Yassine Holdings Pty Ltd v Burwood Council

Preliminary Issue

1. Following lodgement of the appeal, the proceedings were the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 ("the LEC Act"). Arising from that conference, the applicant prepared amended plans ("Revision B plans") which sought to respond to contentions raised by the Council during the conciliation.
2. The applicant, by Notice of Motion filed on 23 January 2015, sought leave of the Court to amend DA/107/2014 pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") by the substitution of new plans, being the Revision B plans.
3. The Revision B plans, inter alia, reduced the development from 9 storeys to 6 storeys, the number of apartments from 58 to 37 and the number of car bays from 71 to 45 bays over two basement levels.
4. The Notice of Motion detailed the Revision B plans amendments to the application and outlined the applicant's justification for the amendments. These were, in summary that: it would reduce the environmental impact of the development by reducing the bulk, scale and height of the RFB; would result in a development more sympathetic and compatible with nearby properties and the locality; and would provide more amenity for future residents of the RFB.
5. Clause 55 of the Regulation provides: 55 What is the procedure for amending a development application? (1) a development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
6. Pursuant to s 39 of the LEC Act, the Court may exercise the power of the Council as the consent authority under cl 55.
7. The Council opposed leave being granted on the basis that it was beyond the power of the Court to agree to the amended development application under cl 55 given the nature of the amendments proposed.
8. The Court nevertheless granted leave for the applicant to rely on the Revision B plans as the amended application.
9. At the commencement of the hearing, the applicant sought leave of the Court to further amend the plans in response to consideration of issues by experts engaged by the parties. These plans were referred to as the "Revision D plans". The changes proposed to the development were detailed by the applicant including a further lowering of height from 6 storeys to part 4, part 5 storeys, increased setbacks, reduced Floor Space Ratio and improvements to the built form with increased articulation. Further changes included modifications to a number of units to improve internal amenity, a decrease in deep soil area landscaping, and a reduction in the number of units from 37 to 29 and in the number of car bays from 45 to 35.
10. The applicant agreed to pay the respondent's costs in assessing the Revision D plans arising under s97B of the Act. The Council amended their Statement of Facts and Contentions and the experts updated their joint reports to address the Revision D plans prior to the hearing commencing.
11. The Council nevertheless opposed leave being granted on the basis that the Revision D plans constituted amendments to the application beyond the power of the Court to approve under cl 55 of the Regulation. Mr Seton for the Council took the Court to Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSW LEC 155 specifically at 17 where Justice Jagot considered whether the development as proposed to be changed was in essence the same development. In the Council's view, the Revision D plans were not in essence the same development and therefore constituted an original application which the Court could not approve.

Findings on Preliminary Issue

1. Leave was granted to the applicant during the hearing to rely on the amended Revision D as now comprising the application as I was satisfied that the Revision D plans proposed in essence the same development as proposed in the Revision B plans, thus meeting the test in Radray for the purposes of cl 55 of the Regulation. The following outlines in detail the reasoning for granting leave.
2. The Court had already determined that the Revision B plans which, inter alia, took the development from 9 to 6 storeys, and reduced the number of units by 21 and the number of car bays by 26, comprised the same development. There was an ability for the Council to seek a review of that decision but the Council had not done so.
3. I was therefore only required to determine if the development reflected in the Revision D plans was essentially the same development as that reflected in the Revision B plans.
4. The Revision D plans vary from the Revision B plans by reducing the number of storeys, the number of units and some setbacks, and by reconfiguring the building envelope, landscaping, car parking and the internal layout of some units.
5. In Radray, Her Honour at [6] to [10] states: In Ebsworth v Sutherland Shire Council Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised - that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]). 7 At [40] in Ebsworth v Sutherland Shire Council, Talbot J observed that: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate. 8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development). 9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" (Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 - 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J). 10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).
6. I reviewed the changes sought between the Revision B and the Revision D plans. I noted that, although there had been a reduction in the height and some setback changes, the development remained a residential flat building over 2 levels of basement parking in generally the same building envelope and on the same site and with a similar façade to that proposed in the Revision B plans.
7. I considered that the changes made to the application met the test in Ebsworth where Justice Talbot noted that proposed amended plans in that case were both beneficial and facultative. The same is true in this instance. The revised plans are seeking to respond to Council and objectors concerns and are designed to facilitate a more beneficial outcome in the interests of both those parties.
8. I was therefore satisfied that there is power under cl 55 for the Court to agree to the proposed amendment. Furthermore, I found that it is appropriate to exercise that power in this instance. The amendments are a response to the issues raised by the Council and the objectors and in the amended LEP. While the amendments did not resolve the issues in dispute, they were reduced relative to the issues arising from the Revision B Plans.
9. I therefore found that the amendments proposed in the Revision D plans compared to the Revision B plans will not result in the conversion of the application into an "original application" and accordingly that is was appropriate that the Court exercise its discretion under cl 55. Leave was accordingly granted for the application to be amended.

The Site

1. The site is an amalgamation of five adjoining lots: Lot 1 in DP91150, Lot 1 in DP743613, Lots 1 and 2 in DP749446 and Lot 27 in DP1136455. The lots contain collectively 3 detached dwellings and a dual occupancy.
2. The site is located on the western side of Camilla Street, is rectangular in shape with an approximate 47m frontage to Camilla Street, 32m southern and northern (side) boundaries, and a 49m rear boundary. It has an overall area of 1,559.64m².
3. The site is adjoined on its southern boundary by a 4 storey RFB and on its northern boundary by a 2 storey detached dwelling.
4. At the rear, the southern portion of the site is adjoined by a modest single storey detached dwelling (28 Gordon Street) which is heritage listed whilst the northern portion of the site is adjoined at the rear by a two storey dwelling known as Aberfoyle (24 Gordon Street) which is also heritage listed. Between these two heritage listed dwellings, the Court has recently approved the redevelopment of 24A-26 Gordon Street for a 4 storey RFB (Yassine Holdings Pty Ltd v Burwood Council (No. 2) [2015] NSWLEC 1188).
5. Carilla Street has a mixture of residential developments predominantly detached one and two storey dwellings and terraces but including the adjoining RFB. Development on the opposite (eastern) side of Carilla Street primarily comprises single and two storey cottages.
6. The site is situated within 500m of the Burwood and Strathfield Town Centres and train stations.

Statutory Controls

1. The site is subject to the provisions of the Burwood Local Environmental Plan ("the LEP"). The site is zoned R1 General Residential under the LEP and the proposed use is permissible in that zone.
2. At the time of lodgement of the DA, the LEP permitted a maximum height of 26m and a floor space ratio (FSR) of 3:1 for the site.
3. In August 2013 the then Department of Planning rejected a Planning Proposal (PP) by the Council to downzone land in a precinct bound by Wentworth Road, Railway Crescent, Carilla and Gladstone Streets, Burwood, known as the "Wentworth Road Precinct", which included the site and land to the rear in Gordon Street.
4. In early 2014, the Council re-enacted the PP and subsequently held discussions with the Department of Planning and Environment ("the Department"). The Department issued a Gateway Determination for a revised PP which became Amendment No 5 to the LEP ("LEP Amendment 5").
5. LEP Amendment 5 was publically exhibited from 16 September to 14 October 2014 and commenced on 28 November 2014. It reduced the maximum height to 11m and the maximum FSR to 1.5:1 in the "Wentworth Road Precinct" (therefore, including, for the site).
6. LEP Amendment 5 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.
7. As previously indicated, the applicant lodged DA/107/2014 on 3 July 2014. Under the LEP savings provision, the DA is to be determined as if LEP Amendment 5 had not been made and therefore the new height and FSR restrictions do not apply. However, the consent authority is still required to have regard to the provisions of LEP Amendment 5 as matters to be taken into consideration under s 79C(1)(a)(ii) as well as the objectives for development under the LEP.
8. The objectives for the R1 General Residential zone 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.
9. There are heritage items in the vicinity of the site, including Aberfoyle at 24 Gordon Street and the cottage at 28 Gordon Street, which adjoins the rear of the site. The objectives of LEP 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.
10. The requirements in Clause 5.10 of the LEP include: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This sub clause applies regardless of whether a heritage management document is prepared under sub clause (5) or a heritage conservation management plan is submitted under sub clause (6).
11. 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)).
12. The development is subject to the provisions of the Burwood Development Control Plan 2013 ("the DCP"). The DCP includes provisions for Streetscapes (cl 2.4), Residential flat buildings in R1 zone (cl 4.1) and Heritage (cl 4.7).
13. Specifically, in terms of heritage provisions, the DCP includes the following objectives: 01 To support the retention of heritage properties and maintain their heritage significance 04 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.
14. P40 of Clause 4.7.2 of the DCP states: 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 on 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;
• Interpret the materials and architectural detailing of the heritage property;
• Respond to the building alignment of the heritage property.

Resident objections

1. Written objections to the development were received and, at the commencement of the hearing on site, the Court heard evidence from a number of these residents. These included residents in Carilla Street opposite the site and from Gordon Street including in heritage listed dwellings in the vicinity or at the rear of the site, being residents of 22, 24 and 28 Gordon Street.
2. The main concerns of the objectors were that the height and bulk of the proposal was inconsistent or incompatible with the existing and desired future character of the street. In particular, concern was expressed that the proposal: 1. was out of keeping with the low density, scale and character of development on the opposite side of Carilla Street and in the area generally; 2. would adversely impact on the heritage significance of a number of listed heritage items in the vicinity and not meet the DCP objectives for designing development in the vicinity of heritage buildings; 3. when considered in conjunction with the recently approved development at 24A-26 Gordon Street, would isolate and adversely impact upon the heritage listed cottage at the rear of the site, 28 Gordon Street, which would be adjoined on all 3 boundaries by residential flat buildings; 4. contained poorly designed units; and 5. would result in unacceptable impacts on residential amenity of adjoining properties, in terms of visual bulk, overlooking/privacy and loss of sun light/overshadowing. Particular concern in this regard was raised by residents of 15 Carilla Street and 24 and 28 Gordon Street.
3. A number of residents suggested that the development should be revised to comply with LEP Amendment 5 which restricted the height to 11m.
4. Concerns were also raised in terms of traffic impacts and impacts from excavation. However, these were not matters considered by the Council or the experts to be of concern, or were matters which the experts agreed could be addressed by relevant conditions.

Evidence

1. The Court heard expert evidence from: For the applicant Ms Brennan, town planner Mr Phillips, heritage consultant Mr Smith, urban designer For the Council Mr Toohey, town planner Ms Hill, heritage consultant Ms Castellanos, urban designer.

Issues in Contention

1. As a result of the series of amendments to the plans, a number of contentions and issues between the experts had been resolved in that: there was no longer a concern with security and service areas provided an appropriate security gate was installed; garbage collection could be dealt with as a condition of consent as could the provision of adaptable units; and the contention of insufficient information was no longer an issue.
2. The key issues that remained were: 1. Bulk and scale in terms of height, contextual fit and built form (including building separation and setbacks) 2. Site amenity 3. Overshadowing 4. Open space 5. Apartment layout including solar access 6. Heritage.

Bulk and Scale in terms of height

1. All experts agreed that the maximum LEP height of 26m and Floor Space Ratio (FSR) of 3:1 are not able to be achieved on the site given the contextual, heritage and urban design constraints as well as having regard to the LEP Amendment 5 lesser controls now in force in the area. However, they disagreed on whether the proposed development satisfactorily addressed the constraints. Their disagreement centred on whether the height, bulk and scale of the development would "fit in" with the existing and desired future streetscape.
2. The planning experts agreed that a 6 storey building was not an appropriate outcome on this site. Ms Brennan was of the view that: 1. A part 4 part 5 storey building is a better outcome and is consistent with the height of the apartment buildings to the south at 15-17 Carilla Street and 41-43 Railway Crescent which are dominant features in the existing streetscape. 2. The revised massing of the building sits comfortably on this site due to the stepping in building height from 5 to 4 storeys then to 3 storeys. The 3 storey element is well below the former and current height controls and provides a transition in height to future development that is likely to occur to the north of the site under LEP Amendment 5 planning controls. 3. The overall building height is well below the applicable LEP control of 26m and the massing of the building below the applicable FSR of 3:1 and the Amendment 5 FSR of 1.5:1. Accordingly, the scale of the building is suitable and what is anticipated by the planning controls.
3. Mr Toohey accepted that a part 4 and part 5 storey building in theory could achieve a suitable form of transitional development. However, this relied upon observing a number of key design elements. These included the overall height not exceeding the ridge height of the RFB adjoining to the south at 15 -17 Carilla Street and the fourth and fifth storeys being well setback in order for the upper storeys to achieve a recessive appearance. He was of the view that the current plans fail to observe these key design elements and as such the design was incompatible with the existing and future character of the surrounding area.
4. Mr Toohey was also of the view that the proposed height did not achieve a transitional form of development and this would likely result in an undesirable precedent. Ms Brennan expressed the view that, due to the reduced height and FSR proposed relative to what the LEP permits, and given the current controls for the area (now in effect under LEP Amendment 5), the proposed development would not create an undesirable precedent.
5. The urban design experts also disagreed on the appropriateness of the proposed height. Ms Castellanos considered that the proposed height (which the parties agreed in evidence was at its maximum, 15.94m other than the lift overrun which was to 16.2m) would result in a building significantly higher than the existing development within the area and higher than the future development that would be subject to a 11m height limit. The applicant argued however, that if it was marginally lowered it would be the same height as the adjoining RFB at 15-17 Carilla Street. Ms Castellenos did agree that, if the fifth storey wasn't visible from the street, it could be acceptable.
6. The urban design joint report showed the current heights in the precinct which are generally 1-2 storeys to the east of Carilla Street. Ms Castellanos argued that: 1. The recently adopted heights for the precinct will ensure that the future development to the north will have a maximum of 4 storeys (3 storeys + attic or a partial fourth storey) therefore, the proposal at 5 storeys will be a taller element in the street. 2. At 5 storeys, the proposed development will be an anomalous development in the street and have an unacceptable visual impact. 3. The proposal had the opportunity to contribute to the existing as well as the future character of the precinct, if it were to observe the likely development height that is envisioned for this part of the precinct. 4. The most significant issue is that the development will have a poor relationship with the lower scale development to the east as it does not provide a sympathetic transition in height.
7. Mr Smith argued that: 1. The parapet heights are within the limits recommended by the urban design experts in a previous joint report where it was acknowledged that this development could exceed the height limit; 2. An acceptable outcome is one that transitions from a 5 storey form that is approximately the same height as the ridge of the RFB to the south and stepped to 4 storeys then 3 storeys closer to the northern boundary. This stepping would provide a successful transition between the more substantial development to the south and the future development to the north that is subject to the 11m height limit; 3. The highest portion of the adjoining RFB at 15-17 Carilla Street is 15.51m and the 400mm additional height proposed for the subject development would be indistinguishable relative to the height of its southern neighbour; and 4. Whilst the partial fifth storey may be an anomaly in the street, the height of the building wasn't.
8. Ms Castellanos advised the Court that her previous consideration of a fifth storey was dependent a number of key factors not met, including: 1. the maximum height of the parapet not exceeding the ridge line of the development at 15-17 Carilla Street whereas it is exceeded by nearly 0.5m and the proposal stepping with the topography; 2. heritage considerations; 3. the potential contextual fit of a fifth storey in terms of close distance views across the street which have since been thoroughly interrogated as shown in the joint report. It her opinion, the long distance views are more flattering on the proposal than those across the street and these should have been provided as part of the previous joint report; 4. the setback above the street wall height shown in the former joint report was 3m, which contributed to more recessive upper fourth and fifth storeys. This has now been reduced to 1.4m (agreed at the hearing to actually be 1.6m), which makes the upper levels more apparent from the public domain and less recessive; and 5. the proposal shown in the former joint report had a 6m setback to all boundaries, which made the proposal's footprint generally smaller when perceived from the streetscape.
9. The fact that each of these conditions had not been met and that the bulk of the proposal was, in Ms Castellanos' view, now larger and bigger from that considered by the experts previously, makes the consideration of a fifth storey "less meritorious".

Bulk and scale in terms of contextual fit

1. The parties agreed that, to the east of Carilla Street, the character is 1-2 storey dwelling houses whilst to the south it is 3-4 storey multi-unit development. Further that development to the north is likely to be 3-4 storeys in the future in order to maintain a sympathetic street wall scale to the properties on the eastern side of Carilla Street.
2. In terms of "contextual fit", Ms Castellanos reiterated her concerns that the proposed height of the development would result in a building that is significantly higher than existing development within the area and higher than the future development that would be subject to an 11m height limit. In her view, such a significant departure would result in a poor contextual fit with the existing 1-2 storey dwellings across the street.
3. Ms Castellanos also raised the following concerns in terms of "contextual fit": 1. The articulation of the proposed facade above the street wall height is only setback 1.6m which means that the proposal will be perceived as 5 storeys whilst the lack of a meaningful setback erodes the effectiveness of the street wall height to conceal the upper levels. 2. The fourth and part fifth levels will not be sufficiently recessive to mitigate the visual impacts of its bulk and scale. 3. The building will be very prominent from the vantage points across the street. She provided images to demonstrate that, in her view, the proposed bulk will have a significant impact on 16 and 18 Carilla Street due to the proximity of the proposal directly across the street with impacts also to 8 and 10 Carilla Street. Appendix B of the joint report shows that the building will be visible from the public domain a block away and will be prominent above the lower scale built form in the rest of the precinct. 4. The proposal does not respond to the existing built form to the south at 15-17 Carilla St and 41-43 Railway Crescent, which are 3 storey + attic developments with 15-17 Carilla Street having a gable roof form. In contrast, the proposal has a flat roof. 5. The proposed reduced separation distance to the north (4m) will also contribute to a greater sense of bulk and scale together with the uncharacteristically long facade at 38.5m. 6. The development should provide an adequate built form transition to the lower scale development across the street but also not dominate the built form to the south as the massing of the adjacent development is much lower in total height and in configuration.
4. By contrast, Mr Smith considered the proposed contextual fit to be acceptable given there was a transition to future development to the north. He argued that: 1. The 3 storey base continues the established 3 storey street wall to this side of Carilla Street and the upper levels are successful in their treatment. 2. The setback from the main facade is adequate to read as separate to the podium base and this is enhanced by the change of materials. 3. It is not necessary to hide the fourth and fifth storeys from view in order to provide a contextual fit, nor is it necessary that this development be lower than the adjoining building to provide a successful transition. The Sydney skyline is characterised by development of uneven height and when viewed from a distance the proposed development provides a general level of consistency in height and would not be considered out of character. 4. In the immediate context a dichotomy is created between the east and west side of the street. This is a long established character that is a result of a long history of the planning controls that applied to the respective sides of the street. 5. The upper levels of the proposed development are broken down into smaller elements which transition in height with the lift over run located in the centre of the building and generally not visible from the street. 6. In terms of the façade, its length had been broken into three elements each of approximately 12m whereas the façade at 15-17 Carilla Street had an unbroken 22m long façade. Furthermore, whilst he couldn't guess what form future development on the same side of Carilla Street may take, Mr Smith stated that the LEP Amendment 5 Planning Proposal clearly envisaged it would comprise larger and longer buildings than exist today.
5. In submissions, Mr Clay advised that the savings provision was a requirement of the Department to ensure that DA's which were already in the system had the benefit of the existing controls and the controls therefore have to have some meaning and can't be ignored. Notwithstanding this, the applicant was not seeking the maximum height allowed by the controls and was seeking substantially less Floor Space Ratio (FSR) than permitted and even less FSR than is still permissible under the LEP Amendment 5 provisions. Whilst not arguing the applicable controls were a development right, Mr Clay stated that they were at least a parameter in which to consider what was proposed: they allowed a height of 26m (against a maximum height proposed of less than 16m) and an FSR of 3:1 against a proposed FSR of half that at 1.55:1.
6. A number of the experts referenced the recent Court approval for 24A-26 Gordon Street at the rear of the site proposed by the same applicant (Yassine Holdings Pty Ltd v Burwood Council (No. 2) [2015] NSWLEC 1188). In that appeal, Mr Smith noted that the Court had approved a 4 storey RFB with changes recommended by the Council's heritage expert, Ms Hill. That site was located between two heritage dwellings and fronted the same street as those dwellings. In that development, the Council experts accepted that, with the changes offered by the applicant, the proposal would "fit in" and have an acceptable impact on the significance of the heritage items.
7. Commissioner Tuor accepted in Yassine No.2 that, with the changes offered by the applicant, the proposal addressed the contentions of the Council and met the intent of the LEP recognising the role of its savings provision and the existing planning controls. She concluded that that proposal, even as amended, would have impacts, particularly on 28 Gordon Street, but that these impacts would be consistent with those envisaged under the planning controls and were agreed by the experts to be acceptable.
8. Ms Castellanos noted in Yassine No. 2 that Commissioner Tuor was of the opinion that a 3m setback was insufficient to make the levels above the podium recessive on a 5 storey proposal at the rear of the subject site, and that the current proposal only has a 1.6m setback.
9. Mr Smith disagreed with Ms Castellanos' analogy with the approved development at 24A-26 Gordon Street. In his opinion, that development is in a very unique context being located between two heritage items whereas the proposed development is immediately adjacent to an RFB and sites capable of development as RFBs. There is therefore no need to make the top floors so recessive.
10. In terms of Ms Castellanos' concern at the length of the façade at 38.5m, the applicant in submissions noted that DCP controls for development in the R1 zone at clause 4.1.2.1, provision P5 permitted a maximum frontage length of a building facing a street of 45m. The façade therefore complied with this provision.

Bulk and scale in terms of built form including building separation and setbacks

1. The parties agreed that the existing context provides for a smaller 'fine grain' scale built form and that distant view were as important as the immediate streetscape, as from the east this building will be part of an evolving skyline to the west of Carilla Street. They disagreed as to whether or not the proposed built form was appropriate, particularly in terms of its setbacks.
2. Ms Castellanos raised the following specific concerns: 1. The RFB is only setback 4m from the northern boundary with the adjoining existing dwelling at 3 Carilla Street only 1m away from this boundary. This dwelling has windows on its southern façade as well as a back yard and there would be likely privacy issues from the balconies of the proposed development overlooking the side boundary. 2. The lack of adequate separation sets a precedent for future development to the north of the site and, if emulated by future development to the north, will adversely impact the fine grained rhythm of the street. 3. The reduced separation distance leads to a reduction of the area for planting and the overshadowing of the proposed units to the north on the site. 4. The long façade (38.4m) will diminish the overall desired future character of the street. The long elevation is at odds with existing facades which range in length some 20 to 22m to the south of the proposal to 8, 10 and 12m to the north on the same side of the street. Whilst the northern properties in particular have redevelopment potential, the dwellings on the opposite side of the street have low redevelopment potential due to the applicable controls and these frontages will remain in the foreseeable future. These properties have frontages that vary from around 8-14m. The existing dwellings directly across the proposal at 12 and 14 Carilla Street have especially narrow frontages approximately 6m wide. The proposal's frontage at the lower levels will therefore be out of context with the street. 5. The uncharacteristically long elevation is further compromised by the lack of articulation of the upper two levels. The recessive element is not sufficiently setback to disassociate this volume from the rest of the built form below. The lack of ordering principles in the arrangement of windows and fenestrations does not have any apparent relation to that of the lower levels. 6. The redevelopment potential of the site is maximised at the expense of the future desired character of the street and the amenity and development potential of the neighbour to the north. 7. The proposed metal cladding appears to be highly reflective and will call unnecessary attention to an already very prominent volume. 8. The western façade will also have a dominant visual effect on the heritage cottage at 28 Gordon Street.
3. In contrast to the Council's concerns, Mr Smith considered the built form to be appropriate for the context. He argued that: 1. The podium has been appropriately broken into three sections with recesses as agreed in the previous joint urban design report. This makes each element more distinctive and representative of a finer grain streetscape. 2. The upper levels are broken into two elements to break up the skyline. The connecting element at Level 3 is recessed to clearly read as two separate elements. 3. The development to the south that presents a 20-22m facade does not respond to the finer grain in the way the proposed development does as there is no relief provided in the articulation of that façade to divide the building into smaller elements. 4. The setback at the upper levels is complimented by the change in material to provide adequate articulation between the podium and the upper levels in order to provide a defined base and top. 5. The massing at the rear is sufficiently broken up to provide variety, interest and layering and acts as a backdrop to the dwellings on Gordon Street. When combined with the change in materiality it provides visual interest and a highly articulated built form. The roof design also provides appropriate form and articulation and interest in the skyline with the changing depth and heights across the site. 6. Screening landscape will assist with ensuring that the built form is appropriate when viewed from Gordon Street. 7. The 4m setback proposed to the northern boundary is the same setback provided by development to the south (15-17 Carilla Street) to its northern boundary. The proposed development demonstrates how adequate privacy can be achieved between apartments when reduced setbacks are provided. 8. The proposed development more than complies with the DCP requirements for side setbacks at the northern boundary for the ground, first floor and third floor. The second floor does not comply by 1m. It is considered that providing a consistent setback for the first three floors of the podium is a more desirable built form outcome - rather than a building that steps back differently at each level. Further, privacy is managed by orientating windows away from the boundary and constraining the exposed edges of balconies to the extremities of the building footprint for only a minimal distance. 9. The northern setback satisfies the objectives within the DCP and the Residential Flat Design Code (RFDC) in that: it is characteristic of the side setbacks of other RFBs in the street; visual and acoustic privacy is managed through the use of windows angled away from the boundary; there are no impacts of additional overshadowing on private or shared active space of adjoining development; and sufficient deep soil is provided on the site and is available within the side setback. The 4m setback is also sufficient to plant screening vegetation that can reach mature heights appropriate for the area.
4. Ms Brennan also considered that the built form was appropriate. In summary, her evidence in the planning experts joint report was that: 1. A part 4 and part 5 storey building is a suitable outcome that is compatible with the dominant scale of existing development in Carilla Street and provides a transition in scale to enable compatibility with future development. She considered the Council's planning expert, Mr Toohey, had acknowledged that a part 4 part 5 storey building which successfully addressed architectural and heritage related criteria could deliver a good design outcome. 2. The revised building massing responds specifically to the built form and scale of existing buildings in Carilla Street and with the recent Court approved development in Gordon Street. 3. The building sits within an immediate context that is dominated by apartment buildings of a similar height and is also within the visual catchment of substantial building forms that form part of the Town Centre. 4. The Revision D plans reflect the massing that was previously agreed with the Council's expert planners as it was considered an appropriate planning outcome for the site. 5. There are no windows facing the northern boundary and the separation distances complied with the RFDC with the exception of the balconies to Levels 1 and 2. The planning experts agreed that the edges of the balconies that face the north at Levels 1 and 2 should incorporate fixed louvres to address potential overlooking and that this could be addressed by a condition of consent. 6. There is a very distinct change in building typology with the existing and future character of both sides of Carilla Street. The eastern side is located with the R2 zone and is characterised by single dwellings. The western side is currently dominated by two large apartment developments at the southern end of Carilla Street which share the same R1 zoning. Given the planning controls, the north western side of Carilla Street is likely to undergo change and result in higher density development. The revised massing of the building recognises this and provides for a stepping in building height from 5 storeys at the northern end down to 3 storeys at the southern end. This transition will ensure the development is compatible with the existing and future character of Carilla Street. 7. The setbacks to the upper levels are sufficient to reduce the massing of the building. The transition in height and the setbacks collectively result in a building that responds to the larger building mass to the south (15-17 Carilla Street and 41-43 Railway Crescent) and future lower scale development to the north. A building of this scale is not out of character in this streetscape. 8. The development has an FSR of 1.44:1 which is significantly below the massing anticipated by both the current FSR control of 3:1 and the LEP Amendment 5 control of 1.5:1.
5. Finally, in submissions, Mr Clay considered that maintaining the 3 storey street façade, as is proposed, is the key as it meets the intended future form of development for this side of Carilla Street even though the LEP allows higher development. He stated that the development had been substantially redesigned in response to LEP Amendment 5 considerations but meaning had to be given to the intent of the LEP savings provision which does not intend the Amendment 5 controls to apply to this DA. He noted that the immediately adjacent neighbour to the north had not objected to the development and any future redevelopment of that property would likely focus to the east and west, not the south, similar to the proposed development.

Site amenity and overlooking

1. As previously indicated, Ms Castellanos was concerned that the 4m setback to the northern boundary would have adverse impacts for the amenity of a number of balconies on the northern side of the development as, in order to mitigate any potential privacy issues, these balconies will have to provide screening devices reducing the level of solar access to these units. Should the adjacent property to the north redevelop with a similar setback distance to the proposal, she was concerned this will potentially result in increased overshadowing due to the proximity of the two developments.
2. Mr Smith did not accept that there would be detrimental impacts on privacy or future development to the north. He stated that the general orientation of the living areas and private open space is to the west, and any overlooking would likely only occur to the rear communal space of any future adjoining development. Further he argued there was little material difference in terms of overlooking from a balcony 4m or 6m from the boundary. However, the applicant would accept screening of the balconies if this was considered necessary. He did not consider that such screening would necessarily impact on units receiving the required solar access.
3. The planning experts agreed that, given the requirement for a 1.8m boundary fence to the northern boundary, the location of the open space to the ground level was suitable from an amenity perspective. They noted that both units are primarily oriented towards the street or the rear and not towards the northern boundary but agreed that the northern edges of the balconies to Levels 1 and 2 should incorporate fixed louvres to avoid any overlooking or privacy concerns.

Overshadowing

1. The parties disagreed with the extent and impact of overshadowing associated with the development. Ms Castellanos claimed the reduced setback to the north increased the overshadowing to the communal open space of 24A-26 Gordon Street and that of 28 Gordon Street at 9:00am. This is particularly critical for 28 Gordon Street "as the morning sun is the only time that this heritage property will have any solar access to its rear garden" being overshadowed during the rest of the day by the approved development at 24A-26 Gordon Street.
2. Mr Smith stated that there is no difference to the solar access of the communal open space at No 24A-26 Gordon Street associated with the reduced side setback. The communal open space of that property is located to the north-west of the proposed building and is not at any time between 9am and 3pm in winter shaded by the proposed development. At 9am mid winter the only difference between a 4m and 6m setback to the northern boundary is the additional shading to the south-eastern part of the landscaped setback of the development at 24A-26 Gordon Street. This is not private open space or part of the active communal open space.
3. Ms Brennan supported Mr Smith's evidence and both planning experts agreed that the overshadowing impact on 24A-26 Gordon Street complied with the DCP.

Open Space

1. The planning experts noted that the amount of landscaping provided was 1.3% less than the amount required by the DCP. However, they and the urban design experts agreed that the communal open space provided meets the objectives if not the numeric requirements of the DCP. The same experts also agreed that mature planting should be provided along the western boundary to provide a landscaped buffer, and that this could be a condition of consent.
2. Ms Castellanos queried whether the required amount of deep soil had been met given part was above the car park and that species should be proposed which could thrive in this location. Mr Smith said there was no definition for deep soil landscaping in the DCP but the area provided satisfied the objective of having sufficient depth for species that would serve a screening role. He suggested a condition of consent could specify what was required.
3. In evidence, the experts agreed that the amount of open space provided was generally adequate subject to conditions on planting in the deep soil zones and along the western boundary.

Apartment Layout and Solar Access

1. Ms Castellanos doubted that the development could comply with the RFDC requirement for solar access to 70% of the proposed apartments. Mr Smith indicated that the living room and bedroom of one of the apartments (301) could easily be swapped around which meant 29 (or 72%) of apartments met the required solar access and therefore the requirement. A condition to this effect was proposed accordingly.
2. The urban design experts agreed that apartment 302 could be redesigned to achieve a better layout and a condition to this effect was agreed accordingly.

Heritage

1. The Council was of the view that the development application should be refused because the proposed development would have an adverse impact on the heritage character of the area and the heritage significance of the dwelling houses listed as Heritage Items located to the rear and in the vicinity of the site. In particular, it was Ms Hill's view that the proposal was inconsistent with cl 5.10 of the LEP and did not comply with the provisions and objectives of part 4.7 of the DCP.
2. Ms Hill considered that the proposed development would dominate and have an adverse impact on the Heritage Items in the vicinity as: 1. The podium design of the proposed development does not adequately respond to the scale and character of the Heritage Items and will result in excessive visual bulk. The podium design and building separation do not provide a sensitive or acceptable transition between the height and scale of the adjoining Heritage Items. This will cause the proposed building to dominate and diminish the scale of the Items. 2. The design of the proposed development does not respond to the proportions, architectural expression and form of the Heritage Items, particularly their pitched roof form, varied height, and window proportions. 3. The proposed development will have a particularly negative impact on the amenity of the heritage item at 28 Gordon Street due to overshadowing, loss of solar access and visual and acoustic privacy. When considered in conjunction with the developments approved at 24A-26 Gordon Street, the effect of both developments would be to isolate 28 Gordon Street and adversely impact its amenity.
3. In joint conferencing the heritage experts agreed that the bulk of the development could be reduced by a number of methods including further articulation and recessing upper floor(s). However they disagreed on whether the recessed floors could form a fourth floor or a fourth and a partial fifth floor.
4. In summary, the heritage experts disagreed on the following 4 issues. Issue 1 - Whether the development will adversely impact on the adjoining Heritage Item at 28 Gordon Street? Issue 2 - Whether the development will impact upon other Heritage Items in the vicinity including: Gasgoyne (or Gascoyne) at 22 Gordon Street, semi-detached houses at 23 and 25 Gordon Street, and Aberfoyle at 24 Gordon Street? Issue 3 - Whether the development provides an appropriate response to its context and supports the desired future character of the area and whether it provides an appropriate precedent for future development of the precinct? Issue 4 - Whether the development supports the desired future character of the area and whether it provides an appropriate precedent for future development of the precinct?

Heritage Issue 1 - Impact on 28 Gordon Street

1. Both parties agreed that the impact of the proposed development on the heritage listed cottage at 28 Gordon Street to the rear of the site was a relevant consideration.
2. In the heritage expert joint report, Ms Hill considered that the development would dominate and isolate the cottage and completely remove it from its original context. She considered that the detrimental impacts of the development were to the cottage's amenity and scale which would not encourage its retention or ensure its long term viability as a residence. In particular, she was concerned that: 1. The excessive and uncharacteristic scale and bulk of the development will impact upon an ability to understand the significance of the cottage as a good example of a workman's cottage built at the tum of the century located close to the railway. 2. Large developments, with no transition to lower scale, either side of the cottage will remove its setting and degrade its heritage values. 3. The development will dominate existing views to and of the cottage particularly from Gordon Street with the development forming a backdrop to the cottage when at present that backdrop is vegetation. In this regard, the development has an inadequate rear setback which will restrict the ability to provide effective landscape screening as a more appropriate setting for the cottage.
3. In response to Ms Hill's contentions, Mr Phillips contended that: 1. The development is more than 30m behind the front building line of the cottage and 14m from its rear building line. Whilst the development will be visible from the street this will primarily only be along the view corridors to each side of the cottage. Therefore, the visual impact will be limited and will not completely remove the Item from its original context. 2. The front elevation of the cottage is the key element, not the rear. 3. The Item is viable as a dwelling and self-contained within its site. Ideally the cottage would be located within a context of other cottages, however this context has changed and this change is expressed in the desired future character of the area. The scale and bulk of the development will not impact upon an ability to understand the heritage significance of the cottage as a good example of a workman's cottage built at the turn of the century located close to the railway as it remains a cottage close to the railway and can be clearly understood a good example of a worker's cottage. 4. Views within Gordon Street to and from the cottage will only be marginally impacted by the proposed new development, which will form a backdrop to it. The present backdrop is vegetation and this backdrop can be maintained through appropriate planting of screening in the deep soil planting zone to the rear of the proposal. In evidence, Mr Phillips took the Court to the landscaping of the RFB to the south of the cottage to demonstrate how trees could screen the impact. 5. The other experts agreed that four storeys would be acceptable, yet the fifth storey would only be visible from the rear of the cottage not from the street, and not from other Heritage Items.
4. Mr Seton queried why the applicant considered that 6 storeys would have an unacceptable impact but 5 storeys wouldn't particularly as the fifth storey component was on the highest part of the site adjoining 28 Gordon Street, which he described as "a sensitive and isolated heritage listed cottage".
5. Mr Clay noted that the applicable controls for the site allowed a development of up to 26m on the site immediately behind 28 Gordon Street and that was substantially different from a development which, at its highest, is less than 16m as was proposed. The applicant therefore has had regard to the impact on 28 Gordon Street. He argued that the Council in its Planning Proposal identified where Heritage Items were in the Amendment area and still proposed redevelopment of RFBs adjoining these Heritage Items. He submitted that an RFB is an expected backdrop building to the cottage whether at 11m or at 16m. However, he argued that the impact on the heritage values of the cottage as a result of this backdrop development are not significant and that it is a question of impact not of visibility.

Heritage Issue 2 - Impact on other Heritage Items in the vicinity

1. Ms Hill contended that the proposal is not compatible with the bulk, height and scale of the Heritage Items in the vicinity which are 1-2 storeys (in response to the original Victorian subdivision of the area).
2. In Ms Hill's view, the uncharacteristic scale and form of the development at 5 storeys will dominate nearby Heritage Items in that: 1. Views within 24 and 22 Gordon Street will be detrimentally impacted. 2. Views within Gordon Street to and from Heritage Items at 22, 24 and 28 Gordon Street will be detrimentally impacted. 3. The balconies from Levels 4 and 5 of the development would be visible from the rear yard of 24 Gordon Street and would devalue the heritage value of the item as well as result in overlooking. 4. Views within, to and from 1 Carilla Street will be detrimentally impacted due to its uncharacteristic scale, which is far in excess of the 2 storey fine grain pattern of Carilla Street. In this regard, development at 41-43 Railway Crescent and 15-17 Carilla Street related more to the scale of the railway corridor than the desired future character of the street which is defined by an 8.5m maximum height limit on the eastern side and an 11m maximum height limit on the western side. 5. The proposal will create an undesirable backdrop to Heritage Items in adjoining streets.
3. Mr Phillips noted that the proposal has a 3 storey podium with a further storey set back and a partial fifth storey, all articulated. This he considered to be an appropriate bulk and scale in relation to the existing adjacent RFB and the 1-2 storey dwellings in the vicinity. Furthermore, the design involved careful management of bulk concentrated to the south adjacent to the existing RFB transitioning to 3 storeys adjacent to its 2 storey neighbour to the north.
4. In terms of the development's impact on specific Heritage Items in the vicinity, Mr Phillips argued as follows: 1. Gascoyne, 22 Gordon Street - when viewed from the north along Gordon Street, the proposal may form a backdrop to Gascoyne but this Item backs onto 1B and 1C Carilla Street, it is 2-3 lots further along and to the back of the subject site. The visual impact of the proposal will be limited and acceptable because of distance and vegetation in the intervening lots. 2. Semi-detached houses, 23 and 25 Gordon Street - when viewed from either direction along Gordon Street these semis are viewed away from the subject site and their visual context is unaffected by the proposal. 3. Aberfoyle, 24 Gordon Street - when viewed from the north along Gordon Street, the proposal will form a partial backdrop to Aberfoyle but, as Aberfoyle is directly adjacent to the approved 4 storey RFB at 24A-26 Gordon Street, that building will form the predominant background to the Item. Given the extra distance between the subject proposal and the Item, a 5 storey articulated height would be acceptable and he was doubtful there would be any overlooking.
5. In Mr Phillips view, those Heritage Items that are a not in the immediate vicinity of the proposal are no more affected by it than they are by non-contributory buildings that are also in the vicinity. This ranges from houses of more recent construction that are unsympathetic to the Items to large RFBs, permitted in the area for some time now. He accepted that the area has a number of Heritage Items, but noted that this is not a Conservation Area, which would imply a greater consistency of period housing stock or special characteristics.

Heritage Issue 3 - Context

1. Ms Hill noted that the Heritage Items within the vicinity of the site are 1-2 storeys and stated that the original character of the area derives from 1-2 storey freestanding and semi-detached residences in garden settings from the late Victorian to Post War period. The average original block width is around 10m and façade widths around 9m.
2. She accepted that, more recently, the amalgamation of sites near the railway has resulted in larger scale 3 storeys plus attic development at Carilla Street and Gordon Street near Railway Crescent and that the desired future character of the western side of Carilla Street is 3 storeys. However, the desired future character of the eastern side of Carilla Street remains 2 storeys.
3. As with the Council's urban design and planning experts, Ms Hill took the Court to the desired future character of the area as reflected in LEP Amendment 5 and to the fact that the eastern side of Carilla Street retains its maximum building height of 8.5m and maximum FSR of 0.55:1 which will encourage retention of existing built form.
4. Ms Hill considered that the special character, integrity and coherence of the streetscape and area would be degraded through the uncharacteristic scale and bulk of the proposal within a low scale residential streetscape and that the historic links of early residential development in Carilla Street to the railway would be impacted with the development not responding to or interpreting the original subdivision pattern.
5. In Ms Hill's view, the changes that have occurred in the area over the latter half of the Twentieth Century are sympathetic to the original character of the area and to the significance of Heritage Items, due to similar footprints, scale and form. More recent large scale development at the southern end of Carilla and Gordon Streets responds to the existing character by use of attic style development and pitched roofs and breaks in the façade to create a 2-3 storey domestic scale. In contrast, the scale of the upper levels of the development is disproportionate to the street.
6. Because the façade extends 38.5m, Ms Hill considered that the development presents as overly long and uncharacteristic of the pattern of built form in the streetscape. Details she considered uncharacteristic included the: building's articulation and modulation; roof form; hard surface to the street frontage in a streetscape which features garden settings; and extensive glazing and use of aluminium screens rather than the masonry characteristic of surrounding development.
7. In contrast, Mr Phillips was of the opinion that the proposal would not dominate the streetscape in that: the 3 storey podium continues the general building height established by the adjacent RFB; the floor above is set back and the partial fifth storey is recessive; and the design is a better solution than dormers set in an uncharacteristically large roof form, as seen in the adjacent RFB.
8. Mr Phillips noted that the eastern side of Carilla Street retains its maximum building height which will encourage retention of existing built form and that the desired future character envisions RFBs along this side of Carilla Street. The RFBs .adjacent to the site were constructed some time ago and represent a time when it was believed that floor space contained within a roof form would have a lesser impact than additional storeys set back from the lower portions of the building. In his view, the outcome was uncharacteristic bulky roof forms and atypical dormer windows or rooflines. In contrast, the typology proposed is to use the well-tried form of a 3 storey podium with 1 or 2 storeys set in above the podium. This works with the established character defined by the 1-3 storey scale and form of the existing buildings in the area and the 4 storey plus RFBs with their bulky roofs adjacent. In his view, the articulated 2 storeys on top of the podium will fit in with the desired future character of the area noting finally that new development cannot respond to or interpret the original subdivision pattern.

Heritage Issue 4 - Desired future character and precedent

1. This issue has largely been dealt with in the preceding section. In the joint report, Ms Hill repeats her concerns that the proposed development does not respond to the desired future character of the area as reflected in LEP Amendment 5 and given the controls for the opposite side of the street. In essence the concern is that the development will be out of character in a streetscape which will remain predominantly 1-3 storeys in scale and will therefore dominate surrounding residences and the suburban character of Carilla Street established by the existing early Twentieth Century development.
2. Ms Hill considered that infill design should recognise the predominant scale (height, bulk, density, grain) of the setting and then respond sympathetically and the impacts of an inappropriately scaled building cannot be compensated for by building form, design or detailing. In her view, the proposal would therefore set an undesirable precedent for future development in the area.
3. Mr Phillips contended that, whilst the desired future character of the area may be reflected in LEP Amendment 5, it is not ·explicitly stated as having particular characteristics. He maintained that the proposal as it has been amended, is carefully articulated with its upper storeys set back to reduce any perceived dominance. The proposal is of greatest height towards 15-17 Carilla Street, a 4 storey RFB with a large pitched roof. The development steps down in height to 3 storeys towards 3 Carilla Street, a 2 storey building, thus affording a totally acceptable transition in height of 3 storeys to 2 storeys. In Mr Phillips view, the proposal has sympathetic scale, character and form through the careful placement of bulk and through clear articulation of the elevations and will provide a desirable precedent for future development in the area.

Findings

1. The key issue in this appeal is that, notwithstanding the LEP savings provision which allows the former LEP controls to apply to the DA, there are now substantial reductions in height and FSR in the controls applying to the area and to this site. In submissions, the Council argued that these controls, and the desired future character for the area that would result, are entitled to be given considerable weight.
2. The controls envisage future development on the western side of Carilla Street to be no more than 3 or part 4 storeys which is more than 4 metres lower in height than what is proposed for the subject site. Furthermore, development on the eastern side of Camilla Street will remain at a maximum of 2 storeys, some 7 metres less than what is proposed for the site.
3. However, this consideration must be balanced against the fact that a proposal could technically be developed under the LEP 10m higher than what is proposed. All experts agree this would not be appropriate and it is not what is proposed.
4. Mr Clay quoted from the Council's Planning Proposal document in which the savings provision was proposed by the Council "to ensure that any application lodged prior to the finalisation of (this) Proposal will be assessed against the planning controls in force immediately prior to any amendments by this Planning Proposal". Mr Clay submitted that the Council were not in fact assessing the DA against those controls but were overly focused on the controls and the future intended character of the area in the new controls, which was contrary to their advice to the Department.
5. I agree with Mr Clay in this regard. Whilst having to have regard to the provisions of LEP Amendment 5, the savings provision clearly requires the consent authority to determine the application not on those controls and the intent of that Amendment but on the provisions as they existed prior to the Amendment. In my view, the Council has focussed on the intended future character and non-compliances with LEP Amendment 5 controls rather than the development's compliance with the required and applicable controls.
6. In contrast, the applicant has had regard in the amended design now comprising the DA to the LEP Amendment 5 controls, to the site's context, and to amenity considerations, and amended the proposal accordingly seeking, not unreasonably in my view, approval to a development which generally not only complies with but is substantially less than the controls allow.
7. By example, whilst the proposed maximum height of the development is around 16m and 5 storeys, this is only over part of the site with the fourth and fifth storeys recessed. At its highest point the development is not significantly higher than an existing RFB in Carilla Street immediately adjacent to the southern boundary of the site which is also not the form of development envisaged by the new controls applying to this side of Carilla Street. It however, exists. Furthermore, an RFB has recently been approved by the Court at the rear of the site, at 24A - 26 Gordon Street which, whilst of a lesser height, is still 4 storeys in part on a site constrained by adjoining lower scale heritage listed dwellings on both side boundaries.
8. The controls for development in Carilla Street, even as recently amended, allow for and in fact encourage a diversity of dwelling types and facilitate redevelopment on the western side, including for RFBs adjoining Heritage Items, which have and will likely continue to change the character of the street. I accept the applicant's submission that the changing character of the street is a consequence of the controls the Council has adopted for it. I understand that the Council does not now support those controls and sought to address the redevelopment that has and could occur through LEP Amendment 5 accordingly, but the Department has not permitted this to the extent sought by the Council (or the local residents) and I am bound to consider the controls that do apply.
9. I am of the opinion that the development has been designed having regard to the impact on its neighbours. It steps down in height so that it is highest (at up to 5 storeys) at its northern end where it adjoins an existing RFB not of a dissimilar height and lowest (3 storeys) at its southern end adjoining an existing dwelling which itself could be redeveloped to the same 3 storey height under the LEP.
10. Given that the specific provisions of the LEP savings provision which maintains the former controls for height and FSR for the site, I am of the view that the development is a reasonable compromise. The zoning of the site under LEP Amendment 5 has not changed and it continues to permit RFBs on the western side of Carilla Street albeit at a lesser height and scale than the former controls. The development does not seek anywhere near the height permissible in the LEP albeit that it exceeds what the LEP now permits and is therefore understandably not supported by either the Council or nearby residents.
11. If the LEP Amendment 5 controls were meant to apply to the site then the savings provision would not be in the LEP. Given this is not the case, it is not reasonable in my view that the proposed development should have to comply, or even substantially comply, with the new controls. Therefore development of the site clearly will not reflect the form of development that is now required and envisaged by the new LEP controls which will result in buildings with less bulk, height and scale in the street in the future.
12. The development has considered its context. It is situated in a street where there are, and have for some time been, different controls, and therefore different built form outcomes on opposite sides of the same street. It is located in the southern end of Carilla Street in close proximity to the railway and existing RFBs. This area has a different character to the northern end of the street where the form of development is 1-2 storey dwellings.
13. In terms of the appearance of the building, I note the Council's concern that the length of the façade at 38.5m is longer than any other facades in the street. However, I also note that the DCP allows façade lengths of up to 45m so the length is complying. It is also the case that the LEP allows future redevelopment of sites on the western side of Carilla Street for RFBs which would almost certainly have longer facades than the single dwellings that currently exist. The façade length is a feature of the consolidation of properties to create the site, which many Councils encourage, and which could well occur in the future if other properties in the street are redeveloped. The applicant has at least made some attempt to break up the façade although the DCP does not require this for a street frontage.
14. The Council did not express a concern with the 3 storey podium height or with the amount of FSR proposed. However, the Council argued for a greater setback and lowering of the top two levels. In my opinion, the expert evidence was not conclusive on what was required to screen these levels or why they should be screened. All that was agreed was that these levels should not dominate the streetscape and therefore be recessed. The only guide provided on an appropriate recess was that imposed by the Court on 24A-26 Gordon Street of 3m for the fourth storey but that was specifically required in response to the heritage constraints imposed by adjacent heritage cottages on both side boundaries of that site. Even at 3m setbacks, the applicant argued the upper levels would likely still be visible from some vantage points.
15. I accept the merits of recessing these upper levels having regard to the likely form of future development in the street but I was not persuaded by the expert evidence of the Council as to why they should not be visible at all given the site is a transition from old to new controls and from existing adjacent development in excess of 3 storeys to the south.
16. The site, whilst being in the same locality as the site the subject of the recent Court approval at 24A - 26 Gordon Street, is not in my view as constrained in terms of its relationship to Heritage Items. It is not adjoined on both sides by Heritage Items and will largely not be visible from those Items which are at the rear of the site in Gordon Street other than as a backdrop building of similar scale to its southern neighbour.
17. This does not mean that regard should not be had to the proximity of the Heritage Items as required by the LEP and the DCP even though the site is not located within a Conservation Area under the LEP. However, I consider that the applicant has had regard to the proximity of the site to heritage listed buildings to the extent that is appropriate.
18. All parties agreed, as do I, that the impact on the heritage listed cottage at 28 Gordon Street at the rear of the site is a relevant consideration. In this regard I find that there will be an impact on 28 Gordon Street but, whilst that impact is regrettable, it is largely unavoidable given the planning controls that apply and the development that has already occurred, has been approved or is permissible on each of its boundaries. It will be adjoined by RFBs on all boundaries and that is not a desirable outcome for a single storey heritage listed cottage. However, the heritage setting of this cottage has already been compromised, including how it is viewed from Gordon Street, by the existing RFB to the south. In its approval of an RFB on the adjacent site to the north, the Court has required changes to that development to minimise impacts on the cottage but it is still a 4 storey RFB, which the heritage experts found to be acceptable. A part 4 storey part 5 storey development at its rear will further impact the setting of the cottage but the proposed development is substantially less than what the controls allow and I accept Mr Phillips evidence that the views of the development as a backdrop building behind 28 Gordon Street will be limited and can at least be partially offset by landscaping at the rear, as is proposed. The proposed development should also not be penalised by the fact of the development that has already occurred or been approved adjoining 28 Gordon Street.
19. Given the circumstances, I find the impact on 28 Gordon Street is not so significant as to warrant refusal of the application.
20. In terms of the impact of the proposed development on listed Heritage Items further north in Gordon Street, I find the impact to be minimal. The backdrop view from 20 and 22 Gordon Street will largely be screened by the development at 24A - 26 Gordon Street and other development. The building will in part be visible from other listed properties in Gordon Street as are other RFB's in the vicinity but this is a consequence of the planning controls which even under LEP Amendment 5 will allow further redevelopment of at least 3 storeys at the rear of properties on the eastern side of Gordon Street.
21. I therefore can not conclude that the impacts of the proposed development on Heritage Items in the vicinity are sufficient to warrant refusal of the application.
22. I accept Mr Seton's view that one can't ignore what is on the opposite side of the street and has to have regard to the impact of the development in that context. However, the Council has already determined that there will be different forms and type of development on both sides of the street and, prior to LEP Amendment 5 and still for this DA, the controls facilitate development which is substantially different from the opposite side of the street and which would by its very nature impact and change the character of the street. That has already partially occurred at its southern end.
23. I don't however, accept Mr Seton's submission that the development is seeking to adopt a height than is significantly more than appropriate given, at its highest point it is 5m higher but still 10m lower than the current controls permit, at the street frontage it is in accordance with the LEP Amendment 5 controls, and it is of a not dissimilar height to its southern neighbour transitioning to the permitted future height of its northern neighbour.
24. Context is not just about the majority of the existing development in the street it is about the form and nature of development on both sides of Carilla Street not only now but anticipated into the future. In this regard, the applicant is not seeking to maximise the full potential of the site but is seeking at least some of what the LEP permits for this DA but not for future DA's for the site.
25. I accept the applicant's argument that this development is a reasonable balance between the past and current controls and that the development will not be any more out of keeping with development on the western side of the street than the adjoining development to the south or even potential future development to the north. There are no amenity impacts that arise from the design itself which are significant or cannot be addressed by conditions as have been proposed.
26. Furthermore, the proposal will not create a precedent for future development in the street because the new LEP controls preclude such development.
27. Finally, the applicant offered further modifications if required by the Court to make the development "approvable". This is understandable given that, if this DA is not approved, then there is no opportunity for the development to proceed other than under the new LEP controls which require a lower height than what is proposed.
28. A similar offer to further reduce the scale of the development was made by the same applicant to the Court in relation to the development at 24A-26 Gordon Street. In my view, the proposed development which I am required to consider on the subject site is very different from 24A-26 Gordon Street. It is on a less sensitive site with a different streetscape context. If the Court refused this development as it is proposed in the Revision D plans, it would largely be on the issues the Council raised in terms of the streetscape and character because it is not in accordance with the LEP Amendment 5 controls. It would not be due to any compelling concerns with the building's design or the amenity impacts on neighbours or Heritage Items in the vicinity. It would in effect give little or no weight to the saving provision and therefore not comply with the intent of the LEP.
29. In conclusion, I see no basis for requiring any further modification to the development other than what is proposed by way of conditions agreed by the parties to address specific concerns with overlooking of development to the north, the layout of some units, and to improve the landscaping.
30. The development as reflected in the Revision D plans is a reasonable compromise between what is permissible and what is intended in the future. and seeks less than one might expect from the applicable planning controls. The impacts on the streetscape, on neighbours and on Heritage Items in the vicinity are in my view acceptable and minimised.

Orders

1. The orders of the Court are: 1. The appeal is upheld; 2. The applicant is granted leave to amend development application No. DA/107/2014 in accordance with the plans in Exhibit B (Revision D plans). 3. The applicant is to pay the respondent's costs associated with amending the application from the Revision B to the Revision D plans arising under s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 4. The development application (DA/107/2014), as amended in the Revision D plans for the demolition of the existing dwellings and construction of a part 4, part 5 storey residential flat building at 5-13 Carilla Street, Burwood, is approved, subject to the conditions in Annexure A; and 5. The exhibits, except Exhibits B, C and 2, are returned. Jenny Smithson Acting 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: 16 July 2015