Abrams v The Council of the City of Sydney

[2017] NSWLEC 1371

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abrams v The Council of the City of Sydney [2017] NSWLEC 1371

Hearing dates:

15,16 May 2017, 9,14 June 2017

Date of orders:

18 July 2017

Decision date:

18 July 2017

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is dismissed.

2. Development Application D/2016/631 for the demolition of an existing commercial building and construction of a new residential flat building at 9 Power Road, Alexandria is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

Catchwords:

DEVELOPMENT APPLICATION: demolition of the existing commercial building on the site and construction of a new residential flat building - excessive floor space ratio - amenity impacts on future residents - inconsistent with the desired future of the locality

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development
Sydney Local Environmental Plan 2012

Cases Cited:

Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21

Category:

Principal judgment

Parties:

Gary Abrams (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
Mr M Staunton, barrister (Applicant)
Ms J Reid, barrister (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2016/219159

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2016/631, as amended, for the demolition of an existing commercial building and construction of a new 4 storey residential flat building containing for 19 residential apartments (14 x bedroom apartments and 5 x1 studio apartments) at 9 Power Road, Alexandria (the site).

2. The council maintains that the proposed development should be refused for the following reasons:

• excessive floor space ratio (FSR), including inconsistency with the desired future character and streetscape of the locality,

• unacceptable amenity impacts on future residents, particularly in relation to cross ventilation, privacy, solar access, common open space, apartment size, inadequacy of adaptable apartments, private open space and separation from adjoining dwellings, and

• insufficient engagement with the public domain

3. Following the provision of amended plans and further assessment by the experts in the proceedings, a number of the council contentions were satisfactorily addressed. The remaining contentions relate to the FSR variation, the street setback, inadequacy of common space and private open space and inadequacy of adaptable apartments.

Background

4. The previous approvals granted by the council were relied upon by the applicant for various components of the proposed development, particularly the variation to the FSR. A summary of the previous approvals is;

27 March 2013; Development Application D/2013/383 was lodged for partial demolition of an existing 2 storey commercial building and conversion to a residential flat building, consisting of 12 x 1 bedroom units and 2x2 bedroom units and ground floor level car parking.

21 October 2013; council approved Development Application D/2013/383 by way of a Deferred Commencement consent, with the applicant required to enter into a Volunteering Planning Agreement (VPA) in order to activate the consent.

2 November 2015; Development Application D/2015/351 was approved for the demolition of existing structures and construction of a new 4 storey residential flat building containing 14 residential apartments and 3 ground floor car parking spaces. The proposed building had an FSR of 2.4:1. This approval was granted by way of a Deferred Commencement consent. Essentially, D/2015/351 reflected D/2013/383; with the major difference being that D/2013/383 proposed partial demolition whilst D/2015/351 involved full demolition.

The site

5. The site is located on the intersection of Power Avenue and Brennan Street, Alexandria. It is rectangular in shape and is occupied by a two storey commercial building which occupies the whole site. The site has an area of 372sqm with an approximate 10m frontage to Power Avenue, a similar frontage to a private lane and an approximate 37m frontage to Brennan Street.

6. To the north of the site, across Power Avenue, is Alexandria Park. To the east of the site are a group of contemporary three-storey residential terraces. To the south of the site across a private lane is a three-storey warehouse but subject to a residential conversion. The private lane is 6m wide and is owned by the adjoining developments to the east and south. The site has no legal access or benefit from the lane.

7. On the opposite side of Brennan Street is a four to five storey residential apartment development known as Atlas Apartments.

Relevant planning controls

8. The site is within Zone B4 - Mixed Use under Sydney Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible with consent in this zone. Clause 2.3(2) provides that the Court “must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The objectives of the B4 zone are:

i. To provide a mixture of compatible land uses.

ii. 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.

iii. To ensure uses support the viability of centres.

9. Clause 4.3 provides for a maximum height of 15m and the proposed development satisfies this standard with a height of 14.7m.

10. Clause 4.4 provides for a maximum FSR of 1.5: 1 (including a bonus 0.5:1 that is permissible under cl. 6.14 for community infrastructure in Green Square). The applicant has submitted a public benefit offer to obtain the additional 0.5:1 and a FSR of 2.84:1 is proposed. The applicant has submitted a written request pursuant to cl 4.6 show why the variation to the FSR development standard is acceptable.

11. Clause 6.21 addresses Design excellence. Clause 6.21(1) states that the objective of this clause is to deliver the highest standard of architectural, urban and landscape design. Clause 6.21(3) provides that development consent must not be granted to development to which this clause applies unless, in the opinion of the Court, the proposed development exhibits design excellence. In considering whether development to which this clause applies exhibits design excellence, the Court must have regard to the matters in cl 6.21(4).

12. Sydney Local Environmental Plan 2012 (DCP 2012) applies to the site. Relevantly, cl 4.2.3.6 provides that 10% of the site area is to be deep soil. The Building setback and alignment map referred to in cl 4.2.2.1 provides no specific setbacks for the site so the provisions in cl 4.2.2.1(1) apply and require that “setback and alignment must be consistent with adjoining buildings”. Clause 4.2.3.8 provides that common open space must be provided at 25% of the site area.

13. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)). The relevant design quality principles are:

Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

Can the variation to the FSR standard be supported?

The requirements

14. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:

4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(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

15. The objectives of the FSR standard are set out in cl 4.4(1) and state:

(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.

The extent of the breach of the FSR standard

16. It was agreed that the site has a maximum FSR of 1.5: 1, including a bonus 0.5:1 that is permissible under cl. 6.14 for community infrastructure in Green Square. The applicant has submitted a public benefit offer to obtain the additional 0.5:1. It was agreed that the proposed development has an FSR of 2.84:1.

The written request

17. The written request was prepared by the applicant’s town planner, Mr Anthony Betros. Pursuant to cl 4.6(3), the written request states that a variation to the FSR standard can be supported because the standard is unreasonable or unnecessary in the circumstances of the case because the proposal complies with the objectives of the FSR standard. Specifically:

• the proposed additional floor space is considered to provide for a desirable level of housing stock that involves a mix of residential typologies to meet the anticipated development needs for the foreseeable future (objective (a)),

• the proposed development has been designed to provide 19 Class 1 bicycle storage lockers instead of the existing approved ground floor car parking. The proposed reduction in vehicles generated by the approved development (D/2015/351) is considered to result in a better planning outcome given the sites proximity to the Green Square train station, access to frequent public transport routes (i.e. buses) and the surrounding facilities and services (objective (b)),

• there is sufficient infrastructure in place to support the proposed development intensity. Further to this, the proposed development is accompanied by a VPA which provides a monetary contribution towards community infrastructure within the Green Square area. It is therefore argued that the VPA will contribute to the capacity of the planned infrastructure for the area and on this grounds, the intensity of the development should be supported (objective (c)), and

• the proposed development is consistent with the desired future character of the area, including the Alexandria Park locality and wider Green Square Area. This is demonstrated on the proposed elevations which illustrates that the proposed street facade is similar to the recently established buildings to the south and west (objective (d)).

18. The proposal will be in the public interest because it is consistent with the objectives for development within the zone in which the development is proposed to be carried out. Specifically, the proposed residential flat building is permissible in the B4 Mixed Use zone. Residential accommodation and the associated FSR is compatible with the recently constructed residential terraces and apartments to the south and west of the site. The site is conveniently located to a host of services being immediately to the south of Alexandria Park and in close proximity to Green Square Station and the evolving Town Centre. The achievement of an additional 0.44:1 FSR on the constrained site and within a similar building envelope to that approved under D/2015/351 is a desirable outcome for this commercially isolated site.

19. In addition, there are circumstances specific to the site and the proposed development that support the position that compliance with the development standard is unreasonable or unnecessary. These are:

• the site has an existing approval for a 4 storey residential flat building with ground floor car parking and an approved FSR of 2.4:1,

• the proposed development predominantly retains the existing building envelope of the approval; however the internal redesign results in an increase in the FSR by 0.44:1. This has been achieved through the removal of the ground floor car parking and the construction of a basement level to house the proposed bicycle storage lockers, waste storage area and associated building services, and

• the proposed development is considered to maintain the same level of external amenity impacts whilst resulting in improved internal amenity impacts for the future occupants. This has been achieved through a redesign of the internal layout which increases the provision of private open space (71% approved, 100% proposed), solar access (43% approved, 73.7% proposed) and cross ventilation (36% approved, 57.9% proposed) for the proposed residential units.

20. The written request states that there are sufficient environmental planning grounds to justify contravening the development standard in accordance with cl 4.6(3)(b). The additional FSR is not responsible for any greater environmental impacts than a proposal with a compliant FSR. Given the lack of overshadowing, view and privacy impacts, there is no sound planning justification to maintain the FSR standard. The proposed bulk and scale is identical to that approved by the council under D/2015/351. Whilst the FSR has increased by 0.44:1, it is considered that the building envelope has largely remained the same and therefore any external impacts associated with the development is consistent with that already approved on the site.

The council’s evidence

21. Mr Adrian McKeown, a town planner, provided evidence from the council. He states that the proposal fails to meet the objective of cl 4 6(1)(b) as it does not result in a better outcome for the site as compared to a compliant scheme . In his opinion, the applicant has failed to demonstrate that the contravention of the development standard is unreasonable or unnecessary in the circumstances where demolition and a new building are proposed.

22. Mr McKeown states that the applicant has failed to demonstrate the proposal provides for an intensity of development that is commensurate with the capacity of existing and planned infrastructure (FSR objective (c)) and the proposal reflects the desired character of the locality (FSR objective (d)). In relation to FSR objective (d), Mr McKeown states that the current proposal is unacceptable in the streetscape for the following reasons:

• it has a 4 storey street wall height at Brennan Street, the wall being constructed using masonry with no upper level articulation or setback, the current proposal uses masonry construction for the full building height at the Brennan Street boundary compared to the previous scheme that used metallic materials at Level 4 to contrast the increased visual bulk of the 3 masonry levels below,

• the current proposal has a reduced setback to the Power Street boundary at the upper level compared to the 2015 approval (reduced from 3.6m to 1.4m to the roof edge and 2.4m to the outer edge of the northern wall),

• the current proposal increases the parapet height of the development from RL 23.5m to RL 25.05 resulting in an overbearing presence at upper levels,

• ground floor apartments have poor internal amenity as windows and balconies are overlooked from the footpath, and

• the visual bulk of the current proposal is incongruous with neighbouring dwellings to the south at 8-10 Brennan Street that are setback from the Brennan Street property boundary to effectively reduce visual bulk.

23. The increased bulk of the proposal does not reflect the desired character of the locality in which it is located and has adverse impacts on the amenity of that locality in relation to streetscape impacts. As such, the proposal is contrary to FSR objective (d).

24. Further, the applicant has failed to demonstrate that the contravention of the development standard is unreasonable or unnecessary in the circumstances of the case. The increased visual bulk of the current proposal is unacceptable as it results in significantly reduced internal amenity for the future occupants of the apartments compared to the 2015 approval, as follows;

• the approved 2015 development provided courtyards and landscaped buffers that provided opportunities to mitigate privacy and security impacts from Power Avenue and Brennan Street,

• the increased floor levels for ground floor apartments do not mitigate visual privacy and security impacts, particularly at Power Avenue frontage and in relation to balconies at the Brennan Street boundary that are overlooked from the footpath,

• security and privacy impacts will impact on ventilation, as windows will be required to be kept closed, and

• provision of communal open space has decreased compared to the 2016 refusal that provided an area of rooftop communal open space with an area of 65sqm. The current scheme provides no communal open space within the site and no deep soil planting area.

The assessment framework

25. Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

25. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

27. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

Zone objectives

28. The zone objectives are:

i. To provide a mixture of compatible land uses.

ii. 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.

iii. To ensure uses support the viability of centres.

29. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the FSR standard should be granted or not. The written request addresses the zone objectives in a general way in stating that the additional 0.44:1 FSR on the constrained site and within a similar building envelope to that approved under D/2015/351 is a desirable outcome for the site. Mr McKeown makes no reference to the zone objectives in his written evidence although under cross examination he maintained that the proposal did not satisfy the zone objectives but the reasons for this were not clear.

30. In my view, the matters generally raised in the written request relate to the development as a whole (rather than the FSR variation) and understandably are not really responsive to the zone objectives because of a lack of relevance in the zone objectives to the matters that are appropriately considered in a request to vary a FSR standard. I accept that a lack of relevance should not be a barrier to the further consideration of the cl 4.6 written request, so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

FSR objectives

31. The objectives of the FSR standard are:

(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.

32. Mr McKeown addresses objectives (c) and (d) in his evidence. Objective (c) seeks to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. While Mr McKeown stated that the additional people to be housed in the additional floor area created by the FSR variation would place additional burden on the council in relation to existing and planned infrastructure. I understand that the council (like all councils) addresses additional population through s 94 contributions where they calculate the contribution by multiplying the net population increase by the contribution rate per additional dwelling, resident, worker or overnight visitor, depending on the application. Mr McKeown’s concerns relates to the additional cost of providing infrastructure in Green Square, beyond the contributions available under s 94, as set out in the council document Development Guidelines - Providing Community Infrastructure in Green Square, (December 2012). While additional contributions are able to be collected through cl. 6.14 for the additional 0.5:1of FSR, Mr McKeown states that no mechanism is available to collect additional contributions for the additional population generated by the increase to the FSR beyond 1.5:1 in the Green Square precinct.

33. Even if Mr McKeown is correct, I do not accept that the applicant should be penalised for legitimately using the provisions of cl 4.6 to seek an increase in the amount of floor space. The fact that council has not provided any mechanism in Green Square to accommodate this should not be a reason to find that the proposal is not consistent with FSR objective (c). I note that the council took no issue with the matters by Mr McKeown in the previous approvals granted on the site.

34. Objective (d) raises two separate matters. First, the proposal must reflect the desired future character of the locality and secondly, the proposal must minimise adverse impacts on the amenity of the locality. There was no discussion on what represented the locality so I have taken it to mean the visual catchment when viewed from the site.

35. In my view, the desired future character of the locality must be represented by the council’s planning controls for the site and nearby. The principal controls for the site are a 15m maximum height control (cl 4.3, LEP 2012)), a 1.5:1 FSR (cl 4.4 and cl 6.14, LEP 2012)), a maximum 4 storeys (cl 4.2.1, DCP 2012), 10% of the site area is to be deep soil (cl 4.2.3.6), 25% of the site area is to be common open space and with no specific setbacks shown on the Building setback and alignment map, the setback and alignment must be consistent with adjoining buildings (cl 4.2.2, DCP 2012). Identical requirements exist for nearby properties except along McEvoy Street where the height is 22m.

36. If the proposed development is compared to these principal controls, I am satisfied that it can be reasonably argued that the proposal does not reflect the desired future character of the locality. While the maximum height and the 4 storey control are satisfied, the application fails to provide adequate deep soil, common open space and ground level setbacks. I accept that these are matters that contribute to the desired future character of the locality.

37. While Mr McKeown may be correct in that the previous approval provided a better streetscape appearance due to the different architectural treatment and materials on the upper level, no evidence was produced that suggested that this type of treatment is required by either LEP 2012 or DCP 2012. As correctly stated by Mr McKeown, this application must be treated as a new application and considered on its merits rather than a comparison with any previous approval.

38. In relation to setbacks to Power Avenue, Brennan Street and the private lane, cl 4.2.2 of DCP 2102 states, in part:

Objectives

(a) Ensure development:

(i) is generally consistent with existing, adjacent patterns of building setbacks on the street; and

(ii) maintains the setting of heritage items and is consistent with building setbacks in heritage conservation areas.

(b) Establish the street frontage setback of the upper levels of residential flat buildings, and commercial and retail buildings.

(c) Encourage new building setbacks where appropriate to reinforce the areas desired future character.

Provisions

4.2.2.1 Setbacks

(1) Setbacks are to be consistent with the setbacks shown in the Building setback and alignment map. Where no setback or alignment is shown on the map, the setback and alignment must be consistent with adjoining buildings. When the setback or alignment varies, either the adjacent or average front setback or alignment is to be adopted.

39. The Building setback and alignment map referred to in cl 4.2.2.1 provides no specific setbacks for the site so the provisions in cl 4.2.2.1(1) apply and require that “setback and alignment must be consistent with adjoining buildings”. The building alignment at the Power Avenue frontage of the proposed development is some 4m different to the adjoining development in Power Avenue. The lack of consistency with the adjoining development is exacerbated by the consistent and long setback of this development and the short building setback on the prominent corner location that extends beyond the adjoining setback. At the rear lane, a better relationship with the adjoining development should be provided, including a greater area of landscaping than currently proposed. While the presentation to Brennan Street provides articulation at ground level that includes deep balconies, angled walls, raised planter boxes (after discussion and agreement between the urban design experts), landscaping and different materials. However, the parts of this setback that have a nil setback are attached to bedrooms and living rooms with windows and I agree with Mr McKeown that the relationship with the public areas directly adjoining these rooms is unacceptable on a number of levels, including visual and acoustic privacy, security and ventilation (if the windows need to be closed).

40. The second part of objective (d) relates to minimising “adverse impacts on the amenity of the locality”. This must be a reference to amenity impacts external to the site by the reference to the words “the locality”. As I understand, no contentions relating to overshadowing, acoustic or visual privacy or other external amenity impacts were raised by the council.

41. While Mr McKeown and Mr Betros sought to address only FSR objectives (c) and (d), FSR objective (b) is also relevant. FSR objective (b) states:

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

42. FSR objective (b) seeks to regulate firstly, the density of development, secondly, built form, thirdly, land use intensity and fourthly, control the generation of vehicle and pedestrian traffic. It is the third matter that is relevant, in my view. Even though Mr McKeown and Mr Betros did not specifically address the question of land use intensity through FSR objective (b), they addressed the consequences of the intensity of the additional floor area in a number of ways. Mr McKeown identified that the additional floor area results no common open space within the site and no deep soil planting area, as part of his concerns over the inadequate ground level setbacks. While Mr Betros is partly correct in stating that the absence of common space in the development can be addressed by the close proximity to Alexandria Park, it is highly questionable to say this when the proposed FSR is approaching double that is permitted under LEP 2012, even with the bonus permitted by cl 6.1. Optimally, the use of communal open space by future residents is best addressed by the provision of facilities on site and which can be supplemented by different facilities, such Alexandria Park where activities can take place that could not be undertaken on site. A similar response can be made about the absence of deep soil planting and the inadequate setbacks and the substantial variation sought to the FSR development standard.

Is compliance with the development standard is unreasonable or unnecessary?

43. I do not accept that the applicant has justified the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

44. While it is submitted that the FSR development standard has been abandoned by Mr Betros and Mr McKeown, my understanding of the evidence did not support such a conclusion. Mr McKeown stated that the FSR may have been abandoned by the reporting council on the previous approvals but that this was not his position and he would have dealt with the variation to the FSR standard differently. His evidence clearly focussed on the allowable 1.5:1 FSR available through LEP 2012.

Are there sufficient environmental planning grounds to justify contravening the development standard?

45. For the reasons in pars 29 to 43, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the FSR development standard.

46. It follows that the appeal must be dismissed and the development application refused.

47. In support to this conclusion, I am satisfied that under SEPP 65, the proposal is not “good design” in that it does not “respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood” (Principle 1: Context and neighbourhood character) and does not provide good amenity through unacceptable“…. natural ventilation, …., visual and acoustic privacy,….indoor and outdoor space”, ( Principle 6: Amenity).

48. Pursuant to cl 6.21(3), development consent must not be granted as the proposed development does not exhibits design excellence having considered the following:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(d) (xii) achieving appropriate interfaces at ground level between the building and the public domain,

49. For completeness, I will briefly deal with the other matters in dispute.

Internal amenity

50. Expert advice on internal amenity matters was addressed by Ms Gabrielle Morrish, for the applicant and Ms Liz Bowra, for the council. The experts discussed the following contentions and reached agreement, subject to some minor amendments :

• cross ventilation,

• solar access,

• apartment size,

• private open space, and

• engagement with the public domain.

51. The remaining matters in dispute, and not addressed earlier in the judgment, relate to:

• insufficient private open space to ground floor units,

• separation from adjoining dwellings and

• accessible design.

52. Having found that the ground floor layout is unacceptable for a number of reasons, the insufficient private open space to ground floor units could be addressed as part of this exercise. I see no reason why there should be a non-compliance to the ground floor private open space.

53. The question of separation from adjoining dwellings is best left to be considered with any redesign although I would prefer Me Morrish’s more practical approach to this contention, if all other matters were satisfactory.

54. Finally, I also accept Ms Morrish’s evidence that the adaptability of the units should not be required at this stage, even though the process of adaption may require the removal of some walls later, if adaption is required.

Orders

55. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2016/631for the demolition of an existing commercial building and construction of a new residential flat building at 9 Power Road, Alexandria is refused.

3. The exhibits are returned with the exception of exhibits 1 and A.

_____________

G Brown

Commissioner of the Court

Decision last updated: 18 July 2017