Ahmad Corp Pty Ltd v Fairfield City Council

[2018] NSWLEC 1526

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526
Hearing dates:	30-31 August 2018
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The application to modify the development consent for the construction of a 6-storey mixed use development at 882-890 Woodville Road and 3-5 Howatt Street, Villawood (granted by the Land and Environment Court on 10 November 2015 in proceedings 15/10306), by adding one additional level comprising 12 residential units, is refused. (2) The exhibits are returned, except for Exhibits A, B, 4 and 6.
Catchwords:	MODIFICATION APPLICATION – development consent granted by the Court following conciliation – modification seeks an additional storey for the proposed development – whether substantially the same development – weight to be given to an urban design study and a planning proposal – whether intended character of the area should be taken from current controls or planning proposal – whether proposed modified development consistent with future desired character – whether proposed modified development minimises overshadowing
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Ahmad Corp Pty Ltd v Fairfield City Council [2015] NSWLEC 1450 Bassett and Joans Architects Pty Ltd v Waverley Council (No 2) [2005] NSWLEC 530 Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413 Parker Logan Property Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1333 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46
Texts Cited:	Fairfield Development Control Plan 2013 Villawood Town Centre Planning Proposal Villawood Town Centre Structure Plan 2008 Villawood Town Centre Urban Design Study 2018
Category:	Principal judgment
Parties:	Ahmad Corp Pty Ltd (Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: T To (Applicant)   Solicitors: Mills Oakley (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/254562
Publication restriction:	No

Judgment

1. Immediately south of Villawood train station is the Villawood town centre, an area characterised by aging retail uses despite development controls that encourage a higher density with mixed use development. At one of the sites within the Villawood town centre, known as 882-890 Woodville Road and 3-5 Howatt Street, development consent has been granted for the construction of a 6-storey mixed use development. The consent was granted by the Court on 20 October 2015 after an agreement was reached between Ahmad Corp Pty Ltd (“Ahmad”) and Fairfield City Council (“the Council”) following a conciliation conference held pursuant to s 34 of the Land and Environment Court Act 1979 (“the Court Act”). These proceedings are an application to the Court by Ahmad Corp Pty Ltd (“Ahmad”) to modify the consent by adding one additional storey to the approved development. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”), which was formerly s 96(8) of the EPA Act.

2. The development consent that is sought to be modified allows for the demolition of existing buildings, the consolidation of 7 existing lots into one single allotment, and the construction of a 6 storey mixed use development containing 71 residential apartments, 6 retail tenancies, and associated ground level and basement car parking.

3. The modification application the subject of these proceedings seeks to amend the consent to provide an additional level comprising 12 residential units and the addition of 9 basement car parking spaces. The total number of units would therefore increase from 71 to 83, and the building would become a 7 storey building. The 7th storey is proposed to have the same external design and setbacks as the 6th storey, except for the setback at the southern edge, which is set back from the 6th storey by 3 metres. The roof terrace that forms part of the consent is proposed to be replicated above the 7th storey. A garbage chute is also proposed to be incorporated into each level with an additional residential waste room/bin storage provided on the ground floor.

4. The Council opposes the modification application. The Council raises a jurisdictional question concerning whether there is power to grant the modification application, and much of the Council’s concerns with respect to the merits of the application relate to the height and number of storeys of the proposed modified development, and their impact. The issues raised in the Amended Statement of Facts and Contentions that remain in issue can be summarised as follows:

• The development as modified is not substantially the same as the development the subject of the consent, and therefore there is no power to grant the modification application (contention 1),

• The proposed modified development is contrary to the Villawood Town Centre Concept Structure Plan for the site (contention 2),

• The height of the proposed modified development is excessive as it is greater than the building height development standard established by the Fairfield Local Environmental Plan 2013 (“FLEP 2013”), is inconsistent with the objectives of the building height development standard, is inconsistent with the 6 storey height controls in Chapter 7 of the Fairfield Development Control Plan 2013 (“FDCP 2013”) and results in a building that is excessive in height, bulk and scale (contentions 3 and 4),

• The proposed modified development is inconsistent with Design Quality Principles in State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (“SEPP 65”) as it will be inconsistent and incompatible with future development of the area (contention 5),

• The proposed modified development will result in unacceptable levels of overshadowing to adjoining and surrounding properties (contention 7),

• The proposed modified development will set an undesirable precedent for similar inappropriate development, and is not in the public interest (contentions 8 and 9).

5. The Council also raised a contention that the proposed modified development will have inadequate solar access to the private open space of some the units (the first contention 8). However, the parties have now agreed that this can be resolved by a condition of development consent requiring that solar access be provided to the private open space of units 6-02 and 6-03, which can be achieved through roof openings or skylights.

6. Having considered the evidence before the Court and the submissions of the parties, for the reasons set out below I have determined that the proposed modified development is substantially the same as the development for which consent was granted, and that therefore there is power to grant the application. However, I have also determined that the intended character of the area is informed by the current controls, and that the proposed modified development is not consistent with, and does not complement, that intended character. As such, I have resolved to refuse the modification application.

Site and locality

7. A site inspection was conducted at the commencement of the hearing. The site comprises seven lots, and has a total area of 2,269m2. It is bounded by Woodville Road to the east, Howatt Street to the south, Villawood Place to the west and Cheryl Lane to the north. It has frontage of 55.415m to Woodville Road, of 61.09m to Howatt Street, of 22.775m to Villawood Place, and a combined frontage of 75.28m to Cheryl Lane. The site has a cross-fall of approximately 1.86m from the Villawood Place frontage (south-west corner) to the Woodville Road boundary at the north-east corner. An aerial view of the site is pictured at Figure 1.

8. The site is in the south-eastern portion of the Villawood town centre, which is a local centre within the Fairfield Local Government Area. The Villawood town centre is bounded by a railway line to the north that runs in an east-west direction, Woodville Road to the east, and low density residential development to the south and west. The centre is active and consists of business and retail uses to the east, currently comprising one and two-storey commercial developments that include an Aldi Supermarket, a fruit shop, a medical centre, a fast food restaurant, a bottle shop, two community centres and various discount retail shops. The southern portion of the centre, where the site is located, has a run-down character despite it containing active retail uses, which may be attributed to some of the sites being in a state of preparation for future redevelopment. The centre is well serviced by the train network at Villawood train station, which is immediately to the north of the town centre. Woodville Road is an arterial road that runs north-south, and is one of the main vehicular routes between the western and south-western areas of Sydney.

9. The Villawood town centre is at the commencement of a state of transition, with a number of development consents granted for multi-storey residential units within mixed use development. However, based on the site inspection, it appears that those consents have not yet progressed to construction.

10. The town centre is surrounded by residential developments to the west and south, and to the east on the opposite side of Woodville Road. The area to the south west is characterised by low density residential development comprised of one and two-storey detached dwellings, the area to the east on the opposite side of Woodville Road (which falls within the Canterbury-Bankstown local government area) is dominated by residential flat buildings owned by the Department of Housing.

Relevant matters for consideration on the modification application

11. The application is made to the Court pursuant to s 4.55(8) of the EPA Act. Section 4.55(8) allows all of the provisions of s 4.55 to extend to enable the Court to modify a consent granted by it. As such, each of the powers in subss 4.55(1), (1A) and (2) are conferred on the Court. Section 4.55(1) allows the modification of development consent to correct a minor error, misdescription or miscalculation. Section 4.55(1A) allows the modification of development consent for a modification of “minimal environmental impact”. Section 4.55(2) allows other modifications to development consent to be granted, and is the relevant provision for the purpose of the present application.

12. The exercise of the power in subs 4.55(2) requires the consent authority, in this case the Court, to be first satisfied that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”. If the Court is not so satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46).

13. Upon reaching the satisfaction that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted” and that the other matters in subs 4.55(2) are satisfied, subs (3) provides that:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

14. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

15. The site is zoned B2 Local Centre pursuant to the FLEP 2013, and commercial premises and shop top housing are uses permissible with consent within the B2 Local Centre zone. The objectives of the zone are as follows:

“• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide for shop top housing that supports local business activity.

• To ensure that mixed use developments include an active street frontage by locating business, retail and community uses at ground level.”

16. Clause 4.3 of the FLEP 2013 provides for a maximum height of 20m, whereas the proposal as modified would result in a building height of 27.9m. The objectives of cl 4.3 are:

“(a) to establish the maximum height for buildings,

(b) to ensure that the height of buildings complements the streetscape and character of the area in which the buildings are located,

(c) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development.”

17. Chapter 7 of the FDCP 2013 applies to the residential component of the proposal, as it states at 7.0 that this chapter “applies to all development applications submitted to Council for residential flat buildings (apartments) and the residential component of shop to housing over two storeys in height located in business zones.”

18. Part 7.4.2 of the FDCP 2013 concerns building height, and the control is as follows:

“Maximum permissible building height for any development must be consistent with the building height standards prescribed on the Fairfield LEP Building Height Map. Generally, a height limit of 16 metres (5 storeys) and 20 metres (6 storeys) applies to the R4 High Density Residential Zone.”

19. Despite the reference to the R4 High Density Residential Zone, there is no dispute that the 20m height development standard that applies to the site results in a 6 storey control for the site. This is supported by the Villawood Town Centre Structure Plan 2008, which identifies a 6 storey development for the site. Part of the Structure Plan is contained in Figure 2 below.

20. The Council has recently undertaken a Villawood Town Centre Urban Design Study (“Urban Design Study”) which was publicly exhibited and adopted by the Council on 27 March 2018. The study, inter alia, identifies the site as appropriate for a mixed-use development site with 9-storeys and active ground floor uses. It also identifies the site as one appropriate for a 30m height development standard. Consistent with the Urban Design Study, the Council has prepared a Town Centre Planning Proposal (“Town Centre PP”) that seeks to amend the FLEP 2013 to reflect the changes in standards for the Villawood Town Centre recommended by the Urban Design Study, including amending the Height of Buildings Map to increase the height limit for the site from 20m to 30m. The Council has endorsed the Town Centre PP, and the Department of Planning and Environment has considered the proposal and on 13 July 2018 issued a Gateway determination allowing the amendment to the FLEP 2013 subject to conditions, including a condition that the Town Centre PP be publicly exhibited. The Town Centre PP has not yet been publicly exhibited.

21. Neither the Urban Design Study nor the Town Centre PP are, of themselves, a mandatory consideration under s 4.15(1). However, they can be considered as they are relevant to the application and relevant to the “public interest” considerations in s 4.15(1)(e). There is a dispute between the parties as to what weight should be given to those documents in the context of considering the modification application.

22. Before turning to consider the Town Centre PP and the matters referred to in s 4.15(1) that are of relevance for the purpose of determining the modification application, I must first deal with the question of whether “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”. As set out above, this is a pre-condition to the exercise of the power to modify the development consent.

Is it substantially the same?

23. In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, the Court of Appeal endorsed the approach of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, in which His Honour found that the word “substantially” in this context means “essentially or materially or having the same essence.”

24. In considering this in the context of a predecessor to s 4.55(2)(a) in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 (“Moto Projects”), Bignold J observed (emphasis added):

“54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).”

25. In Vacik Pty Ltd v Penrith City Council, Stein J considered that whilst the use of the land will be relevant to the comparative exercise, that the use of the land remains the same is not determinative.

26. In Moto Projects, Bignold J determined that a modification application to remove separate ingress for vehicular traffic resulted in a proposal that was not substantially the same because that separate ingress was "a material and essential physical element of the approved development" (at [59]). This “material and essential physical element” was ascertained from the reasons given on the grant of development consent. Similarly, in Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, I considered the reasons given by the consent authority and determined that 3-storeys was an essential element of the development consent.

27. In Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241, Commissioner Morris determined that the modification application to add an additional storey to the building would result in a development that was not substantially the same because the 5-storeys was “an essential element of the council’s determination of the application”. The Commissioner reached that conclusion because the conditions of the development consent required additional storeys to be removed.

Comparison between the approved development and the proposed modified development

28. Mr Stuart McDonald and Mr Jeremy Swan, the town planners who gave expert opinion evidence, agree that the changes between the approved development and the proposed modified development can be summarised as follows:

• An increase in the number of units from 71 to 83, a 16.9% increase,

• An increase in the number of storeys from a six storey building to a seven storey building, an increase of 16.67%,

• An increase in the gross floor area of approximately 1000m2 from 5800m2 to approximately 6800m2, an increase of approximately 17.25%,

• An increase in the overall height of the development by 3.55m,

• An increase in the number of car parking spaces from 132 to 142,

• An increase in the height of the first floor by 300mm and increase in the floor-to-floor heights of each of the residential floors by 50mm, and

• No change to the basement envelope, the number of bicycle and motorcycle parking spaces, the amount of ground floor retail space, the quantity of podium common open space, the amount of deep soil planting, and the appearance of the first six storeys.

Circumstances in which the development consent was granted

29. In the present application, the development consent was granted following a conciliation conference and, as is the custom, the reasons given for the grant of development consent did not address the merits of the proposed development: see Ahmad Corp Pty Ltd v Fairfield City Council [2015] NSWLEC 1450. A Commissioner conducting such a conciliation conference is required by s 34(3)(a) to “dispose of the proceedings” in accordance with an agreement reached by the parties. At [3] of those reasons, it is explicitly stated that:

“In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.”

30. Additionally, as the appeal the subject of those proceedings was lodged following the period after which a development application is “deemed” to be refused, there was no assessment report prepared with respect to the proposed development.

31. As part of the orders made in accordance with the agreement reached at the conciliation conference, leave was granted to Ahmad to rely on amended plans, which reduced the scale of the development from a 9 storey mixed use development to 6 storeys.

32. The only other evidence of the circumstances in which the development consent was granted is a letter dated 8 April 2015 from a Senior Development Planner of the Council and addressed to Architecture Design Studio Pty Ltd. That letter sets out various issues with the development application for the 9-storey mixed use development as originally sought. In particular, the letter states at pages 1-2 (emphasis added):

“the site is subject to a maximum building height of 20metres (6 storeys) in accordance with Fairfield Local Environmental Plan 2013 Building Height Map. In this regard, the proposed 9-storey development with a building height of approximately 31.4m significantly departs from the allowable building height. The proposed variation from the building height development standard is considered excessive and does not appear justified in this instance.

The urban design analysis accompanied the application suggests additional building height for the subject site and adjoining properties within the Villawood Town Centre. The content of which has been noted. However, and as advised in Council's previous letters including the Development Advisory Meeting Notes, the proposed development, in its current form, is unlikely to be supported by Council.

Furthermore, the proposed scheme is inconsistent and does not comply with the building envelopes outlined in the Concept Structure Plan 2008 for the Villawood Town Centre.

The desired built form of the site is predicated on the amalgamation of lots north of Cheryl Lane. As such, the built form and scale of development for this site provides for a 6-storey perimeter building along the Howatt Street and Villawood Place frontage with a roof terrace to the rear facing Woodville Road instead of the built form proposed with the bulk predominately located along the Woodville Road frontage.

The building envelopes as set out in the structure plan outlines Council's vision for Villawood Town Centre and the height of which are· prescribed in Clause 4.3 of Fairfield LEP 2013.

Should you wish to pursue an alternative building height and built form that departs from the details in the structure plan, a planning proposal will need to be lodged to amend the height limit currently applicable on the site as identified in the Fairfield LEP 2013. This was outlined to you previously from Council's Strategic Land Use and Planning Division.

In view of the above, the significant departures from the Fairfield LEP 2013 and the Villawood Town Centre Structure Plan in respect to building height and built form are unlikely to be supported. Accordingly, the application shall be amended to achieve a maximum of 20m or 6 storeys and comply with the built form detailed in the Villawood Town Centre Structure Plan.”

33. The letter goes on to outline an additional 18 issues that need to be addressed. There is no other document that establishes the Council’s position with respect to the original development application or that records the reasons why an agreement was reached at the conciliation conference.

The Council’s position that it is not substantially the same

34. The Council submits that the proposal is not substantially the same because the 6-storey building form was a material and essential element of the development consent, and that therefore the proposed modification resulting in a 7-storey building is not “substantially the same” as the development for which consent was granted.

35. The Council relies firstly on the letter of 8 April 2015, which it says demonstrates that the 6-storey control and the 20m height development standard were important elements of the Council’s consideration. The Council submits that one can therefore draw the conclusion that the change from a 9-storey proposal to a 6-storey proposal was essential to the grant of consent, with the remaining breach of the height development standard limited to the parapet and lift overrun.

36. The Council relies secondly on the evidence of Mr McDonald, who opines that the reduction to a maximum of 6 storeys was a material and essential circumstance under which the consent was given. He considers the following aspects of the development consent to be its essential and material features (Ex 4, p.5):

“a. the approved development is consistent with the maximum six (6) storeys identified in the Villawood Town Centre Structure Plan;

b. no residential storey sits wholly above the maximum building height development standard and no residential floor level sits above the development standard. This is shown in the extract of the approved drawings below in Figure SM1 which shows a section through the building with the 20m height standard shown in dotted red. Figure SM2 shows the whole of the proposed additional storey above the development standard;

c. all of the residential floor space is contained within the maximum building height standard with the exception of part of the eastern section of the building towards southern end of the Woodville Road frontage;

d. the breach of the development standard relates largely to roof top structures; and

e. the application was amended during the assessment process to reduce from nine (9) to six (6) storeys in order to obtain consent.”

37. The Council submits that even if the background to the grant of consent is not known, the qualitative and quantitative changes that are proposed through the modification application are such that it is not substantially the same development. The Council says that these changes are not imperceptible, and cause actual impacts to adjoining development as well as adding bulk and scale to the development.

Ahmad’s position that it is substantially the same

38. Ahmad submits that the proposed modified development has the same essence as originally approved, as it remains for the same land use, is materially the same mixed use form of development, and there are no essential or critical elements of the approved development that can be discerned from the circumstances that would be altered by the modification application.

39. Ahmad submits also that the Court cannot be satisfied that the circumstances of the consent identify any essential element such as a 6-storey building form. It refers to the decision of Commissioner Tuor in Parker Logan Property Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1333, in which she considered a modification application following a grant of consent arising from an agreement reached at a conciliation conference held pursuant to s 34 of the LEC Act, and said (at [26]):

“Even if the “circumstances” are relevant, in this case the consent was granted on the basis of a s34 agreement and there is no documentation or evidence before the Court, other than plans prior to the s34 conciliation conference and the plans approved under the Development Consent, which can demonstrate the “circumstances” given that there is no written assessment of the DA under s 79C of the EPA Act.”

40. As to the evidence of Mr McDonald, Ahmad submits that his opinion can only be considered speculation and inference, given that he has no personal knowledge of the circumstances of and leading to the s 34 agreement.

41. Further, Ahmad submits that the letter relied upon by the Council does not support the interpretation that the Council would never have approved a development that was something other than 6-storeys. Rather, Ahmad says that the letter required amendments to the proposal “to achieve a maximum of 20m or 6 storeys… and comply with the built form detailed in the Villawood Town Centre Structure Plan”. Notwithstanding this, the Council agreed to the grant of development consent for a built form that exceeded the height development standard and had a form that did not comply with the Structure Plan. As such, Ahmad submits that there is no evidence that the Council would not have agreed to something other than a 6-storey development.

42. Finally, Ahmad submits that consistent with the decision of Commissioner Moore in Bassett and Joans Architects Pty Ltd v Waverley Council(No 2) [2005] NSWLEC 530, the mere passing of a planning control or standard, is not a relevant matter for consideration in determining the question of whether a proposed modified development is substantially the same.

The proposed modified development is substantially the same

43. Firstly, I accept the submission made on behalf of Ahmad that there is no essential element of the development consent that is readily identifiable from the circumstances of the grant of the consent.

44. Whilst Moto Projects provides authority for considering “the circumstances in which the development consent was granted”, in my view care must be taken in considering anything other than the consent itself or the reasons given for the grant of consent.

45. In the present proceedings it is clear, in the final orders made by the Court, that the development application was amended by plans that changed the built form, including by reducing the built form to 6-storeys. This allows the inference to be drawn that on those amendments to the plans being made, the Council agreed to the grant of development consent. Nevertheless, it is speculative to draw the conclusion from this that the 6-storey form of the building is an essential element of the development consent. The amendment to plans resulted from the decision of Ahmad to so amend the development application, and there is no evidence that any aspects of the amendment were at the Council’s behest (save for the letter of 8 April 2015, which is considered below) or were essential to the Council’s decision to agree to consent being granted.

46. This is distinct from what was before the Commissioner in Innerwest 888 Pty Ltd v Canterbury Bankstown Council, where the conditions of the development consent required the built form to be amended and the Commissioner was therefore able to discern that there was an essential element of the built form. It is also distinct from Moto Projects and Ozzy States Pty Ltd v Canterbury-Bankstown Council, in which an essential element of the consent was explicit and discernible from the reasons for the grant of consent or the assessment report.

47. Secondly, the letter of 8 April 2015 is not sufficient to identify an essential element of the development consent. The letter was based on a preliminary assessment, and there is no evidence that it informed the agreement by the Council to the grant of development consent. Further, the letter clearly identifies two aspects that it describes as “significant issues”, and then goes on to raise a large number of other issues. The first significant issue is the non-compliance with the building height development standard, and the second is the non-compliance with the building envelopes outlined in the Structure Plan. The latter issue was not just concerned with the number of storeys, but also with a desired built form predicated on amalgamation with other sites. In relation to the desired built form, the letter states “the built form and scale of development for this site provides for a 6-storey perimeter building along the Howatt Street and Villawood Place frontage with a roof terrace to the rear facing Woodville Road instead of the built form proposed…”. As such, when the letter reaches a conclusion with respect to these significant issues, it states that “the application shall be amended to achieve a maximum of 20m or 6 storeys and comply with the built form detailed in the [Structure Plan]” (emphasis added). Notwithstanding the content of the letter, consent was ultimately granted for a built form that was not consistent with the Structure Plan. As such, I do not accept that it establishes that the Council would not have agreed to development consent for anything greater than 6-storeys.

48. Thirdly, the fact that there is a 6-storey control applicable to the site, and that the development application was amended to comply with that control with only roof elements and parts of the 6th storey breaching the height development standard, is not sufficient to establish that the compliance with 6-storey control is an essential element of the development for which consent was granted. I accept the submission made on behalf of Ahmad that Mr McDonald’s opinion in this respect is speculative, as it draws an inference in the absence of evidence around the circumstances in which the development consent was granted or agreed to.

49. Fourthly, I’m satisfied that the proposed modified development is qualitatively the same development as that for which consent was granted. The proposed modified building retains the same use, and the same building typology, as that for which consent was granted. It remains a multi-storey mixed use development with ground floor retail uses, and the addition of another storey does not materially change the development or the essence of the development.

50. Fifthly, although the changes proposed through the modification application are quantitatively significant when expressed as a percentage, I accept that they are not so large so as to transform the development. The increase in the floor space, the storeys and the overall height is significant, but is not so large as to change its essence or render it something other than “substantially the same development”.

51. For these reasons, I accept that s 4.55(2)(a) is satisfied, and that there is therefore power to grant the modification application.

Evidence and submissions on the merits of the modification application

52. There were no submissions by resident objectors concerning the application. Mr McDonald and Mr Swan, town planners, prepared a joint report and gave expert opinion evidence with respect to the merits of the modification application. That evidence falls within the general categories of inconsistency with the Structure Plan; the weight that should be given to the urban design study; height, bulk and overshadowing; and undesirable precedent.

Inconsistency with the Structure Plan

53. The Structure Plan (replicated in [19]) sets out the road network and storey controls for the town centre, with a height of 8 levels in its core, tapering to 6 levels to the north adjacent to Villawood train station and to the south toward adjoining residential development. The area to the west is marked as “Stage 2”. A note directed to the block on the west of Villawood Place, which is marked for 6 levels, states “Upper levels setback for Villawood Place and additional height to be considered subject to urban design analysis at DCP stage.”

54. Both Mr McDonald and Mr Swan agree that the Structure Plan identifies the subject site as having 6 levels in a perimeter L shaped configuration with a roof terrace. They agree that the street network and built form approved by the Council in the area is different to that shown in the Structure Plan. They also agree that the building height in the Structure Plan is consistent with the 20m height development standard established by the FLEP 2013.

55. Mr McDonald’s opinion is that the approved development is consistent with the Structure Plan insofar as it shows a building height as 6 storeys on the subject site. Mr McDonald opines that the proposed modification is therefore inconsistent with both the building height in the Structure Plan and the 20m height development standard established by the FLEP 2013.

56. Mr Swan instead opines that there is already inconsistency with the Structure Plan as the built form the subject of the development consent is not consistent with the built form and road layout set out the Structure Plan.

57. It is accepted by the parties that the FLEP 2013 appears to have been a translation to the Standard Instrument form of LEP, rather than generated as a result of a strategic planning review.

58. Mr Swan relies on the Urban Design Study as reflecting the current strategic plan for the town centre. He points out that it identifies the subject site as a mixed use development site with 9-storeys and active ground floor uses, with a height control of 30m.

59. Further, Mr Swan points out that the Structure Plan suggests that subject to future urban design analysis, extra height on the subject site (above the levels in the Structure Plan) will be considered. The Urban Design Study is such an analysis. As such, he opines that the proposed modified development is supported by the Urban Design Study with the extra height as envisaged by the Structure Plan.

60. Ahmad also relies on evidence that the Structure Plan is an interim strategy that was put in place for the period during which a development control plan for the town centre was being prepared. The Outcomes Committee report prepared for the meeting of the Council on 10 October 2017 outlined the following background and history concerning the preparation of the Urban Design Study:

“BACKGROUND

The preparation of Villawood Town Centre Development Control Plan is identified as a deliverable under the Fairfield City Operational Plan 2016-2017.

The purpose of the draft VUDS (Attachment A) is to provide the framework to inform the development of site specific controls as part of a future planning proposal for the Villawood Town Centre. These will replace the current Villawood Structure Plan 2008.

History

The redevelopment of the Villawood Town Centre and immediately adjacent Kamira Court precinct has been the subject of a planning exercise that has been undertaken over several years.

In 2006 the then Department of Housing (DoH) commissioned a draft plan with the aim of providing a planning framework for land located in the Kamira Court precinct. As the result of development pressures within the commercial centre, Council requested that any draft plan for the Kamira Court precinct be prepared in context of all surrounding land including the commercially zoned land located in the Villawood Town Centre.

The draft plan commissioned by the DoH resulted in some unresolved issues mainly relating to the built forms in the Kamira Court precinct. Due to the mounting numbers of development applications in the Villawood Town Centre, Council adopted an interim policy position (Villawood Structure Plan 2008) to allow these applications to be assessed in an appropriate manner and timeframe.” (Emphasis added)

61. Further, Ahmad relies on the Residential Development Strategy (RDS) adopted by the Council in 2009. It refers to a strategy to “ensure future dwellings are located in close proximity to centres [and] transport” and includes structure planning that focuses of six key centres within the eastern half of the Fairfield LGA. One such centre is Villawood. The RDS identified that there is capacity for these size centres to provide an additional 14,400 dwellings within the centre catchments, which is 60% of the 24,000 additional dwellings target (see Ex F, pp 64-65). To assist with the implementation of the structure planning, the RDS states that Urban Renewal Master Plans will be prepared for each centre (Ex F, p115).

62. The RDS also sets out structure plan principles that are specific to Villawood, including to “Extend high density area within walking distance of commercial core and railway station, in the medium term” (Ex F, p113). It then states that “Villawood is a short to medium term priority location for the preparation of an Urban Renewal Master Plan”.

63. Consistent with the RDS, in July 2015 the Council commenced a planning proposal to rezone residential land immediately west of the Villawood Town Centre from R3 Medium Density Residential to R4 High Density Residential, and increase the height development standard for that area to 20m, the same height development standard that presently applies to much of the town centre. The planning proposal was identified as “Phase two” of the implementation of the increase in residential density around the town centres sought in the RDS (Ex D, Tab 9, p.4). This planning proposal received Gateway determination in 2016, and has been publicly exhibited. Mr McDonald’s evidence is that the proposal is subject to further work due to concerns raised by Roads and Maritime Services (“RMS”).

64. It is in this context that in November 2016 the Council engaged consultants for a new urban design study of the Villawood Town Centre, the result of which is contained in the Urban Design Study. The Urban Design Study describes the town centre as an “under-performing local centre”, with a “run down character [that] is reflective of a history of economic decline” (Ex D, Tab 4, p.1). It also identifies the limitations of the Structure Plan by saying that since its adoption “there has been a significant shift in expectation at all levels of government for effective urban consolidation, particularly in locations adjacent to railway stations and transport nodes” (Ex D, Tab 4, p.7). The Urban Design Study then makes it clear that its purpose is to “build upon the core principles of the Structure Plan to establish a whole of centre planning framework for the Villawood Town Centre.” In April 2018, the Council resolved to prepare a planning proposal to reflect the Urban Design Study.

65. Based on this evidence and the opinion of Mr Swan, Ahmad submits that the strategic direction of the Council has been to abandon the Structure Plan and plan for higher density. As such, it submits that little weight can be given to the Structure Plan.

66. Conversely, Mr McDonald’s evidence is that, despite the Urban Design Study, the maximum height remains 20m under FLEP 2013, which came into existence after the 2008 Structure Plan and remains the statutory control. He opines that there is consistency between the Structure Plan showing 6 storeys and the 20m height development standard. The Council therefore submits that the Structure Plan remains relevant and the current height development standard remains in place.

The Urban Design Study and the Town Centre Planning Proposal

67. Ahmad submits that the strategic direction of the Council and the desired future character of the Villawood town centre should instead be taken from the Urban Design Study and the Villawood Town Centre PP. Ahmad submits that in adopting the Urban Design Study and moving forward with the Town Centre PP, the Council has abandoned the 2008 Structure Plan and taken steps consistent with its implementation of the RDS.

68. In support of this submission, Ahmad relies on the fact that the Council’s Town Centre PP reflects the controls envisaged by the Urban Design Study. In the justification supporting the Town Centre PP, it states that “The Planning proposal is a result of the Villawood Town Centre Urban Design Study (VUDS). The VUDS was prepared to provide greater density and housing choice within close proximity to Villawood Train Station.”

69. For these reasons, Ahmad submits that the strategic direction for the Villawood Town Centre is for higher density and greater heights than what the current controls allow, and that both the Urban Design Study and the Town Centre PP should be given significant weight in the assessment of the modification application.

70. In support of this submission, Ahmad refers to the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472, in which His Honour considered the relevant matters in determining the weight to be given to a planning policy, as follows (at [92]):

“To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

• the extent, if any, of research and public consultation undertaken when creating the policy;

• the time during which the policy has been in force and the extent of any review of its effectiveness;

• the extent to which the policy has been departed from in prior decisions;

• the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.”

71. Ahmad therefore submits that, given that the Urban Design Study has been researched and widely consulted, and is consistent with the Town Centre PP, is would be given significant weight as compared to the 2008 Structure Plan.

72. Ahmad also relies on the evidence of Mr Swan that the Town Centre PP, which aligns with the Council’s strategic plan, will be eventually adopted and result in changes to the FLEP 2013. His evidence is that based on his experience with planning proposals for other local government areas (such as that for Leppington in Camden Council), there is sufficient strategic planning to support the Town Centre PP, he has never experienced a planning proposal ‘fall over’ due to the position of the RMS, and as a result, with the proximity of the town centre to public transport, there is sufficient certainty that the Town Centre PP will move forward without any change to the proposed increase in the height development standard.

73. As to the timeline for the amendment to the FLEP 2013, the evidence of Mr Swan (based on correspondence with officers of the Council) is that the exhibition of the Town Centre PP has been delayed due to additional information sought by RMS. He says that otherwise, the dates on the timeline have been met for the report to the Council and the Gateway Determination. As such, Mr Swan opines that the project timeline is on track to see the amendment to the plan made by April 2019.

74. Ahmed submits that, based on this evidence, planning outcomes consistently sought by a council are likely to be achieved, with the only uncertainty relating to the timing.

75. On the other hand, Mr McDonald’s evidence is that the strategic process that the Council is undertaking through the Urban Design Study is consistent with base-line strategic planning regularly undertaken in the Sydney urban environment and may or may not result in changes to the planning controls. Mr McDonald observes that there is no publicly exhibited Planning Proposal and no draft DCP. He opines that any potential change to the current planning controls, should they occur, is sometime away in the future and is not imminent or certain. His oral evidence was that in his experience, planning proposals can change or may not be pursued following public exhibition, or even prior. He gave evidence with respect to the planning proposal for the residential area to the west of the town centre, that although that has been on public exhibition, feedback from the RMS has raised concern about the increased density along Woodville Road and so there remains doubt as to the outcome of that planning proposal. His evidence is that this has occurred notwithstanding that the RMS did not raise concerns during the exhibition of the urban design study that informed that planning proposal. Contrary to the evidence of Mr Swan, Mr McDonald’s experience is that he has been involved in planning proposals (such as in the Canterbury-Bankstown Council area) that have not eventuated in a change in development standards due to RMS feedback concerning traffic on an existing arterial road. His evidence is that the current context is distinct from Mr Swan’s experience with Leppington, which is a greenfield development area. Based on Mr McDonald’s experience in planning proposals for established areas, he is uncertain as to what the position of the RMS will be with respect to increased densities proposed in the Town Centre PP. On his evidence, that is just one example of what could change throughout the consultation process. As a result, he opines that no one can be certain as to whether the planning proposal will result in a change to the height development standard.

76. The Council submits, therefore, that based on the evidence of Mr McDonald, there is no certainty that the height development standard will increase, and it would be irresponsible to pre-empt the outcome of the process embarked upon in the Town Centre PP. As such, it submits that little weight can be placed on the Town Centre PP or the Urban Design Study, and the focus must be on the current controls.

Height, bulk, scale and overshadowing

77. The Council’s position is that the additional storey means that the proposed modified development:

• Departs significantly from the height development standard, with a height of 7.65m above the standard (a departure of 38.25%),

• Results in a bulk and scale that is inconsistent with the intended character of the area for 6 storeys,

• Results in an additional overshadowing to adjacent properties, and

• Is therefore not consistent with the objectives of the height development standard and the design quality principles of SEPP 65.

78. The Council relies on Mr McDonald’s evidence, who opines that:

• The departure from the height development standard will result in a scale and height that is inconsistent with the intended character of the area as expressed both by the 20m height standard and the 6 levels/storeys documented in the Structure Plan and Part 7.3.1 of the FDCP 2012. As a result the proposed modification is inconsistent with objective (a) of the height development standard, which is to “ensure that the height of buildings complements the streetscape and character of the area in which the buildings are located.”

• The proposed increased height, above the development standard and above the approved height, does result in additional-overshadowing directly attributable to this additional height. This is an unnecessary, avoidable and unjustified impact arising from a significant non-compliance with the development standard. It is also inconsistent with objective (c) of the height development standard to minimise the “loss of solar access to existing development.”

• Although the approved development also departs from the height development standard, the approved building substantially contained all residential floors below the maximum building height standard. The relatively minor breaches of the height standard are predominantly associated with roof top structures and the lift overrun and as a result the impacts were minimal, particularly overshadowing. Introducing a whole residential storey of 1000m2 in area and of considerable bulk, results in demonstrable and avoidable impact that would not otherwise be anticipated by the current controls.

• There are no specific circumstances that warrant a further departure from the development standard. The fact that the site is located in proximity to transport is not, of itself, a reason to modify the development by way of a substantial departure from the height development standard. The planning controls applicable to the site and the Villawood town centre are recognition of the appropriate form and scale of development for the precinct.

• The cumulative impacts of the additional building height and bulk together with additional overshadowing impacts to residential properties suggests that there are no environmental planning grounds to justify the proposed modification.

• The proposal to add an entirely noncompliant seventh storey is a substantial departure from the local planning controls as represented by FLEP 2013 and FDCP 2013 and will not achieve Design Quality Principles 1 and 2. This is because it does not appropriately respond and contribute to the context and desired future character of the area, as expressed in the relevant provisions of FLEP 2013 and FDCP 2013, and it does not achieve a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

79. Both Ahmad and the Council agree that “the streetscape and character of the area” (referred to in objective (a) of the height development standard) should not be informed by the current character of the area, as the current character is not reflective of either the current controls or those in the Town Centre PP.

80. Ahmad instead submits that the intended character of the area should be reflective of the Urban Design Study and the Town Centre PP, and relies on Mr Swan’s evidence as follows:

• The proposed modification satisfies the objectives of the height control as the additional height does not cause any disruption of views or loss of privacy, and does not result in any loss of solar access that would result in existing development not achieving the required solar access in accordance with Council's planning controls.

• The proposed additional storey is setback an additional 3010mm from the storey below, resulting in the top storey being 5.973m from the southern boundary fronting Howatt Street which minimises the visual impact including bulk and scale and solar access to existing development.

• The desired local character is informed by the Town Centre PP and the Urban Design Study, with which the proposed modified development is consistent.

• The overshadowing impacts do not result in any residential property not receiving the required sunlight under the Council’s controls, and all of the existing properties receive adequate solar access.

81. With respect to the overshadowing of existing development, Mr Swan and Mr McDonald agree that additional overshadowing is estimated to be caused by the modification to the development (with the limitation that there is no survey information for the existing development likely to be affected). The additional overshadowing caused by the modification can be summarised as follows:

• At 9am, the dwelling at 19 Hilwa Street will have a 50% loss of light to the north facing window. By 9:15am, there is no overshadowing by the proposed modified development.

• At 9:15am, at 21 Hilwa Street the private open space at the rear of the dwelling will have a loss of 12m2 of direct sunlight and one of the rows of what appears to be a clear Perspex panel (or photovoltaic cell) over a carport will have a loss of 50% direct sunlight.

• The private open space at the rear of the dwelling at 23 Hilwa Street will have a loss of 4-6m2 of direct sunlight for about 30 minutes between 9:30am and 10am.

• The west facing façade of the public housing residential flat building on the corner of Howatt Street and Woodville Road will have an additional loss of direct sunlight to west facing windows and the communal open space, such that there will be an additional loss of sunlight to the ground floor window between 2:15pm-2:30pm, to the first floor window between 2:30pm-2:45pm, to the level two window from 2:45pm and total loss of sunlight to the level two window from 3pm.

82. Both Mr McDonald and Mr Swan agree that the impact on each property can be described as minor. However, Mr McDonald opines that cumulatively they have an impact that is unreasonable as it is caused by a 38% departure from the development standard. He opines also that the impact on the Department of Housing development is significant because the nature of that property is that it has a lower standard of amenity, and occupants rely on communal open space. As such, he opines that any loss of that amenity through overshadowing creates an unreasonable impact if it is caused by a non-compliant development.

83. Relying on the evidence of Mr Swan, Ahmad submits that the height of the proposed modification is acceptable because it is consistent with the objectives of the zone and height standard, does not result in any adverse amenity impacts, has only minor solar access impacts that are contemplated by the increased height considered appropriate by the Council in the Town Centre PP and the Urban Design Study, and has a setback of the top storey from the southern edge which minimises the overshadowing and ensures the bulk and scale of the modification is reduced. Ahmad submits that even if the Court was to consider that the application was not consistent with the objectives of the height development standard, the modification application can nonetheless be granted given its minor impacts.

Precedent

84. The Council submits that the modification application should be refused on the basis that approval of the proposed modified development will set an undesirable precedent for similar inappropriate development. This is supported by the evidence of Mr McDonald, who opines that acceptance of the modification would undermine the future implementation of the planning controls and in so doing may establish a precedent. Mr Swan considers that each development must be assessed on its own merits.

The application does not complement the local character as established through the current controls

85. On considering the evidence before the Court and summarised above, I have determined that the application should be refused as the proposed modified development does not complement the character of the area as informed by the current controls, and is inconsistent with the desired future character of the area as established through those same controls. My reasons are as follows.

86. Firstly, I accept the submission of the Council that little weight can be given to the Urban Design Study and the Town Centre PP. I accept the evidence of Mr McDonald that the Urban Design Study is consistent with strategic planning regularly carried out by councils, and that there is no certainty as to whether the Town Centre PP will proceed in its current form and result in an amendment to the FLEP 2013 consistent with the Urban Design Study. Rather than accept the evidence of Mr Swan that all planning proposals supported by a strategic planning review (such as the Urban Design Study) proceed without amendment, I prefer the evidence of Mr McDonald that a planning proposal may not proceed for a variety of reasons. I accept his evidence that one such reason could be concerns by the RMS about increased intensity along a major arterial road such as Woodville Road. This is supported by his evidence about planning proposals in other council areas that have not proceeded for that very reason (forcing that council to form a different strategy). It is also supported by his evidence concerning the delays in the planning proposal for the residential area to the west of the town centre. Further, even without those potential concerns arising, I accept the Council’s submission that it would be inappropriate to pre-empt the outcome of the Town Centre PP by applying the development standards therein, particularly when the Town Centre PP has not yet been exhibited. To do so would be to subvert the process that the Town Centre PP must undergo before amendments to the FLEP 2013 are made.

85. Secondly, it follows from this that the character of the area and its desired future character must be informed by the current controls. I accept the Council’s submission in that regard. I accept the evidence of Mr McDonald that the intended character of the area is expressed both by the 20m height standard and the 6 levels/storeys documented in Part 7.3.1 of the FDCP 2012. To this end, the Structure Plan provides the strategic background to the 20m height standard and Part 7.3.1 of the FDCP 2012, and to the extent that it relates to “levels” or storeys it is therefore also informative of the intended character of the town centre. However, the departure of the road network and of existing approvals from the road layout and massing depicted in the Structure Plan means that little weight can be placed on it informing the intended character of the area insofar as massing and built form are concerned.

86. Thirdly, I find that the 7-storey proposed modified development is not consistent with that desired future character and does not complement the intended streetscape and character of the Villawood town centre. In that regard, I accept the evidence of Mr McDonald that introducing a whole residential storey above the height development standard, resulting in a breach of that standard by 38% with a 7th storey of 1000m2 in area and of considerable bulk, does not complement a streetscape intended for 6 storeys. The additional setback of 3m on the southern side of the additional storey is not sufficient to reduce the overall bulk of the 7th storey or ameliorate its presentation as a 7 storey building, particularly when approaching the town centre along Woodville Road.

87. Therefore, for these three reasons together, I consider that it is not appropriate to grant the modification application as the proposed modified development would be inconsistent with objective (b) of the height control in the FLEP 2013 to “ensure that the height of buildings complements the streetscape and character of the area” and would be similarly inconsistent with the SEPP 65 Design Quality Principles 1 and 2 to identify and respond to “the desirable elements of an area’s existing or future character” and achieve a “scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.” As such, the modification application should be refused on that basis.

88. Additionally, I accept that to grant the modification application would create an undesirable precedent. I accept the evidence of Mr McDonald that acceptance of the modification on the basis of the Town Centre PP would undermine the future implementation of the planning controls, and as such, I accept it would create an undesirable precedent for the town centre that an application can be granted on the basis of a planning proposal that has not yet proceeded to implementation.

89. For completeness, I turn to the question of overshadowing and whether there is consistency with objective (c) of the height control in the FLEP 2013 to “minimise the loss of solar access to existing development” (cl 4.4(1)). I accept that the overshadowing impact is minor, and that the proposed additional 7th storey uses an additional setback of 3m to achieve the objective of minimising the overshadowing impact to properties to the south. However, I do not accept that the proposed modification minimises the overshadowing to be caused to the Department of Housing property to the east, in relation to which I accept the evidence of Mr McDonald that occupants would be more sensitive to impacts on their amenity. I acknowledge that, consistent with the submission made on behalf of Ahmad, this could be resolved through a direction for amended plans to provide an additional setback to the eastern edge at the 7th storey. However, there is no evidence that such amended plans could go so far as to resolve my determination above that the 7th storey is not consistent with the local character as defined by the current controls. As a result, the modification application should be refused on the basis of that determination.

90. The Court orders that:

1. The application to modify the development consent for the construction of a 6-storey mixed use development at 882-890 Woodville Road and 3-5 Howatt Street, Villawood (granted by the Land and Environment Court on 10 November 2015 in proceedings 15/10306), by adding one additional level comprising 12 residential units, is refused.

2. The exhibits are returned, except for Exhibits A, B, 4 and 6.

……………………….

Commissioner Gray

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Decision last updated: 09 October 2018