Abrams v Council of the City of Sydney

[2019] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583
Hearing dates:	13 November 2019
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted for the demolition of the existing building and the construction of a four-storey mixed use development containing 11 residential apartments, 1 ground floor commercial tenancy and associated bicycle parking and waste storage at 9 Power Avenue, Alexandria, subject to the conditions in Annexure A. (3)   Exhibits 1, 2, 4 and 5 are returned.
Catchwords:	APPEAL – development application – mixed use development – breach of FSR and height development standards – adequacy of cl 4.6 requests – public interest in maintaining the FSR development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 55–Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Abrams v The Council of the City of Sydney [2017] NSWLEC 1371 Abrams v The Council of the City of Sydney [2018] NSWLEC 1648 Abrams v The Council of the City of Sydney [2019] NSWLEC 1481 Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 Abrams v The Council of the City of Sydney (No 5) [2019] NSWLEC 1368 Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Texts Cited:	City of Sydney Development Contributions Plan 2015 Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Gary Abrams (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) J Reid (Respondent)   Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2019/63513
Publication restriction:	No

Judgment

1. COMMISSIONER: On the corner of Power Avenue and Brennan Street in Alexandria, opposite Alexandria Park, a two-storey 1960s commercial brick building stands in contrast to the surrounding residential developments of more recent construction. Mr Abrams seeks development consent to demolish the commercial building, located at 9 Power Avenue, and to construct a new 4-storey mixed use building containing 11 residential apartments, 1 ground floor commercial tenancy and associated bicycle parking and waste storage. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged the present appeal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. Whilst the Council considers that the design of the proposed mixed use building is appropriate, it opposes the grant of development consent on the basis that the proposed development has a floor space ratio (“FSR”) that departs from the FSR development standard under the Sydney Local Environmental Plan 2012 (“SLEP 2012”) and the request to vary the standard does not adequately address the matters required by cl 4.6 of the SLEP 2012. There is also a contention raised by the Council that a departure from the FSR development standard creates an undesirable precedent that would result in an increased density beyond that envisaged by the area and prescribed by the SLEP 2012, and therefore approval would not be in the public interest.

3. Given that no issue is raised by the Council with respect to the design, bulk or scale of the proposed development, the primary matter for my determination is whether the power pursuant to cl 4.6 of the SLEP 2012 ought to be exercised in order to grant development consent notwithstanding the non-compliance with the FSR development standard. I am also required to consider whether approval of a development that exceeds the FSR development standard would create an undesirable precedent. For the reasons set out below, I have reached the satisfaction required by cl 4.6(4) of the SLEP 2012 and determined that consent ought to be granted notwithstanding the contravention of the FSR and height development standards.

The site and the locality

4. The hearing commenced with a site inspection. The site is legally described as Lot 2 in DP803580, and is located on the intersection of Power Avenue and Brennan Street, with a street address of 9 Power Avenue. It is rectangular in shape, with an area of 372m², a 10m frontage to Power Avenue and a 37m frontage to Brennan Street. The two storey commercial brick building currently on the site is built to the boundaries.

5. To the north of the site, across Power Avenue, is a large public park known as Alexandria Park. To the east of the site, on Power Avenue also facing Alexandria Park, are a group of contemporary three-storey residential terraces built to the boundary. Further east, adjoining the terraces and at the end of the block on the corner of Power Avenue and Wyndham Street, is a four-storey residential flat building.

6. On the opposite side of Brennan Street, on the corner of the block opposite the site along Power Avenue, is a four to five-storey residential apartment development known as Atlas Apartments. An aerial view of the site and surrounds, showing the number of storeys of surrounding development, is shown at Figure 1.

7. To the south of the site, across a private lane, is a three-storey warehouse that has been converted to a 4-storey residential flat building, which presents with a recessed fourth storey. The private lane is 6m wide and is owned by the adjoining developments to the east and south. The subject site has no legal access or benefit from the lane.

The planning framework

8. The site is zoned B4 Mixed Use zone under the SLEP 2012. Residential flat buildings are an innominate permissible use, and commercial premises are a nominated permissible use, in the B4 Mixed Use zone. Clause 2.3(2) of the SLEP 2012 requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The objectives are:

1   Objectives of zone

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

9. Clause 4.4 of the SLEP 2012 establishes a FSR development standard of 1:1 for the site.

10. In addition, pursuant to cl 6.14 of the SLEP 2012, the site is eligible for an amount of additional floor space of no more than that which may be achieved by an additional 0.5:1 FSR. The additional floor space is subject to certain criteria, including that the development includes Green Square Community Infrastructure. Clause 6.14 provides:

6.14 Community infrastructure floor space at Green Square

(1) The objectives of this clause are as follows:

(a) to allow greater densities where Green Square community infrastructure is also provided,

(b) to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

(2) The consent authority may consent to development that results in additional floor space in accordance with subclause (4) if the development includes Green Square community infrastructure.

(3) In deciding whether to grant development consent, the consent authority:

(a) must be satisfied that the development is consistent with the objectives of this clause, and

(b) must be satisfied that the Green Square community infrastructure is reasonably necessary at Green Square, and

(c) must take into account the nature of the Green Square community infrastructure and its value to the Green Square community.

(4) Under subclause (2), a building on land in an Area specified in paragraph (a), (b), (c), (d), (e) or (f) is eligible for an amount of additional floor space determined by the consent authority but no more than that which may be achieved by applying the floor space ratio specified in the relevant paragraph to the building:

…

(b) Area 6—0.5:1,

…

11. This means that the total FSR that can be achieved on the site, if the consent authority is satisfied of the matters in cl 6.14(3), is 1.5:1. The proposed development does not comply with this FSR, and has a FSR of 2.63:1.

12. Clause 4.3 of the SLEP 2012 establishes a height development standard for the site of 15m. The proposed development has a maximum height of 15.25m, which is 250mm above the height development standard.

13. The Sydney Development Control Plan 2012 (“SDCP”) applies to the site. Part 4.2.1 concerns building height for mixed use developments and clause 4.2.1.1 provides the objective to “[e]nsure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.” The applicable provisions seeking to achieve that objective are:

“(1) Development must not exceed the maximum number of storeys as shown in the Building height in storeys map.

(2) The maximum may only be achieved where it can be demonstrated that the proposed development:

(a) reinforces the neighbourhood character;

(b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and

(c) does not detract from the character and significance of the existing building.

(3) The street frontage height of a building must not exceed the maximum height shown on the Building street frontage height in storeys map. Refer to provision 4.2.2 Building setbacks, to determine the street frontage height setback.

(4) …

(5) Height of buildings and the street frontage height in storeys should not match anomalous tall neighbouring buildings that are inconsistent with the neighbourhood.”

14. The Building height in storeys map shows the maximum number of storeys for the site as 4-storeys.

15. Clause 4.2.1.2 of the SDCP sets out the floor to ceiling and floor to floor height provisions, which have the objective to “Promote daylight access into building interiors and contribute to the flexible use of buildings.” It requires that buildings with a commercial or retail use are to have a minimum floor to floor height of 4.5m on the ground floor, and 3.6m on the first commercial floor and any commercial floor above.

16. The Building setback and alignment map referred to in clause 4.2.2.1 of the SDCP provides no specific setbacks for the site so the provisions in clause 4.2.2.1(1) apply and require that “setback and alignment must be consistent with adjoining buildings”.

17. The site is within the Alexandria Park locality pursuant to Part 2.5 of the SDCP, which is described as follows:

“Alexandria Park will be a mixed use neighbourhood with a mix of residential, retail, commercial and café/dining uses that will create a vibrant neighbourhood. Alexandria Park will be the focal point of the neighbourhood and a meeting place for residents.

Future development of the neighbourhood will respond to the emerging mixed-use character, and provide an appropriate transition between the small scale residential development to the north, and large scale industrial buildings south of McEvoy Street.”

18. The principles for development within the locality are as follows:

“(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Create a new, tree-lined local street by extending Park Road to McEvoy Street to provide a connection to the parkland for future development.

(c) Enhance street tree planting along the north-south streets between Alexandria Park and McEvoy Street to provide green links to the park, and to promote the park to pedestrian on McEvoy Street.

(d) Introduce mainly low to medium scale development, with some increase in height along McEvoy Street and Botany Road.

(e) Introduce buildings that align and address McEvoy Street at the ground level.

(f) Retain the smaller scale residential buildings along Wyndham Street which contribute to the built form character of the area.

(g) Strengthen Botany Road as a mixed use strip to activate the street, provide services to the population and workforce, and create a more attractive public domain.

(h) Recognise the function of Alexandria Park as a community node that is supported through the provision of future public domain improvements and development that addresses the open space to improve passive surveillance and create an active edge.

(i) Facilitate the transition of the area from employment-based uses to primarily mixed use and residential. Commercial and industrial land uses can continue in this neighbourhood provided that the operational impacts of non-residential uses can be appropriately managed for residential amenity.”

19. The provisions of the State Environmental Planning Policy No 55–Remediation of Land and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also apply to the site. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (“SEPP 65”) also applies.

Historical development consents

20. The site has been the subject of two previous development consents granted by the Council, and a third recently granted by the Court.

21. The first was a deferred commencement consent granted by the Council on 21 October 2013 for the partial demolition of the existing two-storey commercial building and its conversion to a residential flat building consisting of 14 units and ground level car parking. The deferred commencement conditions were not satisfied within the specified timeframe and the consent lapsed on 21 October 2016.

22. The second was similarly a deferred commencement consent, which was granted by the Council on 2 November 2015. The consent authorised the demolition of the existing building and the construction of a new 4-storey residential flat building containing 14 residential apartments and 3 ground floor car parking spaces. The deferred commencement conditions were not satisfied within the specified timeframe and the consent lapsed on 2 November 2017. The approved development had a FSR of 2.4:1.

23. The third development consent remains current and was granted by the Court on 11 October 2019 in Abrams v The Council of the City of Sydney [2019] NSWLEC 1481. It is similarly a deferred commencement consent, requiring entry into a Voluntary Planning Agreement prior to the commencement of the operational consent. The consent, once operational, allows alterations to the existing two storey commercial building for the purpose of office premises, including the addition of a new third level over part of the site.

24. The site has also been the subject of two unsuccessful development applications. The first was D/2016/631, which sought consent for the construction of a 4-storey residential flat building containing 19 residential apartments. This application was the subject of an appeal to the Court, and was refused by Brown C in Abrams v The Council of the City of Sydney [2017] NSWLEC 1371 with an appeal against that decision dismissed by Robson J in Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85. Development consent was refused by Brown C on the basis, inter alia, that the applicant had not demonstrated that compliance with the FSR development standard was unreasonable or unnecessary, or that there were sufficient environmental planning grounds to justify contravening the FSR development standard. The FSR proposed in that application, as considered by Brown C, was 2.84:1.

25. The second was D/2017/1809, which sought consent for a 4-storey residential flat building containing 14 residential apartments. The application was the subject of an appeal to the Court, and was refused by Dickson C in Abrams v The Council of the City of Sydney [2018] NSWLEC 1648 on the basis that the written request did not establish sufficient environmental planning grounds to justify contravening the FSR development standard. An appeal against that decision was successful (see Gary Abrams v The Council of the City of Sydney (No 4) [2019] NSWLEC 71), but the same decision was made by Dickson C on the remittal of the proceedings (see Abrams v The Council of the City of Sydney (No 5) [2019] NSWLEC 1368). On the remitted proceedings, the proposal considered by the Commissioner Dickson had a FSR of 2.67:1. Whilst she found that the written request had established that compliance with the FSR development standard was unreasonable and unnecessary in the circumstances, she was not satisfied that the request established sufficient environmental planning grounds to justify the contravention of the FSR development standard.

26. In considering the prior decisions of Commissioners of the Court, the decision of the Court of Appeal in Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 makes it clear that “in the context of adversarial proceedings in the Land and Environment Court, there is [no] place for the so-called principle of consistency in administrative decision-making” (at [95]). Instead, “the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties” (at [95]).

The development application before the Court

27. The development application before the Court has a proposed FSR of 2.63:1 and a height of 15.25m. It is four storeys in height, and has 135.8m² of commercial space at the ground level, 7 one-bedroom units and 4 two-bedroom units. Above the fourth storey is a communal roof terrace, which is accessed by a lift.

28. The proposed building is setback from Power Avenue at a distance that matches the setback of the corner building at 117 Wyndham Street, and incorporates landscaping in the front setback. Whilst the setbacks to Brennan Street and the private laneway are largely nil, there is an increased setback at the fourth storey facing the private laneway, with landscaping on the roof of the storey below. This provides articulation in the built form at the rear, and results in a recessive fourth storey as perceived from the south. The north and west elevations of the proposal are shown at Figures 2 and 3.

29. The articulation at the rear allows 72% of the residential units to receive least 2 hours direct solar access between 9am and 3pm on 21 June. Further, 90% of units are naturally cross-ventilated.

Breach of the development standards

30. As set out above, the proposal breaches both the height and the FSR development standards, with a FSR of 2.63:1 and a height of 15.25m. This equates to around 420m² of additional floor space above what is permitted by the FSR development standard.

31. As such, consent cannot be granted except in accordance with cl 4.6(2) of the SLEP 2012. Clause 4.6 provides, at (3) and (4):

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

32. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),

• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and

• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

33. Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must “in fact” be satisfied of the above matters. The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request.

34. A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained. As noted by Preston CJ in Initial Action at [28], the Secretary’s concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003.

35. The objectives of the FSR development standard are as follows (cl 4.4 of the SLEP 2012):

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

36. The objectives of the height development standard are as follows (cl 4.3 of the SLEP 2012):

(a) to ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote the sharing of views,

(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,

(e) in respect of Green Square—

(i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and

(ii) to ensure the built form contributes to the physical definition of the street network and public spaces.

Resident evidence

37. Whilst none of the resident objectors were present at the site inspection, a number of written submissions were lodged with the Council with respect to the proposed development. Those submissions raised issues concerning lack of parking, and excessive height and floor space.

38. I note that with respect to the provision of car parking, the SLEP 2012 imposes a maximum number of car spaces that can be provided, and in the present proceedings the Council does not require the proposed development to provide any car parking.

39. The question of whether the proposed height and floor space is appropriate is considered below.

Expert evidence

40. Mr Anthony Betros and Ms Aisling McGrath, town planners, prepared a joint report and gave expert opinion evidence with respect to the breach of the FSR development standard and the written cl 4.6 request. The written request was prepared by Mr Betros.

41. Both Ms McGrath and Mr Betros agree that the contention raised by the Council with respect to the public benefit offer has been resolved by a revised public benefit offer (made on 4 November 2019).

42. Ms McGrath opines that there is no issue with the proposed FSR insofar as it relates to bulk and scale, and that the bulk and scale of the proposed development is acceptable. Further, she agrees that the proposed development is consistent with the zone objectives and with objectives (a) and (d) of the FSR development standard. However, she considers that the proposed development is not consistent with objectives (b) and (c), and that the request has not adequately established that compliance with the FSR development standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify the contravention of the FSR development standard. Ms McGrath also opines that the proposed breach of the FSR development standard creates an undesirable precedent that would result in an increased density beyond that envisaged for the area and prescribed by the SLEP 2012.

43. As a result of the expert evidence and the contentions raised by the Council, the only matters in dispute between the parties are those matters required to be satisfied in cl 4.6(4) of the SLEP 2012 with respect to the contravention of the FSR development standard, and the contention with respect to the undesirable precedent.

The written request on the FSR development standard

44. The written request concerning the breach of the FSR development standard seeks to justify the contravention on grounds that can be summarised as follows:

• The built form adopts appropriate setbacks, bulk, scale and height which are compatible with its surrounding context.

• A building with a compliant FSR would be 2-storeys in height with a 3-storey element, and would therefore appear out of character in the context of the area.

• The proposed FSR allows the bulk and scale of the building to be consistent with the corresponding ‘bookend’ corner building at 117 Wyndham Street, which has a FSR of 2.72:1.

• The 4-storey scale of built form is consistent with the desired future character as expressed in the SDCP.

• There is an absence of internal or external amenity impacts arising from the additional floor space.

• The urban design evidence of Ms Morrish (from previous proceedings) supports the proposed FSR variation, by explaining that the proposed development provides a building massing and internal amenity that is responsive to the 3-5 storey scale of the existing context whilst also giving a strong corner expression that responds to the taller corner building opposite.

• The Council has endorsed a greater FSR on two occasions under the same planning regime.

• The proposal achieves the objectives of the FSR development standard notwithstanding the non-compliance.

• In order to achieve the 4-storey scale of development that is consistent with the surrounding context whilst maintaining a compliant FSR, there would need to be provided a series of internal voids or courtyards, which would not result in the orderly and economic use of the site with disproportionate and inefficient floor plans with parts of the building being empty shells.

45. The Council’s position is that Mr Abrams has not demonstrated that the proposed development satisfies objective (c) of cl 4.4 of the SLEP 2012, and that the cl 4.6 request has failed to demonstrate that, firstly, complying with the FSR development standard is unreasonable and unnecessary and that, secondly, there are sufficient environmental planning grounds to justify the contravention. The Council submits that the cl 4.6 request undertakes no assessment as to the precise capacity of the current and planned infrastructure, and whether that capacity is sufficient to accommodate the additional demand generated by the intensity of the proposed development. The Council submits that it cannot be assumed that because the site benefitted from prior consents with greater FSR, the Council was at that time satisfied that the additional demand could be accommodated within current and planned infrastructure. The Council submits that it is not sufficient to assess the current and planned infrastructure simply by a general recollection of what is close to the site, but that a more detailed assessment of capacity is required.

Development consent should be granted notwithstanding the breach of the FSR development standard

46. I am satisfied that each of the matters required by cl 4.6(4) are satisfied, and that there is therefore power to grant development consent notwithstanding the breach of the FSR development standard.

The request demonstrates that there are sufficient environmental planning grounds

47. In satisfaction of cl 4.6(3)(b) and cl 4.6(4)(a)(i) of the SLEP 2012, the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds that I accept as sufficient to justify contravening the standard are twofold. First, the request establishes that a contravention of the FSR development standard allows the proposed development to have a bulk and scale that:

• Is responsive to the 3-5 storey scale of the existing context,

• Gives a strong corner expression in the context of the taller 5-storey corner building opposite,

• Is consistent with the corresponding ‘bookend’ corner building at 117 Wyndham Street, and

• Transitions appropriately from the adjacent three storey terraces to the five storey corner building on the opposite corner.

These outcomes, in my view, are “grounds” that are consistent with the objects of the EPA Act to promote the orderly development of land and to promote the good design of the built environment, and that inform the non-compliance with the FSR development standard. The request demonstrates that these same outcomes could not be achieved through a compliant scheme. It does so by providing west and north elevations from a compliant scheme, which show that removal of the additional FSR would result in a 2-storey scale with a small 3rd storey, which would be out of character with the scale of development in the context, would expose part of the eastern neighbouring terraces, and would result in an unbalanced corner when perceived from the northern side of Power Avenue.

48. Second, the request establishes that whilst a similar scale of development could be achieved with a compliant FSR through the use of internal voids and courtyards, such an approach would result in disproportionate and inefficient floor plans with large parts of the building being an empty shell. In circumstances where there are no internal or external amenity impacts occasioned by the proposed number of units, and where adequate solar access can be achieved within the proposed development without comprising the solar amenity of the southern adjoining property, the request demonstrates that the additional floor area (which enables the appropriate built form outcome) can be accommodated within the floors of the proposed development.

49. I am therefore satisfied that the appropriate built form outcome that is achieved through the proposed development justifies the contravention of the FSR development standard, which is the means by which that outcome is achieved. Given that the additional FSR can be accommodated within the floors of the proposed built form without adverse amenity impacts, in units that achieve appropriate levels of internal amenity, I accept that the request demonstrates that the built form outcome need not be achieved by having internal voids and courtyards.

The request establishes that compliance is unreasonable or unnecessary

50. Consistent with cl 4.6(3)(a) and cl 4.6(4)(a)(i) of the SLEP 2012, I am also satisfied that the written request adequately justifies the contravention by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It does so in two ways.

51. Firstly, it does so by demonstrating that a proposal with compliant FSR would appear out of character with the scale of development in the immediate context and would result in an unbalanced corner when perceived from the northern side of Power Avenue. This, together with the fact that the additional floor space can be accommodated within the proposed built form without adverse amenity impacts (for the reasons set out at [48]), is adequate to demonstrate that compliance with the FSR development standard is unreasonable or unnecessary.

52. Secondly, it demonstrates that compliance is unreasonable or unnecessary by demonstrating that the objectives of the standard are achieved notwithstanding the non-compliance with the standard. The request outlines that objective (a), which is “to provide sufficient floor space to meet anticipated development needs for the foreseeable future” is achieved as the proposed floor space provides for commercial and residential accommodation that meets the anticipated development needs of the mixed-use character of the locality.

53. With respect to objective (b), “to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic”, Preston CJ at LEC found in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 that it is “explanatory of the central purpose of the floor space ratio standard”. Specifically, his Honour stated (at [49]):

“… By fixing different maximum floor space ratios for buildings on land in different areas by means of the Floor Space Ratio Map, the clause does regulate the density of development, built form and land use intensity. But the regulation of the density of development, built form and land use intensity is not the end to be achieved by the clause, rather it is a means to achieve the goals identified in objective (a) “to provide sufficient floor space to meet anticipated development needs for the foreseeable future”, objective (c) “to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure” and objective (d) “to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality”, and the particular goal in object (b) “to control the generation of vehicle and pedestrian traffic.”

54. This interpretation was not contested by either of the parties. Accordingly, in reaching the satisfaction that request establishes that objective (b) is achieved notwithstanding the contravention of the development standard, I need only consider whether the request establishes that the goal in object (b), “to control the generation of vehicle and pedestrian traffic,” is achieved. I accept it has done so by stating, firstly, that the proposal is consistent with the Council’s strategy to use sustainable transport options by providing bike parking without any car parking and, secondly, that the site enjoys easy pedestrian access to parks, shops and public transport. As such, the request adequately demonstrates that the proposed development achieves the goal in object (b) as the proposal will not generate any vehicular traffic and will generate pedestrian traffic that can be accommodated within the existing pedestrian network.

55. I am also satisfied that the request demonstrates that the proposed development achieves objective (c) to “provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure” notwithstanding the contravention of the FSR development standard. It does so by outlining that the proposed development is:

• Firstly, modest in nature, with 135.8m² of commercial space, 7 x 1 bedroom units, and 4 x 2 bedroom units, particularly in comparison to other mixed use and residential development in the Green Square town centre;

• Secondly, supported by existing infrastructure in the form of bus, railway, recreation and shopping facilities;

• Thirdly, supported by a contribution to community infrastructure, including a contribution for the floor space that contravenes the development standard, which contribution will be used for the purposes of recreation areas, recreation facilities, public roads, drainage and flood mitigation works; and

• Fourthly, supported by planned infrastructure in the form of upgrades to Alexandria Park opposite the site through the City of Sydney Development Contributions Plan 2015, and the future Waterloo Metro Station.

56. The above points provide sufficient analysis to demonstrate that the proposed development is of an intensity that is commensurate with the capacity of the existing infrastructure and can be accommodated by the planned infrastructure through the existing works schedule and the contribution payable pursuant to the City of Sydney Development Contributions Plan 2015. I do not accept the submission made by the Council that additional assessment of the capacity of each type of infrastructure is required.

57. Finally, I am satisfied that the request adequately establishes that the proposed development achieves objective (d), “to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality”. It does so by demonstrating that the 4-storey height of the proposal is consistent with the desired future character for the site, and that the siting of the proposal is appropriate given its corner location and general streetscape context. It also does so by demonstrating that the height, bulk and scale of the proposal is designed to minimise adverse impacts on the amenity of the locality, and does not generate any adverse solar access or privacy impacts.

The proposal is in the public interest

58. Further, consistent with cl 4.6(4)(a)(ii), I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the zone.

59. I am satisfied that the development is consistent with the objectives of the FSR development standard for the reasons outlined in the request, which are considered above in [52]-[57]. This is supported by the evidence of Mr Betros, who opines that, consistent with objective (c), the facilities located near the site are not at or near capacity and can accommodate an increase in demand occasioned by the intensity of the proposed development. I was not persuaded by Ms McGrath’s opinion to the contrary, which primarily concerned the strategic management of density across the broader area, and assumed that any breach of the FSR development standard exceeds the capacity of the infrastructure.

60. I also accept that the proposal is consistent with the zone objectives, which the Council does not dispute. The zone objectives are recited above at [8]. Consistent with the zone objectives, the proposal provides both residential and commercial uses in a mixed use development, in an area that is readily accessible by public transport and pedestrian pathways, therefore integrating suitable residential and commercial development in an accessible location “to maximise public transport patronage and encourage walking and cycling”. These uses, in turn, support the viability of the local centres that can be accessed within walking distance from the site, including Green Square.

The written request on the height development standard

61. At set out above, the height development standard established by cl 4.3 of the SLEP 2012 is 15m, whereas the proposed development has a maximum height of 15.25m. The elements that contravene the height development standard are the lift overrun, which breaches the height limit by 100mm, and the pergola roof for the communal roof terrace, which breaches the height limit by 250mm at the south-west corner. The written request seeks to justify the breach of the height development standard on a number of grounds, which can be summarised as follows:

• The elements that contravene the development standard do not generate any visual bulk impacts or any adverse or unreasonable overshadowing, privacy or view loss impacts.

• The lift overrun provides access to, and the pergola provides amenity for, the communal roof terrace area, and as such the variation contributes to the amenity of the proposal.

• The primary built form is generally 1m below the 15m height development standard, at a 4-storey scale that is consistent with the built form contemplated by the SDCP storey control. The breach of the height development standard is limited to a minor portion of the built form, which is recessed, and would not be readily perceptible from the public domain.

62. The Council raises no contention with respect to the contravention of the height development standard, and agrees that the power in cl 4.6 to grant consent notwithstanding the contravention of the height development standard can be exercised. I am satisfied of each of the matters in cl 4.6(4), for the following reasons.

63. Firstly, I am satisfied that the written request establishes sufficient environmental planning grounds to justify the contravention of the standard. Those grounds are that the contravention arises from a small portion of the lift overrun, which allows access to the communal roof terrace, and from the pergola, which improves the amenity of the communal roof terrace. In light of the minor breach of the standard by those elements that contribute to the amenity of the proposed development, I am satisfied that these grounds justify contravening the height development standard.

64. Secondly, I am satisfied that the request has adequately addressed that compliance with the development standard is unreasonable and unnecessary, in two ways. The first is by establishing that those elements that breach the standard will not be perceived by adjoining development or from Alexandria Park, will not add to the visual bulk or perceived height of the proposed development, and will not cause any adverse amenity impact. Accordingly, the perceived height will remain as a 4-storey building, consistent with the scale envisaged by the SDCP and providing an appropriate transition from the 3-storey terraces to the 5-storey building on the opposite corner. I consider that the second way that the request establishes that compliance is unreasonable or unnecessary is by demonstrating that the objectives of the height development standard are achieved notwithstanding the contravention of the standard, for the reasons set out in the request.

65. Thirdly, I am satisfied that the proposal is in the public interest because it is consistent with the objectives of the standard and the objectives of the zone. It is consistent with objective (a) of the standard, “to ensure the height of development is appropriate to the condition of the site and its context” as the primary built form has a height of around 1m below the height limit, and the height variation does not compromise the presentation of the built form as a 4-storey building that is contemplated by the SDCP and appropriate in its context. The proposed development is consistent with objective (c) of the standard as it does not cause any view loss, and with objective (d) as it does not disrupt the transition of height from the Green Square Town Centre to adjoining areas. It is also consistent with objective (e) “to ensure the amenity of the public domain by restricting taller buildings to only a part of the site” and “to ensure that the built form contributes to the physical definition of the street network and public spaces” as the recessed nature of the lift overrun and the pergola do not disrupt the primary built form which will suitably define the street network. Objective (b) of the standard is not relevant to the site. Further, for the reasons set out above at [60], I am satisfied that the proposed development is in the public interest as it is consistent with the zone objectives.

The public interest of maintaining the development standard

66. The Council also contends that a departure from the FSR development standard creates an undesirable precedent that would result in an increased density beyond that envisaged by the area and prescribed by the SLEP 2012, and that there is a public interest in maintaining the standard. This is supported by the evidence of Ms McGrath, who opines that the proposed exceedance of the FSR development standard is contrary to the objects of the EPA Act, including the objective to “promote the orderly and economic use and development of land”. She considers that, given that the FSR control is in place to strategically manage densities so that they correspond with the capacity of existing and planned infrastructure, it is of public benefit to prohibit incremental increases to the envisaged density, and that any such incremental increase creates an undesirable precedent.

67. To the contrary, the evidence of Mr Betros is that, in planning for infrastructure to accommodate planned density, a broad base approach is utilised to estimate density, as not all sites will reach FSR capacity for a range of reasons, including conservation of heritage items. Further, he considers that, consistent with what is contained in the cl 4.6 request and for the reasons contained therein, the increased density and intensity can be accommodated on the site and the demands generated therefrom can be met by existing and planned infrastructure.

The proposed development does not create an undesirable precedent

68. In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]):

“…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

69. As set out by Lloyd J, the test as to whether a proposal creates an undesirable precedent comprises two steps. The first step is whether there is something objectionable about the development itself. In the present proceedings, the Council submits that what is objectionable is any breach of the FSR development standard, as there is a public benefit in ensuring that the standard is maintained to ensure that the density of development is strategically managed in accordance with what is envisaged for the area.

70. I am not satisfied that the increased density occasioned by the breach of the FSR development standard, of itself, means that the development is “objectionable in itself”. There is no evidence that the increased density occasioned by the proposed breach of the FSR development standard has any adverse impact or disturbs the strategic management of densities in some measurable way. Without such evidence, and in circumstances where the matters required by cl 4.6(4) of the SLEP 2012 are satisfied such that flexibility should be afforded and the development is otherwise acceptable on its merits, the development is not objectionable in itself and there is no undesirable precedent occasioned by its approval.

71. Additionally, as set out above (at [55]-[56]), I am satisfied that the intensity of the development can be accommodated by the capacity of existing and future infrastructure. Further, I accept the evidence of Mr Betros that the strategic planning of densities is a broad base approach, and that the increased density and intensity can be accommodated in the proposed development without causing any adverse impacts.

72. As such, I do not accept that there is an undesirable precedent established by the approval of the proposed development, notwithstanding the increased density that arises from the contravention of the FSR development standard. Any other proposed development would need to meet the requirements of cl 4.6 in order to benefit from a development consent that contravenes the FSR development standard.

The outcome of the appeal

73. For the reasons set out above, I am satisfied of the matters required by cl 4.6(4) of the SLEP 2012, and that the power pursuant to cl 4.6(2) should be exercised in favour of granting development consent even though the development would contravene both the height and FSR development standards. Similarly, I have found that, in circumstances where I am satisfied of the matters in cl 4.6(4), the granting of development consent will not create an undesirable precedent.

74. As there are no other grounds advanced by the Council against the granting of development consent, I consider it appropriate to grant consent subject to conditions. The conditions of consent are agreed between the parties, and include a deferred commencement condition requiring entry into a Voluntary Planning Agreement. In granting consent, I have given weight to the following features of the proposed development:

• The four-storey built form, which is consistent with the scale of development along Brennan Street, gives a strong corner expression in the context of the taller 5-storey corner building opposite, and transitions appropriately from that 5-storey building to the adjacent three storey terraces;

• The setback from Power Avenue that matches the corresponding “bookend” development at 117 Wyndham Street, with landscaping in the front setback;

• The articulation of the built form at the rear adjacent to the private laneway, such that there are increased setbacks from the private laneway at the fourth storey and again at the roof terrace, resulting in a ‘stepping down’ of the built form towards the laneway;

• The distribution of the total floor space (which includes the floor space that exceeds the FSR) across a modest number of apartments (7 x 1 bedroom units, and 4 x 2 bedroom units);

• The internal amenity of the apartments, including that 72% receive least 2 hours direct solar access between 9am and 3pm on 21 June and that 90% of units are naturally cross-ventilated;

• The lack of adverse shadow, privacy or view impacts on adjoining development.

75. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for the demolition of the existing building and the construction of a four-storey mixed use development containing 11 residential apartments, 1 ground floor commercial tenancy and associated bicycle parking and waste storage at 9 Power Avenue, Alexandria, subject to the conditions in Annexure A.

3. Exhibits 1, 2, 4 and 5 are returned.

……………………….

J Gray

Commissioner of the Court

Annexure A (168 KB, pdf)

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Decision last updated: 29 November 2019