Yassine Holdings Pty Ltd v Burwood Council

Site and locality

1. The site is located on the western side of Gordon Street between Railway Crescent and Gladstone Street. It comprises two lots which are each developed with a single dwelling. The site is a square shape with each boundary being approximately 32m and an overall area of 1,024.3sqm.
2. Adjoining the site to the north is large two storey detached dwelling known as "Aberfoyle" (24 Gordon Street) and to the south is a single storey detached dwelling (28 Gordon Street).
3. The street has a mixture of residential developments predominantly detached one and two storey dwellings and terraces. There are RFBs, which are three storeys plus attic to the south of the site (30 Gordon Street) and on the opposite side of Gordon Street (31-33 Gordon Street) and a six storey RFB on the corner of Gordon Street and Railway Crescent (47 Railway Crescent). The railway corridor is at the southern end of Gordon Street and the site is walking distance to Burwood Town Centre.

Background and proposal

1. The background to the development application is outlined in Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023. In summary, the development application was lodged on 17 April 2014, and under Burwood Local Environmental Plan 2012 (LEP), a maximum height of 26m and a floor space ratio (FSR) of 3:1 is permissible. Amendment No 5 to the LEP (Draft LEP) commenced on 28 November 2014 which proposes a maximum height of 11m and a maximum FSR of 1.5:1. Notice of Motion to adjourn the hearing
2. At the commencement of the hearing on 4 December 2014, Mr Clay SC, for the applicant, sought to adjourn the proceedings to prepare further amended plans to address the Draft LEP given that it had only recently been raised as a contention and it had now been made and was therefore imminent and certain. The applicant had prepared plans in response to the draft LEP and had sought to have these discussed by the experts as part of their joint conferencing prior to the hearing, but this was opposed by council and did not occur. He submitted that if an adjournment is not granted, the applicant would be prejudiced as it had not been able to address the additional contentions raised by council.
3. Mr Seton, for the council, opposed the adjournment on the basis that the applicant would have been well aware of the Draft LEP and the implications for its development and should have sought an adjournment prior to the commencement of the hearing. If it wished to have an alternate scheme discussed by the experts it should have sought leave to rely on amended plans. The adjournment would add further delay and costs to the hearing.
4. Although it is not preferable to adjourn a hearing, I accepted that there are circumstances which would warrant such action. Particularly, as the Draft LEP was only recently included as a contention and it commenced a few days prior to the hearing, which could not easily have been foreseen by the parties, given the time that LEPs normally take to be made. The Draft LEP is now imminent and certain and therefore must be given considerable the weight (see Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279, Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 and Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142). I found that it was therefore appropriate that the applicant be given time to address this changed circumstance and the additional contentions. The experts agreed on parameters for amended plans, which may not resolve the issues in dispute but were likely to reduce them. The adjournment was granted as it would promote the just, quick and cheap resolution of the proceedings. Notice of motion to rely on amended plans
5. On 6 February 2015, the applicant sought and was granted leave to rely on the amended plans foreshadowed when the adjournment was sought (Revision E Plans) (See Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023). The amended plans were re-exhibited and considered by the experts in their joint reports. In response to the recommendations of the experts, the applicant on the first day of the reconvened hearing, made further changes (Revision F Plans), which are the plans for which the applicant is seeking consent.

Proposal

1. The development application, as amended, seeks consent to demolish the existing dwellings and construct a five storey residential flat building above two levels of basement parking. The development includes 18 apartments (1x1 bedroom, 16x2 bedroom, 1x3 bedroom) and 23 parking spaces. The proposed gross floor area (GFA) is 1515.39 sqm representing a FSR of 1.49:1 and the overall height is 15.8m (to the top of the lift motor room). The form of the development is a three storey podium with two storeys set back above.

Statutory framework

1. The site is zoned R1 General Residential under the LEP and the development is permissible with consent. The objectives of the zone, which under cl 2.3(2), the consent authority must have regard to are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. Clause 4.3 permits a maximum height of 26m and cl 4.4 permits a maximum FSR of 3:1.
3. There are a number of heritage items in the vicinity of the site, including "Aberfoyle" and the cottage at 28 Gordon Street, which adjoin the site. "Gascoyne" (22 Gordon Street) is to the north and a row of terraces are to the north west of the site on the opposite side of Gordon Street (23-25 Gordon Street). The objectives of cl 5.10 - Heritage conservation relevantly include: (a) to conserve the environmental heritage of Burwood, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
4. Clause 5.10(5) provides that the consent authority may require a heritage management document to be prepared for development that is in the vicinity of a heritage item which assesses the extent to which the development would affect the heritage significance of the heritage item.
5. The Draft LEP applies to the northern portion of the precinct bounded by Wentworth Road, Railway Crescent, Carilla Street and Gladstone Street, known as the "Wentworth Road Precinct". The Draft LEP reduces the maximum height permissible under cl 4.3 to 11m and the maximum FSR to 1.5:1 in the northern portion of the Wentworth Road Precinct. The height and FSR controls under the LEP for the southern portion of the Precinct are unchanged. In Gordon Street, the boundary of the two precincts is the southern boundaries of 28 Gordon Street and 29 Gordon Street. The draft LEP contains a savings provision which provides: (2) A development application made (but not finally determined) before the commencement of Burwood Local Environmental Plan 2012 (Amendment No 5) for development on land to which this Plan applies is to be determined as if that Plan had not been made.
6. The relevant planning controls for the purposes of this development application are in the LEP, although the provisions of the Draft LEP are matters to be taken into consideration under s 79C(1)(a)(ii). The parties agree that as the Draft LEP has been made, it is "imminent and certain" and should be given weight. However, they reach different conclusions on whether the proposal undermines the future planning objectives for the area in particular, the FSR (cl 4.4) and height controls (cl 4.3), which is discussed later.
7. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the development. Clause 30 requires consideration of the design quality when evaluated in accordance with the design quality principles in Part 2 (cl 30(2)(b)), and the Residential Flat Design Code (RFDC) (cl 30(2)(c)).
8. Burwood Development Control Plan 2013 (DCP 2013) relevantly includes provisions for Streetscapes (cl 2.4), Residential flat buildings in R1 zone (cl 4.1) and Heritage residential precincts (cl 4.7).

Evidence

1. The hearing commenced on site on 4 December 2014, where the Court heard evidence from residents objecting to the proposed development and also from residents in support of the application. The Court also heard further submissions in Court on 9 March 2015 in response to the application as amended in the Revision E Plans. The main concerns of the objectors were that the height and bulk of the proposal was inconsistent with the existing and desired future character of the street. In particular, the proposal would adversely impact on the heritage significance of the adjoining heritage items and would result in unacceptable impacts on residential amenity, including visual bulk, privacy and loss of sun light.
2. The supporters of the proposal considered that the area is in close proximity to Burwood centre and transport and it is suitable for higher density. There are already a variety of buildings of different heights in the street and the proposal will add to this diversity. They considered the impacts to be reasonable and similar to those already experienced from the relationship of other buildings in the street.
3. The Court heard expert evidence from: For the applicant Ms Larissa Brennan, town planner Mr J Phillips, heritage consultant Mr P Smith, urban designer For the council Mr R Toohey, town planner Ms J Hill, heritage consultant Ms K Castellanos, urban designer
4. As a result of the series of amendments to the plans, the contentions and issues between the experts have generally been resolved. The key disagreement that remained was whether the fifth level should be deleted. In summary, the experts for the council did not consider that the podium would be the dominant element in the streetscape or that the upper levels would be recessive. The proportions of the two storeys above a three storey podium mean that the upper levels would be clearly visible from a number of positions in Gordon Street, particularly above the single storey cottage at 28 Gordon Street. They did not agree that the setback, or changes to the colour or materials could reduce the bulk and scale of two upper levels to the extent that they would fit into the streetscape and achieve an acceptable relationship with the adjoining heritage items.
5. The height of the proposal would exceed that of any existing building in the street, other than the six storey RFB on the corner of Railway Crescent that is opposite the railway corridor. The experts considered the existing character of Gordon Street to be predominantly one to two storey houses, a number of which are heritage items that are unlikely to be redeveloped. The controls in the Draft LEP, particularly the 11m height control, seek to ensure that new development respects the height and scale of these heritage items and provides an appropriate transition between future development and the taller buildings along the railway corridor.
6. Mr Toohey considered that the height and FSR controls in the LEP are maximums that are not able to be achieved given the heritage and urban design constraints of the site and the precinct. In his opinion, a development which complied with the 11m height control in the Draft LEP would achieve a better fit with the existing and desired future context. However, he accepted that if the fifth level of the development were deleted the proposal could be supported.
7. Ms Hill proposed amendments to the development (Exhibit 11) which include the deletion of Level 5 and changes to the façade of Level 4, included grouping windows to rationalise the solid to void relationship and the use of roof cladding for the walls in a darker colour so that the upper level would appear more as a roof element and be more recessive. Ms Hill proposed a reduction in the height of the podium to align with the gutter level of Aberfoyle and improve its relationship. She also recommended changes to the balcony and façade treatment of the podium to improve its relationship with the 28 Gordon Street and when viewed from Gordon Street.
8. The experts for the applicant considered that the three level podium is the dominant part of the building that would be read from the street within a landscaped setting. The upper levels would be recessive because of their set back from the podium, articulation, materials and colours. They acknowledged that the upper levels would be seen from certain vantage points in Gordon Street, particularly from the south, but considered that they would not be inconsistent with the existing and likely future character of Gordon Street. The height is below what is anticipated by the LEP and would be consistent with the height of buildings sought under the Draft LEP.
9. Mr Smith considered the existing context to be an eclectic mix of heights and referred to the six storey residential flat building on the corner of Railway Crescent and Gordon Street and the three storey plus attic residential flat buildings at 30 Gordon Street and 31-33 Gordon Street as being the character of the southern end of Gordon Street, which is unlikely to change.
10. In Mr Smith's opinion, the future character of the northern end of Gordon Street, under the draft LEP, would result in single storey dwellings being replaced with three storey RFBs. Although, he acknowledged that this was likely to occur on only three sites between Railway Crescent and Gladstone Street, but considered that the frontages of these sites, together with the existing RFBs, would define the character of the street. In his opinion, the proposal would fit comfortably within this context.
11. Furthermore, Mr Phillips considered that the upper levels would not adversely impact on the significance of the adjoining and nearby heritage items and did not agree with the opinion of the council's experts that the fifth level should be deleted. He supported the changes to the podium recommended by Ms Hill and acknowledged that the suggested changes to the upper floors would reduce the visibility of these floors, but considered they should not be treated as a roof element.
12. The council and applicant's experts agreed that there was a disconnect between the height and FSR control in the Draft LEP. The FSR of 1.5:1 would be unlikely to be achieved within an 11m height control, particularly if the setbacks identified in council's report supporting the Draft LEP (the Report) were applied (Tab 11 Exhibit 5).

Findings

1. In Maygood, Pepper J considered a savings provision in similar terms to cl 1.8A(2) of the LEP and found that the reasoning in Terrace Towers and the "stream of authorities" both proceeding and succeeding are applicable.
2. Mason P in Terrace Towers (with whom Spigelman CJ and Ipp JA agreed) stated (at [50]-[51] and [53]: 50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s79C(1)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight. 51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(l)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival". …… 53 The relationship between LEP 1993 and LEP 2000 was correctly stated in the next paragraph of the judgment (emphasis added): [17] Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993, although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209).
3. Further (at [59]) Mason P said: .....The transitional provisions require LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made"..... The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development......
4. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
5. His Honour further stated (at par [35]-[36]): 35...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
6. The parties agree that as the Draft LEP has been made, it is "imminent and certain" and should be given weight. However, they reach different conclusions on whether the proposal undermines the future planning objectives for the area in particular, the height controls (cl 4.3).
7. All the experts agree that the maximum height of 26m under cl 4.3 and the maximum FSR of 3:1 under the LEP are not able to be achieved on the site given the heritage and urban design constraints. However, they disagree on whether the proposed development with a height of 15.8m and a FSR of 1.49:1 satisfactorily addresses these constraints. Their disagreement centres on whether the height of the development will "fit in" with the existing and desired future streetscape which contains a number of heritage items.

What is the existing character?

1. The parties agree that the area in which the development should "fit in" is principally Gordon Street between Railway Crescent and Gladstone Street. The existing character of the street is predominantly one and two storey dwellings. The southern end of the street has two recent RFBs, including one opposite the site, which are three storeys with rooms in the roof and a six storey RFB on the corner of Railway Crescent. While these RFBs are within the visual catchment of the site they are not the dominant character.

What is the likely future character?

1. The southern end of Gordon Street has recent developments and is unlikely to change. The house immediately to the south at 28 Gordon Street is a single storey cottage, which is a heritage item on a 487sqm lot that cannot be amalgamated, it is therefore unlikely to be redeveloped.
2. Other that the subject site, there are three development sites in Gordon Street identified in the Report with the potential to be redeveloped for RFBs in accordance with the Draft LEP. These sites are interspersed with heritage items and dwellings on lots which cannot be amalgamated. Consequently, the desired future character envisaged under the Draft LEP retains one and two storey dwellings interspersed with RFBs within an 11m height limit. I note that the FSR control of 1.5:1 may not be achieved within this height limit if appropriate setbacks and landscape area are provided and amenity and heritage issues are to be addressed, but as this is a maximum control that applies across the northern part of the Wentworth Road Precinct there will be circumstances where it may not be met and other circumstances where a greater FSR, subject to a cl 4.6 objection, may be achieved.

Does the development "fit in"?

1. I accept the evidence of the council experts that the proposed five storey development does not "fit in" with the existing and desired future character of Gordon Street for the following reasons: 1. the proposal will be higher than any other building in the street, other than the six storey building on the corner of Railway Crescent, which is opposite the railway corridor and is the only building of this height in the Wentworth Road Precinct and is an "anomaly" in the streetscape. 2. the height of the proposal will not provide a transition between the higher buildings along the railway corridor and the existing and likely lower development at 28 Gordon Street and to the north of the site. 3. the upper floors of the proposal will be clearly visible, are not recessive and, together with the podium, will dominate the streetscape. 4. the proportions of the three level podium to the two levels above, as well as the setback, articulation, materials and landscaping will not materially reduce the visibility of the upper floors or their impact on the streetscape, particularly when viewed from the south.
2. The proposal is therefore not consistent with the future planning objectives sought for the area under the Draft LEP. Furthermore, the design quality of the proposal when evaluated in accordance with the design quality principles in SEPP 65 for Context (Principle 1), Scale (Principle 2) and Built form (Principle 3) does not achieve "good design" sufficient to warrant approval. Does the development have an adverse effect on the significance of heritage items in the vicinity?
3. The site forms part of the setting of Aberfoyle and 28 Gordon Street, which the heritage experts agree is part of the significance of these items. Development on the site therefore has the potential to impact on the setting and therefore the significance of these items. I accept Ms Hill's evidence that the proposal will adversely impact on the setting of Aberfoyle and 28 Gordon Street. The heritage items will be read against the backdrop of the podium height and the levels above. The proposal will not reflect the bulk, scale, height and proportion of these heritage items, respect views and vistas or be recessive in character and will dominate the heritage items. The proposed development would therefore not meet the objective O4 for the heritage controls in s 4.7.2 of the DCP: To ensure that development located in the vicinity of a heritage item is designed and sited in a manner sympathetic to the significance of the heritage property and its setting.
4. Furthermore it would not meet the provisions of s 4.7.2, in particular P35 and P40 which relevantly provide: Views and Vistas P35 Development of a heritage property, or development in its vicinity, must: …. - Not detract from the setting of the heritage property; - Retain and respect significant views/vistas from the public domain to a heritage property, as well as the views/vistas originating from the heritage property itself. Development in the Vicinity of a Heritage Property P40 New development, or alterations and additions to existing development, that is located in the vicinity of a heritage property, must be designed and sited to: - Have regard for, and be compatible with, the significance of the heritage property; - Reflect the bulk, scale, height and proportion of the heritage property; - Respect the front garden setting, any established setbacks, and views and vistas of the heritage property; - Be recessive in character and not dominate the heritage property; …..
5. Consequently, the development does not meet objective (b) in cl 5.10 of the LEP (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

Final Plans

1. The applicant, in the event that the Court was not minded to grant approval to the Revision F plans, would accept a decision that approved plans which incorporate the changes recommended by Ms Hill, including the deletion of Level 5 and lowering the podium. The council experts accept that with these changes the proposal would "fit in" and have an acceptable impact on the significance of the heritage items.
2. The applicant has prepared plans (Revision H Plans) which were filed on 16 April 2015. They incorporate the above changes and reduce the number of apartments to 16 x 2 bedrooms and 20 car spaces, including 2 disabled spaces and four visitor spaces, with an FSR of 1.33:1. With the deletion of level 5 and changes to Level 4 so that it reads as a roof element that is recessive and less visible in the streetscape as well as the changes to the podium to improve the relationship with Aberfoyle and 28 Gordon Street, I accept that the proposal has addressed the contentions of council and meets the intent of the Draft LEP while recognising the role of its savings provision and the existing planning controls in the LEP. The proposal, as amended, will have impacts, particularly on 28 Gordon Street, but these impacts will be consistent with those envisaged under the planning controls and were agreed by the experts to be acceptable.

Orders 1. The appeal is upheld; 2. The development application (62/2014), as amended in the plans filed on 16 April 2015 (Revision H), for the demolition of the existing dwellings and construction of a 4 storey residential flat building with 16 x 2 bedroom apartments and 20 parking spaces, including four (4) visitor spaces, in two basement levels, at 24A and 26 Gordon Street, Burwood, is approved, subject to the conditions in Annexure A; 3. The exhibits, except Exhibit 3, are returned. Annelise Tuor Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2015