turn to the question of whether I am satisfied that "potentially adverse environmental impact cannot be avoided".
7. The Macquarie Dictionary (online, accessed 13 November 2020) provides some interpretive assistance: "unavoidable" is seen to mean "inevitable"; with "inevitable" in turn seen to mean "certain or necessary". Turning to caselaw, and while there is not complete alignment with the context here, a reasonable interpretation of the phrase "cannot be avoided" is that from Edwards v Blue Mountains City Council [1961] NSWR 803 (p270) where the meaning "not reasonably practical to prevent it" was attributed. The position adopted in both Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 (Arkibuilt) and Barrett and ors v Blue Mountains City Council [2011] NSWLEC 1341 (Barrett), while concluding differently, seem to follow that principle. As shown in the citations below, in each of these two latter cases, the test applied by the Commissioners (when considering the question of avoidance) turned to the design and development prospects for the site. That is, what I might consider the otherwise "practical" appropriateness of the particular development proposal.
8. In Barrett, Brown C found at [51]: "I am satisfied that there is no practicable alternative in terms of design, type and site coverage, having regard to the permissibility of the proposed development (including compliance with the relevant zone objectives but subject to the provision of an acceptable landscape plan) and significant compliance with the development standards in Schedule 2 Part 1."
9. In Arkibuilt, then Commissioner Dixon found at [59] "While I understand vehicle access from Lindfield Avenue is not available I am not satisfied on the evidence that the Applicant has exhausted design alternatives, which would avoid the adverse environmental impact of the loss of all or any of these significant trees. Therefore, I am not satisfied on the evidence before me that the development has been designed or sited and managed to avoid potentially adverse environmental impacts"
10. In the case before me, the adverse environmental impact could be avoided in at least two ways. The first is through the removal of the elevated boardwalk, the impacts of which are only partially offset by its construction features. The elevated boardwalk would not be required for fire egress purposes (Ex LL) and there were alternative means for connecting with the walkway network within the supplementary land. Indeed, the Applicant made clear to me that this option was available to the Court under 4.16(4) of the EPA Act. But this would not resolve the issue with the basement staircase required for fire egress, or the concerns raised by Mr Whyte in regard to the RFB construction right at the boundary of the western BGHF management area.
11. The second way would involve a redesign to set the RFB structure, including the basement staircase, back from the western BGHF management area established under DA605/11.

Finding

1. In this instance I believe that there are design alternatives available which would avoid the impact. This design alternative would involve the setting back of the RFB as described above. I see this alternative as available and practically appropriate. The proposal, at present, is acknowledged as exceeding the applicable FSR controls (see [113]) and is built to a property boundary which I believe must be seen as at the extreme end, in design conception terms, in a setting adjacent to an identified area of biodiversity protection significance. This means I am not satisfied that the development is designed and will be sited and managed to avoid adverse environmental impact in a setting where potential adverse impact can be avoided.

Context

1. Council contends that the proposal fails to demonstrate provision of solar access amenity to existing RFB development within SP 89317. Concerns are raised about the direct overshadowing of certain units in Building E (particularly units E06, E07, E12, E13, E18 and E19) and wider impact. The Applicant says that the proposal satisfies requirements in regard to overshadowing of Building E, as well as in regard to impacts on other development on SP 89317 which is assessed holistically in accompanying numerical analysis.

Policy

1. SEPP 65 and the ADG were the central reference points for the evaluation of overshadowing. There are certain "considerations" required of me at cl 28(2) which I have attended to. But more relevant here is cl 30(2): Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
2. Part 3 of the ADG is concerned with 'Siting the Development'. Part 3B is concerned with "Orientation", and Objective 3B-2 is of particular interest here and provides relevantly as follows. "Objective 3B-2 Overshadowing of neighbouring properties is minimised during mid winter Design guidance Living areas, private open space and communal open space should receive solar access in accordance with sections 3D Communal and public open space and 4A Solar and daylight access Solar access to living rooms, balconies and private open spaces of neighbours should be considered Where an adjoining property does not currently receive the required hours of solar access, the proposed building ensures solar access to neighbouring properties is not reduced by more than 20% If the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond minimums contained in section 3F Visual privacy Overshadowing should be minimised to the south or down hill by increased upper level setbacks It is optimal to orientate buildings at 90 degrees to the boundary with neighbouring properties to minimise overshadowing and privacy impacts, particularly where minimum setbacks are used and where buildings are higher than the adjoining development …"
3. Part 4 of the ADG ("Designing the Building") also arose in evidence. Most pertinent were the following provisions: "Objective 4A-1 To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space Design criteria 1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas"

Interpretation of criteria

1. There is varied evidence in regard to how I might consider solar access for existing development on the supplementary land (including Building E) as well as the proposed RFB itself. The criterion of most attention was the third point of design guidance under Objective 3B-2. Mr Sutherland's assessment of the question of whether "solar access to neighbouring properties is not reduced by more than 20%" was provided on three different bases: (1) Building E alone, (2) a "whole of development" basis for all buildings within SP 89317 and (3) combining the proposed building and the existing buildings within SP 89317. While I acknowledge Ms Hunter's queries in regard to taking into account other nearby approvals, I will say here I generally accept these numerical calculations undertaken by Mr Sutherland. It will be seen that my main concern is in regard to the direct impacts on units (or "properties") within Building E alone.
2. In regard to Building E, Ms Hunter's evidence includes a more straightforward accounting for the 20% reduction criterion. To illustrate, Ms Hunter finds that 9 units within this building would lose some solar access and that for 6 of the units "more than 20% of existing amenity would be lost" (at the winter solstice). I understand "existing amenity" here to refer to solar access.
3. A first interpretive question is therefore whether the third point of design guidance under Objective 3B-2 (the 20% reduction factor) is concerned with "whole of development" type evaluation or individual unit evaluation, or both.
4. A more fundamental interpretive question is what significance should go to conformance with "design guidance" criteria within the ADG, in any event.
5. I come back to these interpretive questions in my findings on this topic.

Expert advice

1. Mr Sutherland says (Ex 3, par 365): "The Apartment Design Guide specifically tolerates solar access impact from a proposed development to adjacent existing residential flat building, and provides specific numerical guidance to assist in understanding the limits of this tolerance. My assessment in relation to what constitutes an acceptable level of solar access impact is guided by this tolerance and the impact of the proposed development does not exceed the limit of this tolerance, and therefore I must conclude that the proposed solar access impacts are therefore acceptable."
2. Mr Sutherland also opines (Ex 3, par 372): "This design guidance contemplates up to 20% reduction of the existing solar access performance of Building E if it is below the 70% requirement. In this instance, 56.25% of apartments in Building E currently enjoy 2 hour solar access. A 20% reduction of this figure is 11.25%, which means that the solar access of Building E can be reduced to 45% or 14 apartments and remain consistent with the design guidance. This represents a reduction of 6 units from the 20 units which currently receive more than 2 hours solar access."
3. I note Mr Sutherland also refers to the fifth design guidance point and the fact that the proposal does increase upper level setbacks with positive solar impact effects. Mr Sutherland summarises the position regarding Building E as follows: "Therefore, having regard to the circumstance of the site including the constrained site area and the very steep fall to the rear, the proposed design successfully minimises shadow to Building E to the south as demonstrated by the impact being within the tolerance contemplated by the Design Guidance."
4. Mr Sutherland also referred to a previous finding by Commissioner Gray in Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 ('Louden') (Ex 3, par 368-9): "368 The Land and Environment Court has previously recognised - in (Louden) that objective 3B-2 does not mean that every unit in a neighbouring development may necessarily have solar access that complies with design criterion 1 of objective 4A-1. In Louden a unit's solar access was reduced to between one hour-and-a-quarter and one-and-half hours of sunlight to the living room and private open space as a consequence of the development of a new unit four-storey building to the north (at [78]). 369. The Court accepted (at [81]) that the new building has been skilfully designed and articulated to retain solar access to the four impacted units of the adjoining residential flat building (to the south of the development). It had done so by reducing the floor space at the upper levels to improve solar access across the site. The unit whose solar access was reduced was held to be highly vulnerable due to its orientation and location. In circumstances of such vulnerability, between one hour-and-a-quarter and one-and-half hours of sunlight to that unit was sufficient to satisfy the Court that the proposal had minimised its overshadowing of adjoining development (therefore meeting objective 3B-2 of the ADG). The Court did not attempt to quantify this reduction in percentage terms."
5. Mr Cadogan also provided his expert opinion that skilful design has been employed in regard to this issue (Ex 3, par 389): "The relevant performance to be achieved in relation to overshadowing in this instance is set out by the ADG's design guidance as described in Mr Sutherland's comments on this matter. The building bulk has been skilfully designed to minimise the impact to achieve that performance. Views from the sun demonstrate that as a result of the layout of apartments within Building E, the steeply falling topography, and the relative path of the sun, there are no reasonable additional setbacks to upper levels or the sides of the building that could lift the performance without there being extreme reductions in the envelope of the proposed development. These diagrams also show that for the same reasons, setbacks along the north-western boundary alluded to by Ms Hunter would not result in a substantial improvement in the solar access maintained. Given that the ADG guidance has been followed and the overshadowing performance has been achieved to then require further building setbacks to achieve a higher performance would be in my view unreasonable. On balance I therefore consider that the overshadowing has been competently managed and minimised to an acceptable level."
6. The overall position of Mr Sutherland and Mr Cadogan is that the proposal represents an acceptable loss of existing amenity in the circumstances.
7. Ms Hunter does not believe that the amenity loss is acceptable. She does not believe the Applicants emphasis on the 20% reduction factor is well conceived. Ms Hunter believes there has been insufficient consideration being given to site analysis and design generally and the overarching intent of Part 3B of the ADG (Ex 3, par 397): "It is my opinion that a 20% 'tolerance': is not a stand-alone 'right' to reduce existing amenity, and is dependent on the design demonstrating a response to minimise impacts identified through the contextual and specific site conditions within a thorough Site Analysis, and it relates to the level of existing solar amenity enjoyed by neighbouring properties. There is additional design guidance at objective 3B-2 that a design strategy is expected to have responded materially in ways to reduce overshadowing impact. Examples described within Part 3B include increased building separation, alternative building type, reducing building height, and in the subject site, this would also include the response to side setbacks, and may require adjustments to the density."
8. Ms Hunter also refers to the direct impacts on Building E of the proposed RFB, and finds as follows (Ex 3, par 406): "The proposed development on 1446 Pacific Highway impacts on a further 9 units - E06, E07, E12, E13, E18, E19, E24, E25 and E30 (extrapolated from solar analysis A502(C) to A514(C)). Of those 9 units, I have found that 6 units (E06, E07, E12, E13, E18, E19) will have more than 20% of their existing amenity lost."
9. In regard to Building E alone and conformance with the design criteria to Objective 4A-1 of the ADG, I note Mr Sutherland said: "Building E's performance drops from 20-14 units" (Ex 3 par 376).

Finding

1. The points which need attention here are as follows: (1) the significance of compliance with the design guidance measure at 3B-2 of the ADG, (2) interpreting the design guidance measure at 3B-2 and "compliance" (ie "whole of building" and/or individual unit basis) and (3) overshadowing impact and the extent of consideration given to design alternatives. A fourth point was that raised in submissions by the Applicant in regard to easements for air and light and the like.

The significance of compliance with a design guidance measure

1. The "how to use this guide" section of the ADG is useful here. Mr Sutherland quotes it in part (Ex 3 par 371) but I will provide a fuller quotation, as follows: "Achieving the objectives Parts 3 and 4 of the Apartment Design Guide provide objectives, design criteria and design guidance for the siting, design and amenity of apartment development. Each topic area is structured to provide the user with: 1. a description of the topic and an explanation of its role and importance objectives that describe the desired design outcomes 2. design criteria that provide the measurable requirements for how an objective can be achieved. 3. design guidance that provides advice on how the objectives and design criteria can be achieved through appropriate design responses, or in cases where design criteria cannot be met. The key to working with Parts 3 and 4 is that a development needs to demonstrate how it meets the objective and design criteria. The design criteria set a clear measurable benchmark for how the objective can be practically achieved. If it is not possible to satisfy the design criteria, applications must demonstrate what other design responses are used to achieve the objective and the design guidance can be used to assist. in this. Not all sections within Parts 3 and 4 specify design criteria. In these instances the design guidance should be referred to when demonstrating how an objective is being achieved."
2. Under the ADG explanation, achieving a measurable requirement listed as a design criterion would demonstrate how an objective might be achieved. Mr Sutherland submits that a design guidance-level measure (in this case the 20% reduction factor) demonstrates the "tolerance" available for overshadowing purposes mindful of Objective 3B-2. This leads Mr Sutherland to conclude there is an acceptable solar outcome achievement. Mr Cadogan goes a little further to say "ADG guidance has been followed and the overshadowing performance has been achieved" (Ex 3, par 389).
3. It does not seem to me that the 20% reduction factor provided as design guidance is a "clear measurable benchmark for how the objective can be practically achieved". This is the function of a design criterion. One very notable in solar access assessment is the design criteria established for Objective 4A-1 of the ADG (see [86]). It certainly makes sense that a design guidance measure has weight in the consideration of merits, but it does not of itself demonstrate practical achievement of itself. As submitted by Ms Hunter, the availability of design alternatives that might reduce the solar impact, might be another merits considerations that warrants attention. The Applicant's experts make some references to the consideration of design alternatives, including through the reference to Louden (see [95]), which I turn to below.

Interpreting the design guidance measure at 3B-2

1. Mr Sutherland focused on larger scale effects, for whole buildings and the like. Ms Hunter raised the issue of effects on individual properties, suggesting six units within Building E were significantly affected by overshadowing in mid winter.
2. It seems reasonable to me to interpret the design guidance provision of Objective 3B-2, to include a concern with minimising overshadowing to neighbouring properties individually. I would think this interpretation is concerned about the residential amenity directly enjoyed at neighbouring properties and cushioning the effects of any new development for the occupants of that property. This is a different interpretation from that adopted by Mr Sutherland where he examined the whole of building effects. This interpretation can also be seen as useful and thought of as having value in understanding solar access within residential development at a larger scale, for example as a means of considering wider energy consumption questions. Clearly both issues (amenity and energy efficiency) are interests of the ADG.
3. The solar view diagrams, and accompanying calculations are directly helpful in appreciating the solar impact of the proposed building on Building E. I accept the evidence that solar access to units 6 and 7, 12 and 13 and 18 and 19 in Building E would be significantly reduced by the proposed RFB in mid winter. Having a mind to Louden (which I note also seems to evaluate on the basis of individual properties), some of these units are more at risk than others in terms of shadow impact, which takes me to the next point.

Overshadowing impact and consideration of design alternatives

1. Mr Cadogan says that "the design was significantly amended to minimise the extent of overshadowing of Building E in precisely the manner suggested by the ADG with reductions to the bulk and scale, and reduced setbacks of upper floors" (Ex 3, par 386). He also references "skilful design" in the architectural scheme and says additional setbacks along the north-western boundary "would not result in a substantial improvement in the solar access maintained", and that "there are no reasonable additional setbacks to upper levels or the sides of the building that could lift the performance without there being extreme reductions in the envelope of the proposed development" (Ex 3, par 389).
2. Ms Hunter says that there has been insufficient attention to the site analysis as required under Part 3A of the ADG and that there is insufficient evidence of meaningful consideration of the solar impacts on Building E, evidenced by the proposed building form which is seen to maximise its 3-dimensional extent and exceeds the density controls (Ex 3, par 409). It is suggested "an adequate setback from the north-western boundary would not result in the overshadowing impact that is proposed".
3. I generally prefer Ms Hunter's evidence over that of Mr Cadogan on this point. The constraints on Building E in regard to solar access raised by the Applicant are acknowledged, in particular its siting on a lower level and on land sloping away from the core land upon which the RFB would be located. But I am unconvinced by Mr Cadogan's arguments that the proposal has exhausted reasonable alternatives. Or put another way, it is his interpretation of what might be thought of as "substantial improvements in the solar access maintained" [108], through any increased setback to the north-western boundary, that is moot. In this instance, with these site constraints, the capacity to retain even an extra 30 minutes of morning sun into the living areas of units 24, 18, 12 and perhaps 6 (while noting the leading edge of the building itself), when otherwise dominated by an uphill RFB could, in mid-winter, provide considerable additional amenity. As the season moves onwards from mid-winter an solar access to these and other adversely affected units within Building E increases.

Significance of existing easements favouring the proposed development

1. To the extent that I understood the point correctly, there was a submission that existing easements burdening Building E and favouring the proposed RFB in regard to air and light might be a factor in the consideration of the reasonableness of any overshadowing impact. In reviewing the advice contained in the letter from Mills Oakley to XLJ Investment Group dated 23 January 2020 (Ex AA, par 1.91-1.95), it would seem the easement is concerned with protecting future amenity within the proposed RFB from development on SP 89317. I would not think this property encumbrance has any significance to the question of planning evaluation of overshadowing impact.

Summary

1. My finding on the issue of overshadowing is that the proposal brings significant adverse effect on the amenity of certain properties within Building E, which neighbours the proposed RFG. In the circumstances of this case, where design alternatives are available to reduce the impact, overshadowing of neighbouring properties has not been minimised. In turn, Objective 3B-2 of the ADG has not been achieved.

Floor space ratio contravention

1. The proposal involves a contravention of the FSR development standard at cl 4.4 of KLEP. There are permissive powers at cl 4.6(2) of KLEP which provide, relevantly, as follows: Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument ...
2. The permissive power in cl 4.6(2) is subject to the restrictions in cl 4.6(3) and (4): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the Applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
3. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding the contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]). The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
4. To open the gate to the application of these permissive powers, mindful of cl 4.6(3) of KLEP, the Applicant has provided a written request seeking to justify the contravention. The written request was prepared by Sutherland and Associates and was dated September 2020. It formed Exhibit F in the proceedings.
5. The intricacies of the calculations involved in determining the site area for FSR purposes in this setting is considered above [41]. Suffice to say here that I agree with Mr Sutherland's conclusion in regard to site area for FSR calculations. As detailed in Ex F, the FSR controls applying to the land which is the subject of the application, themselves, also involve some intricacies. This is centred on the split controls which apply. As introduced at [36], a maximum of 1.3:1 is permitted at the northern end the of the site shown as "Area Q" in the FSR map (where the bulk of the existing RFB development is located and additional RFB development would occur with the subject proposal). The southern area of the site (Area K) is limited to 0.8:1.
6. There is agreement among the parties that Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74 establishes the framework for the appropriate calculation of FSR in scenarios of this kind. The core point being that the FSR must be calculated separately for the parts of the proposed development within Area Q and Area K. In this instance it is agreed there is a contravention in regard to Area Q, that is the northern area upon which the building works are proposed.
7. An FSR of 1.45:1 is calculated for Area Q (Ex F, p12) whereas the applicable control is 1.3:1. This contravention is also calculated as equating to 1612.2m2 or 11.4% of the control.

Whether compliance unreasonable or unnecessary in the circumstances of the case

1. According to Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe') (at [42]-[51]), and as confirmed in Initial Action, establishing that the objective of a development standard has been achieved notwithstanding non-compliance with the standard is one way of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. This first Wehbe "way" is used by the Applicant, along with the third Wehbe way ("that the underlying objective or purpose of the development standard would be undermined, defeated or thwarted if compliance was required". A third ground is also used which suggests the burden placed on the community by not permitting the variation would be disproportionate to the adverse consequences attributable to the breach. The written request could adequately address the test before it if just one of the approaches was successful.

Whether objectives of the development standard achieved notwithstanding non-compliance

1. I do not believe the written request demonstrates that the objectives of the FSR standard has been achieved in this instance. My concern is in regard to objective (b): to enable development with a built form and density compatible with the size of the land to be developed, it's environmental constraints and its contextual relationship
2. The written request raises a number of points in regard to objective (b) (Ex F, p14-15): "This objective focuses on the built form (which includes issues of bulk and scale).The proposed new building is of an appropriate scale and design and presents as a 5 storey building with the top floor setback as anticipated by the DCP. The building also achieves ADG compliant separation from all surrounding buildings. Therefore, the proposed new building achieves an appropriate contextual fit which is compatible with the recently completed adjoining development, notwithstanding the FSR non-compliance. The proposed development facilitates the removal of a dwelling which has become anomalous to the new character and scale of development which has emerged in recent years on both sides of the dwelling, and its replacement with a building which is entirely consistent in terms of its height, massing and architectural language with the new context of the site. The setbacks on either side of the proposed new building are appropriate and the rhythm of building to void along the Pacific Highway is maintained by the proposed new building. In addition, the proposed variation to the northern FSR control does not result in any unreasonable impacts, noting that this does not compromise the achievement of all of the necessary metrics in relation to site coverage, common open space and deep soil. Furthermore, whilst the proposal results in some shadow to Building E within the site, the shadow is within the limits as anticipated by the ADG and furthermore when considered on a holistic basis, the proposed new building achieves the same level of solar access as that which has already been approved for the recently constructed development of the site."
3. Other points raised elsewhere in the written request include (ibid): "The overall density of the proposal does not exceed the total density which could be achieved across the site and is in fact well under this density by 766.06 square metres. … • A development that redistributed gross floor area to the southern part of the site would be unreasonable or unnecessary because it would be contrary to core objective of the split FSR zones which instead aims to shift the majority of built form to the northern part of the site and away from the Blue Gum Forest on the site. The Applicant's proposed approach towards the distribution of density on the site is entirely aligned with the objective of the split FSR zones by moving density towards the northern part of the site. • The proposed new building is of an appropriate scale and design and presents as a 5 storey building with the top floor setback as anticipated by the DCP. Therefore, the proposed new building achieves an appropriate contextual fit which is compatible with the recently completed adjoining development, notwithstanding the FSR non-compliance. • If the variation is not permitted, the overall site will not achieve its planned level of density. The southern portion of the site is fully-developed and is now comprises new built form and common property open space. There is no credible prospect that any additional gross floor area could be accommodated in the southern area. This makes it sensible for at least some of the density that was not able to be achieved on the southern site now be accommodated on the northern site (given that there are no unacceptable impacts from the re-distribution of gross floor area)."
4. I agree that the proposed built form would fit well in the streetscape and is compatible in that sense. The concern is in regard to environmental constraints and contextual relationship, otherwise. I do not agree with the written request's conclusion that the FSR, as proposed, does not result in any unreasonable impacts. As previously found, the proposal would bring adverse environmental impacts in regard to BGHF and unreasonable overshadowing of Building E. The written request has not adequately countered these findings. The written request has not demonstrated the proposal comprises a built form and density compatible with the site's environmental constraint and its contextual relationship with Building E.

Whether underlying objective or purpose of the standard would be undermined if compliance was required

1. In relation to this second ground, the written request references the relevant objectives of the development standard, comprising objective (b), cited above, as well as objective (a) which is as follows: (a) to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai
2. Three adverse consequences are suggested if compliance is required (Ex F, p15-16): "Firstly, a building form of scale that is more appropriate to a medium density zone would ultimately be erected, rather than a high density residential zone. Secondly, the overall site will fall well-short of its planned intensity. This means that the community will not get the originally anticipated social return on the investment it has made in public transport and services infrastructure in the Turramurra town centre. Less people will have the opportunity to live in walking distance of these facilities. The facilities will suffer reduced patronage. Thirdly, less people will have the opportunity to undertake passive recreation in southern part of the site (which is only accessible to the residents and visitors of the overall site). This space is unlikely to be overused based on the existing level of development. This land is aesthetically pleasing and its use for passive recreation is something to be encouraged (in circumstances where there is no prospect of it becoming congested or over-used). These adverse outcomes would mean that a compliant development falls short of the two above objectives of a development standard to a far greater extent that the proposed development. In short, the objectives of the standard are better achieved by the proposed development, when compared with the likely compliant development that would otherwise be pursued. This fact alone is sufficient to establish that requiring strict compliance with the FSR is unreasonable or unnecessary in the circumstances of the case."
3. I am not convinced of these arguments for the reasons that follow. In regard to the written request's first argument, strict compliance does not by default require a building "more appropriate" for a medium density zone. It is not clear what building form would result as a consequence of strict compliance. One option might involve setting back the building from the north-western boundary somewhat and accommodating all of the fire egress stairs on the core land, while otherwise providing development of a similar scale. The written request's second argument inflates adverse consequences of the reduced GFA. The written request's third argument does not measure up against the environmental and amenity effects of the contravention.

Burden placed on the community by strict compliance is disproportionate

1. This ground seems to include that component of the second ground suggesting a burden is placed on the community by under-utilisation of the site, which would be disproportionate to adverse consequences. This ground inappropriately suggests that achieving FSR in accordance with a local environmental plan has a community benefit beyond a reasonable interpretation (see for example Wenli Wang v North Sydney Council [2018] NSWLEC 122 where Robson J finds that "maxima provided for in development standards are not rights to develop to those levels", but rather are "jurisdictional gates" to "merits assessment"). Planning provisions can and commonly do account for a variety of social, economic and environmental factors with the intention of overall community benefit, rather than burden. In this instance, the environmental and amenity impacts which can reasonably be seen as relating to the contravention, outweigh any burden the community might bear from the loss of GFA.
2. I am not satisfied that the Applicants written request has adequately addressed the matters required to be demonstrated under cl 4.6(3)(a). That is, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
3. There is no jurisdiction to approve the development given the FSR contravention.
4. I will therefore not proceed to examine the further merits issues raised in the application.

Leave to amend the application and costs

1. The Applicant sought leave to amend the application essentially centred on: (1) the relatively late advice of concurrence from Roads and Maritime Services (RMS) concerned with Pacific Highway access, and (2) certain amendments to the western elevated boardwalk arising in expert dialogue related to retention of Tree 337, located within the BGHF management area. There were various documentary consequences to these changes which were included: (1) amended architectural drawings (Ex DD), (2) amended landscape plans (Ex EE) and (3) an updated BASIX certificate. An update to the design verification statement was also prepared. The Applicant notes that the physical changes to the plans are limited to adjustments to the detailing of the driveway entry and adjustments to the boardwalk to sidestep Tree 337. The changes to other documentation were said to be essentially consequential.
2. Leave is granted to the amendment and indeed these changes were factored into hearing proceedings and in the preparation of this judgement.
3. Section 8.15(3) of the EPA Act provides for orders for the payment of costs thrown away in certain instances. The following points can be made in regard to this contested issue:

• Section 8.15(3) requires costs to be ordered other than in instances of a "minor amendment". That is, to say there is no discretion available.
• 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]).

1. In Futurespace Pty Ltd v Ku-Ring-Gai Council(2009) 169 LGERA 45; [2009] NSWLEC 153 at [42], Pepper J determined a set of eight principles to assist in determining whether amendments are "minor" for the purpose of s 8.15(3) (then s 97B). I have considered these principles and find them generally useful but find one of the authorities referenced by Pepper J as particularly pertinent to the question before me. In Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 (Groeneveld) at [30] - [31] Preston CJ held: "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.
2. In my view the setting described in Groeneveld has some similarities to the circumstances here. Contextually, it is clear to me that the amendments go beyond "matters of detail". The particular change of note here is the relocation of the pathway to allow retention of Tree 337. Tree 37 is described as an Allocasuarina toruolosa or Forest Oak (Ex 1, Tab 1, p28) and falls within the western BGHF management area. This amendment was significant to the proposal's efforts to address contentions relating to BGHF retention.
3. The amendments brought about a material change to the proposal. For this reason, 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.

Concluding remarks

1. It is clear to me that the design as proposed does not adequately respond to a number of key requirements. I have indicated above that there is no jurisdiction to approve the development in this instance of FSR contravention (KLEP cl 4.4). Therefore the appeal must fail. I also repeat here that I am not satisfied that the proposal is designed, and will be sited and managed, to avoid any potentially adverse environmental impact in a situation where this adverse environmental impact can be avoided (KLEP cl 6.3(4)(b)). This is a further jurisdictional bar. I have also found that the design has not given adequate regard to Objective 3B-2 of the ADG in terms of minimising overshadowing. I have not needed to further consider the merits contentions, given these findings.
2. The fact that there is no jurisdiction to consent to this application has meant that there has not been any necessity for me to balance the applications benefits to its adverse factors. I have made some remarks in regard to the proposal's intended extension of BGHF management onto the core land, a foregone benefit with refusal of the application. I wish to also mention here the objectives of the R4 High Density Residential zone, in particular that which may be read as the key objective, of "(providing) for the housing needs of the community within a high density residential environment". With a mind to this zone objective, and the particular context which presents with this proposal, there can be seen to be some reason to the proposal's efforts to achieve density significantly above that which might otherwise have been available to the core land alone, from a strict interpretation of existing controls. However, with this application, the flexibility otherwise available in regard to planning controls has been pushed too far. In my view, this applies in regard to the proposed development along the north-western bounds of the core land in particular.

Orders

1. The orders of the Court are: 1. Leave is granted to the Applicant to amend the application in accordance with the following material in the Applicant's bundle of documents filed 17 September 2020: architectural and landscape drawings, BASIX certificate and design verification statement. 2. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is dismissed. 4. Development application DA 495/18 is refused. 5. The exhibits are returned with the exception of Exhibits A, C, DD, EE and 3.

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: 04 December 2020