Andalos Developments Pty Ltd v Lane Cove Council

[2017] NSWLEC 1255

Land and Environment Court

New South Wales

Medium Neutral Citation:	Andalos Developments Pty Ltd v Lane Cove Council [2017] NSWLEC 1255
Hearing dates:	1 - 2 May 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Residential flat building; non-compliance with development standard for building height; whether site is suitable for proposed development; whether development satisfies objectives of zone; whether waste collection appropriate.
Legislation Cited:	Environmental Planning and Assessment Act 1979; Lane Cove Environmental Plan 2009; State Environmental Planning Policy No 55 - Remediation of Land ; State Environmental Planning Policy No 65 – Design Quality of Residential Apartments
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Lane Cove Development Control Plan 2009; Apartment Design Code
Category:	Principal judgment
Parties:	Andalos Developments Pty Ltd (Applicant)   Lane Cove council (Respondent)
Representation:	Counsel: Mr R Lancaster (Applicant) Mr N Eastman (Respondent)   Solicitors: Ms A Spizzo Landerer & Company (Applicant) Mr T Bush Pikes & Verekers Lawyers (Respondent)
File Number(s):	270127/2016

Judgment

1. Andalos Developments (Andalos) lodged Development Application DA 69/2016 seeking consent from Lane Cove Council for demolition of 4 existing trees, excavation for 2 semi-basement levels and construction of a 4 level residential flat building over 2 basement carparking levels on Lot 229 in Strata Plan 43337.

2. Council refused consent and Andalos is appealing that determination.

3. Since the council determined the application and as the result of a conciliation conference held following lodgement of the appeal, the applicant has prepared amended plans and was granted leave to rely on those plans on those plans at the beginning of the hearing subject to payment of $2000 agreed costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct). Those plans form exhibit A in the proceedings.

The site and its context

4. The site is the last undeveloped allotment in a Strata Plan that is known as Linley Cove with a street address of 25 Best Street Lane Cove. The remainder of the lots within the estate contain residential flat buildings or townhouses and are located generally to the east and north east of the site. A 5m wide right-of-way acts as a private road and services the site and the remainder of buildings within the estate and is an extension of Best Street which links northwards to Penrose Street and Burns Bay Road.

5. A public reserve (Burns Bay Reserve) is located to the immediate south of the site. Tannery Creek runs through that reserve and the area adjacent to the creek is vegetated with a walking track providing access along the creek banks. Further to the southwest the reserve is used for sporting fields. An area of land reserved for Environmental Conservation adjoins part of the site to its north and this area is densely vegetated.

6. The site and some of the existing townhouses and units within the Linley Cove estate are visible from Burns Bay Reserve. Detached single and two storey dwellings are located on the opposite side of the reserve to the site with residential flat buildings located opposite the reserve downstream of the site towards the bay.

7. The area of the site is 1493m2 and the land falls from north to south with a level change of around 13m.

Background and the proposal

8. The application provides for the removal of the majority of trees and vegetation including a mature Eucalyptus saligna whilst retaining two trees, a casuarina at the southern end of the site and a pittosporum in the western corner would be retained.

9. To facilitate the construction of the proposed residential flat building excavation of the site is required with three basement parking levels proposed providing parking for a total of 21 cars, 2 motor bikes and 8 bicycles. Due to the slope of the land all of the upper level basement and part of the mid-level is above ground at the southern elevation of the building.

10. Vehicular access to the building is via a curved driveway that is elevated in sections and located to the north and west of the proposed building.

11. A lift provides access to the 4 levels of apartments above the carpark and to the proposed rooftop communal open space area at the eastern end of the building. A total of 13 apartments are proposed with a number that are two storeys in height to facilitate cross ventilation.

12. The building presents as 2 and 3 storeys to the internal roadway with 3 and 4 levels of apartments above the basement and undercroft areas fronting Burns Bay Reserve.

13. The western portion of the site will be managed as an Asset Protection zone with a proposed pedestrian accessway provided to link the internal estate roadway to the adjacent conservation area.

The planning controls

14. The site is zoned R4 High Density Residential pursuant to the provisions of Lane Cove Environmental Plan 2009 (LEP). Residential flat buildings, earthworks and tree removal are permissible with consent in the R4 zone.

15. Clause 2.3(2) of the LEP requires that the consent authority 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 R4 zone are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a high concentration of housing with good access to transport, services and facilities.

• To ensure that the existing amenity of residences in the neighbourhood is respected.

• To avoid the isolation of sites resulting from site amalgamation.

• To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

16. Part 4 of the LEP contains Principal development standards with clause 4.3 providing for a maximum building height of 12m for the site. The proposal exceeds that height and the applicant relies on the provisions of clause 4.6 which provide for exceptions to development standards. Clause 4.4 establishes a maximum floor space ratio (FSR) of 0.8:1 and the proposal is compliant with that development standard.

17. Clauses 5.0 Preservation of trees or vegetation; 6.1A Earthworks and 6.3 Riparian land of the LEP are relevant considerations in determination of the application however there are no contentions in relation to those provisions.

18. Lane Cove Development Control Plan 2009 (DCP) applies to the site with Parts A – Introduction; B – General Controls; C - Residential Development; F - Access and Mobility; H – Bushland Protection; J – Landscaping; Q – Waste Management and Minimsation and R – Traffic, Transport and Parking particularly relevant to the contentions in the case.

19. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55); State Environmental Planning Policy No 65 – Design Quality of Residential Apartments (SEPP65) and the associated Apartment Design Code (ADG) are also relevant to determination of the application.

20. The adjoining environmental conservation area is identified as vegetation category 2 on the council’s bushfire prone land map with part of the site identified as a vegetation buffer. NSW Rural Fire Service has issued recommendations in relation to construction and landscaping requirements with a requirement that the entire site be managed as an Inner Protection Area. The recommendations have been incorporated into the draft consent conditions.

The issues

21. The contentions in the case were detailed in the council’s Statement of Facts and Contentions filed with the Court on 7 March 2017 however, as a result of the joint conferencing process and through the preparation of further evidence in the form of expert individual reports and the amended plans now before the Court a number of contentions have been resolved. Those pressed by the Council are:

• The proposed development does not meet the aims of the LEP and in particular aims 1.2 (b) and (c);

• The proposed development exceeds the building height development standard and there are insufficient planning grounds to support that non-compliance; the additional height would create overshadowing and visual impacts to the adjoining public reserve and the design does not relate to the topography of the site;

• The proposed development does not meet the R4 zone objectives, in particular 1, 2 and 4;

• The proposed design fails to meet relevant provisions contained in the DCP, in particular in regard to setbacks, building separation, balcony/courtyard size, storage, number and mix of adaptable dwellings, a sufficient number of 3 bedroom dwellings;

• The proposed design does not address the site constraints nor provide a satisfactory level of amenity to future residents, in particular to overshadowing and accessibility and is not responsive to the provisions of SEPP65 or the ADG;

• The proposed development creates adverse impacts to the nearby dwellings in the complex;

• Inadequate provision has been made for waste collection

• The development is contrary to the public interest.

The evidence

22. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The issues raised are summarised as follows:

• Concerns regarding the build ability of the development and in particular during construction due to limited access available through the estate via the right-of-way; vehicles are likely to cause disruption/damage;

• Development will destroy existing views from the opposite side of Burns Bay Reserve;

• Development is excessive in terms of bulk and scale and therefore out of character with surrounding development;

• Non-compliance with relevant development standards and controls, particularly a 35% exceedance of the height standard;

• Removal of an unacceptable amount of vegetation from the site which acts as an important wildlife corridor;

• Tannery Creek provides habitat to a number of species and the proposed construction work will destroy the creek;

• Concerns for families and small children who use the reserve during the construction period;

• Development would negatively impact the amenity of Burns Bay Reserve;

• The influx of construction vehicles will place unacceptable pressure on the local road system and parking availability;

• Existing internal road (right-of-way) functions well in regard to collection of waste and recyclables with collection from kerbside.

23. Expert evidence was prepared in relation to Ecology and Landscaping and, as a result of the finalisation of their Joint Report, Exhibit 6, those experts were not required for cross examination as a number of the contentions were resolved.

24. Expert traffic evidence was heard from Mr A Morse for the applicant and Mr A Uddin for the council. Mr D Wilson provided evidence in relation to waste/recyclables storage and collection. They prepared a Joint Report, Exhibit 5.

25. It is common ground that the design of the proposed driveway to access the basement area which contains the waste collection facilities does not facilitate on-site collection of waste by any type of garbage truck.

26. The DCP includes extensive provisions in relation to waste management and minimisation in Part Q. The Aim of Part Q is to facilitate sustainable waste management within the Lane Cove LGA in a manner consistent with the principles of ESD with the following objectives:

1 Waste minimisation

a. To minimise resource requirements and construction waste through reuse and recycling and the efficient selection and use of resources.

b. To minimise demolition waste by promoting adaptability in building design and focussing upon end of life deconstruction.

c. To encourage building designs, construction and demolition techniques in

general which minimise waste generation.

d. To maximise reuse and recycling of household waste and industrial/commercial waste.

2 Waste management

a. To assist applicants in planning for sustainable waste management, through the preparation of a site waste minimisation and management plan.

b. To assist applicants to develop systems for waste management that ensures waste is transported and disposed of in a lawful manner.

c. To provide guidance in regards to space, storage, amenity and management of waste management facilities.

d. To ensure waste management systems are compatible with collection services.

e. To minimise risks associated with waste management at all stages of development.

27. The specific provisions for residential flat buildings are found at Part 4.3 which has the aim of encouraging source separation of waste, reuse, and recycling by ensuring appropriate storage and collection facilities for waste, and quality design of waste facilities. The objectives are:

• Ensure appropriate waste storage and collection facilities.

• Maximise source separation and recovery of recyclables.

• Ensure waste management systems are as intuitive for occupants as possible and are readily accessible.

• Ensure appropriate resourcing of waste management systems, including servicing.

• Minimise risk to health and safety associated with handling and disposal of waste and recycled material, and ensure optimum hygiene.

• Minimise adverse environmental impacts associated with waste management.

• Discourage illegal dumping by providing on site storage, and removal services.

28. The controls call for indoor waste and recycling facilities and, in residential flat buildings containing four or more storeys garbage chutes with communal or main waste recycling storage rooms, bulky waste storage rooms (where there are ten or more dwellings).

29. In regard to waste collection points, all bins must be collected onsite from either their usual storage point or from an onsite temporary holding area located inside the property boundary. If a temporary holding area is proposed as an on-site collection point for garbage and recycling bins, the area must be located inside the property boundary and close to the property vehicular entrance (<10m). If bins need to be moved from normal storage areas to a different location for collection purposes, it is the responsibility of agents of the owners’ corporation to move the bins to the collection point no earlier than the evening before collection day and to then return the bins to their storage areas no later than the evening of collection day. Bins are to remain in their on-site main waste & recycling storage rooms at all other times.

30. An open air on-site collection point for bulky waste presentation including the path of travel from the storage area to the collection point is required as larger trucks are used to collect bulky waste. The design and location of the waste storage and collection areas/facilities should be such that they complement the design of both the development and the surrounding streetscape.

31. The development must be designed to allow for on-site access by garbage collection vehicles in accordance with standards detailed in the DCP. In these instances, the site must be configured so as to allow collection vehicles to enter and exit the site in a forward direction and so that collection vehicles do not impede general access to, from or within the site. Access driveways to be used by collection vehicles must be of sufficient strength to support such vehicles. Access driveways and internal roads must be designed in accordance with Australian Standard 2890.2 Parking Facilities – Off-Street Commercial Vehicle Facilities – 2002 and the Council will require indemnity against claims for loss or damage to the pavement or other driving surface and indemnity against liabilities, losses, damages and any other demands arising from any on-site collection service.

32. The applicant provided further amended plans that attempt to better address the DCP requirements. Those plans, Exhibit R provide, in addition to the bin room and bulk storage room on Level -01, an at grade bin collection point in the north eastern corner of the site adjacent to the adjacent residential development and the private road/right-of-way.

33. Mr Wilson stated that the proposal did not satisfy the DCP requirement for on-site collection of waste as trucks would have to stand within the right-of-way whilst collecting bins. As part of the building contained 4 storeys, a garbage chute and compactor would also be required to service the bin room. Mr Wilson said that it would take around 5 minutes to empty the bins as the waste collectors have to bring the bins to the back of the truck and replace them into the storage area. A total of 8 bins would be allocated for the building with Mr Wilson stating that manual compacting would be required by a caretaker. He acknowledged that the Linley Cove estate was an unusual circumstance when compared to a residential flat building with direct frontage to a public road however says the council applied the DCP rigorously to all developments. He did not have any experience of the provisions being applied to similar estates however did say that the council had imposed the requirements on challenging sites with similar slope and constraints to the site.

34. Mr Wilson’s evidence is that if the Court found that it was not appropriate to impose a requirement for on-site collection then the location and siting of the proposed bin storage area was appropriate and the disruption to traffic would be minimal.

35. Mr Morse explained the proposed arrangements as involving the bins being brought to the proposed storage area using the bin lift to access the street level. The collection vehicle would stand within the right-of-way and collect the material. He says it is not always practical to provide for on-site collection and in the circumstance of the case and the grade/geometry of the proposed driveway it would not be appropriate to accommodate a waste collection vehicle on site. He cited the manner in which the remainder of the Linley Cove estate had its waste collection and considered that this was efficient and effective and that it would be safe and could be managed within the right-of-way. He concludes that even if Mr Wilson was correct in his estimation of the time taken to collect the bins that the system proposed is perfectly acceptable, would not result in traffic congestion and is a better and alternate solution to address the council’s objectives. He had prepared a diagram that indicated it would be possible for a vehicle to pass the truck when it was stopped to collect waste (Annexure D to Exhibit 5).

36. Mr Uddin remained concerned about the obstruction of traffic and pedestrians in the right-of-way during collection times saying it was not ideal.

37. All experts agreed that the location of the bin storage area as detailed in Exhibit R was appropriate.

38. The location of the bin storage area was also considered by the planning experts in the proceedings, Mr S Harding for the applicant and Ms M Li for the council. They disagree as to whether the amenity impacts of the location area acceptable in regard to the private open space to be allocated to the frontage of proposed unit 6, a townhouse style unit. They agree that the proposed 1.8m high enclosing wall is acceptable for privacy and Mr Harding says even 1.5m would be acceptable as the view to the courtyard is downward. Ms Li says 1.7m minimum is required and that a 1.8m high fence would result in a 3.6m high fence above the courtyard which would create overshadowing impacts. Mr Harding says not only would the impact be minor but the development still exceeds ADG requirements for solar access which Ms Li agrees but says the impacts of the bin area on amenity are significant.

39. The experts agreed that the bin area was at street level with the courtyard area stepped down the site with two intermittent planter box levels between the main useable area of open space and the proposed fence.

28. In regard to the contentions in the case there is no agreement between the planning experts on whether the development meets the aims of the LEP or the objectives of the R4 zone, the height of the building is appropriate, the proposal meets the relevant provisions of the DCP, SEPP 65 or the ADG, or creates adverse impacts on the amenity of nearby dwellings in the complex and the adjoining reserve located within the E2 – Environment Conservation zone.

29. Mr Harding had annexed an amended plan to the Joint Report, Exhibit 4, which provides for the conversion of three apartments so that they are all on a single level to improve accessibility. On that basis, 9 of the 13 apartments would be spilt level whereas in the Exhibit A plans before the Court 12 of the 13 have habitable rooms on two levels.

30. Ms Li says the existing residential flat buildings (RFB) in the Linley Cove estate are 3-4 storey high buildings with parking below. The existing developments along the southern side of the private road are 2 storey multi dwelling housing buildings providing a transition between the RFBs in the complex and Burns Bay Reserve to the south of the site. The existing RFBs in the complex are generally screened by the multi dwelling housing developments and trees from that reserve and the proposed building would be a 6 storey building above the ground level in the reserve.

31. Mr Harding says the scale of development is further reinforced by the parking levels, undercroft areas and rock shelves resulting from excavation and these factors make the effective height of development much greater and in some instances buildings present as 5 to 6 storeys in real terms when viewed from the public domain. The townhouses that are adjacent to the proposal all have two levels when viewed from the street but have significant undercroft areas that ”fill the gap” between the street floor level and ground below. The result is that they all have a consistent undercroft area that is visible from the open space area. The lowest residential level is at RL8.2 which is consistent with the floor levels of the adjoining townhouse development with the timber deck level of that development at RL 8.99. The gutter level of the adjoining townhouse is RL14.64 and the roof ridge is RL16.57. The parapet to the common open space is RL17.5 so the height difference between the two buildings is not so great as to say that they are not compatible together. The point at where the height difference is greatest, at the townhouse gutter line, is also the greatest separation. The closest point between the buildings is also the point at which the height is closest, the townhouse ridge being RL16.57 compared with RL17.5.

32. Mr Harding makes reference to an approved development however, this is not relevant to my consideration of the matter as my determination must be based on the merits of the case before me. He says that the site analysis plan highlights the proposed building footprint is both consistent with that approved footprint and the footprints of existing buildings in the precinct and sits in the context of surrounding developments therefore meeting the aims of the LEP. I do note however that, apart from setbacks, the primary issue in this case is non-compliance with the building height development standard and that the height of the approved building was less than that now proposed.

33. There is no agreement as to the context against which the development should be measured. Ms Li says that it is the immediate context of the Linley Cove estate whereas Mr Harding says that it is much wider and extends to the residential flat buildings at the western end of Burns Bay Reserve to the bay with consideration also given to the different scale of development and building heights within the estate. He says there is a need to look holistically at the site including the RFBs to the west and within the site and the development is not so different that it would have an adverse visible impact because the built form is not so vastly different. It will be seen from different contexts but the building, stepping down the site, should not result in visual impacts that warrant refusal of the application.

34. It is common ground that the building height exceeds the development standard contained in clause 4.3 of the LEP. A maximum building height of 12m is permitted and the building has a maximum height of 16.23m.

35. For consent to be granted, the applicant relies on the provisions of clause 4.6 of the LEP that provide for exceptions to development standards. A written request has been prepared the experts disagree as to whether it is appropriate to vary that standard. I address this threshold issue later in my judgment.

36. It is agreed that the development does not meet the front (7.5m), side and rear (6m) minimum setbacks prescribed in the DCP along with other controls relating to minimum balcony and courtyard areas, unit mix and sufficient storage areas. Ms Li says this demonstrates the development provides inadequate amenity for both its future occupants and its neighbours whereas Mr Harding says the concerns relate to the amenity issue that arises from bulk and scale when viewed from the open space to the south and from the townhouse to the east, both of which he says are acceptable. Ms Li says the reduced setback also reduces the ability to provide meaningful landscaping to assist in screening the development, particularly from the adjoining reserve and results in amenity impacts to the deck of the adjacent townhouse development due to proximity.

Conclusion and findings

49. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.

50. Clause 4.6 is in the following form:

(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

(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

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

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence……………….

51. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

52. The objectives of the R4 zone are detailed at [15]. The objectives of the Height of buildings development standard are:

(a) to minimise any overshadowing, loss of privacy and visual impacts of    development on neighbouring properties, particularly where zones    meet, and

(b) to maximise sunlight for the public domain, and

(c) to relate development to topography.

53. The applicant relies on a written request prepared pursuant to the provisions of clause 4.6(3) of the LEP (Exhibit L) seeking to vary the provisions of clause 4.3 of the LEP as it applies to Height of buildings. Clause 4.3 establishes a maximum building height of 12m whereas the proposed building height at its maximum is 16.23m, a difference of 4.23m.

54. For consent to be granted, I firstly must be satisfied that the request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

55. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consent departing from the standard;

5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.

56. The written request does not follow strictly any of these ways but rather argues that strict compliance with the development standard is both unreasonable and unnecessary. The reasons provided are summarised as follows:

• The site is steeply sloped and the variation to the height standard will not adversely impact on any adjoining properties.

• Application of the height standard would result in no visible change to the built form from the public domain.

• Despite the variation to the height limit the proposal achieves positive amenity outcomes for future residents and the existing surrounding residents.

• The proposal has a floor space ratio of 0.66:1 where the maximum permissible is 0.8:1.

• Council's height and FSR development standards have been carefully correlated.

• There will be no significant adverse amenity impacts on surrounding properties resulting from the variation to the roof height, lift overrun or the waste chute overrun with particular reference to privacy, overshadowing and solar access. The building is located on the north and eastern portions of the site and provides adequate building separation between the neighbour to the north.

• The building separation to the eastern neighbour is also satisfactory as there is a carport located between the site and that neighbour.

• The location of the building footprint has been carefully determined to provide the best outcome, as the site adjoins and APZ zone and a water catchment (riparian corridor).

• There will be minimal implications as the proposal is compliant in relation to the DCP controls for overshadowing.

• The proposed development is in line with the future character of the area envisaged by the other planning controls, in particular the R4 high density residential zone.

• There is a reasonable visual relationship with the adjoining development with appropriate separation distances.

• The proposed development provides for high-quality internal amenity.

• The proposed bulk, scale and massing are acceptable with the proposed FSR being below the maximum specified and the massing being consistent with other similar buildings within the estate. The adjoining RFB immediately to the north provides a significantly taller and more dominant and bulky built form than the proposal. In this context, the proposal will provide a built form which clearly transitions along and down its topography to provide a development that is compatible with its surroundings. Strict compliance would lead to a development that would be an inefficient use of the site with a scale that would not be in keeping with that of the estate. Achievement of this outcome for the sake of numerical compliance will not have any tangible visual or amenity benefits.

• The difference in the extent of impact between a development that achieves strict numerical compliance would not adversely impact the overshadowing, privacy or visual impacts on adjoining properties with the impacts demonstrated to be negligible on adjoining dwellings.

57. In addition, the request, under the hearing Public interest, considers the objectives of the R4 High Density Residential zone and the objectives of the Height of buildings development standard. The reasoning provided in the request in the assessment of whether the objectives of the development standard are achieved notwithstanding non-compliance with the standard could be applied as the first test in Wehbe. The reasoning is as follows:

Objective: to maximise sunlight from the public domain.

As demonstrated in the solar access diagrams, there will be no unreasonable impact on the sunlight access to the surrounding public domain.

Objectives: to relate development to the topography.

The development relates to the topography in the following respects:

The built form steps down along the Street from west to east in response to the downward Street slope. The site is irregular in shape and very shallow, resulting in a building footprint that is commensurate with this and somewhat less than the maximum suggested in the ADG of 18 m. Therefore it is representative of an appropriate single building mass that does not necessitate vertical articulation or transition via stepping. The site does not facilitate a building length which would require an appropriate stepped design in order to respond to the drastic changes in levels. Stepping in the building form will only result in a 'ziggurat' appearance, which is not representative of a desirable architectural response, as pointed out in the ADG.

The building responds to the topography in the sense that it provides units at a high level as to attain better internal amenity as opposed to provided units at ground level at the lower end of the site. As such the variation will provide a better outcome in terms of internal amenity.

58. In relation to the first objective i.e. to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, the request is said to address these issues in separate considerations other that consolidating the reasons. It concludes that the section of the building that exceeds the height control has minimal impact in relation to overshadowing as the proposed height exceeds the development standard along the southern boundary and the non-compliance will partially result in additional shadow being cast on the only potentially affected residential property to the east, however this property retains adequate solar access to both communal open space and internal areas.

59. The request addresses privacy and concludes that no adverse impacts arise due to the lack of windows in the eastern elevation of the building, proximity to a carport within the adjacent development and separation distances between buildings being sufficient to minimise any potential impacts.

60. In terms of the visual impact, the request states that the rear of the building also overlooks extremely vegetated sections of public open space along Tannery Creek and Burns Bay Reserve. In this context it concludes that there will be no visual impact as a consequence of the variation and despite the numerical value of the breach this will not be discernible from the surrounding areas. It concludes there are no significant implications in relation to the height non-compliance of the southern boundary. The units/unit portions that will result in a variance to the building height will be oriented towards the site’s southern boundary and away from the neighbouring residential properties.

61. The second test is whether there are sufficient environmental planning grounds to justify contravention of the development standard. In this regard the applicant’s written request relies on the following grounds:

• The proposal satisfies the objectives of the R4 High Density Residential zone and the objectives of the Height of Buildings development standard as described.

• The non-compliance with the development standard does not significantly contribute to adverse environmental impacts in terms of privacy, solar access, overshadowing, visual impacts or acoustic impacts.

• The non-compliance with the standard does not result in a scale of building that is out of character with the surrounding development, nor will it be incompatible with the desired future character of the locality as expressed in Council building envelope controls.

• The variation will also result in an improved environmental outcome of maximising development in the R4 high density residential zone on a site that has sufficient area and dimensions and is well located to accommodate that development. Strict compliance would lead to an outcome that does not utilise the full extent of the site and therefore, the site will be undeveloped. This would not have any tangible visual or amenity benefits.

Findings in regard to the written request

62. Having regard to the details provided in the request, I am not satisfied that adequate grounds have been provided that demonstrate that compliance with the building height development standard would be unreasonable and unnecessary in the circumstances of the case. That is because it has not been demonstrated that the proposed development will achieve the objectives of that development standard in particular, no assessment of the overshadowing impact of the development on the adjacent public reserve has been made. The objectives specifically anticipate the minimisation of any overshadowing of the development on neighbouring properties, particularly where zones meet. The development throws a shadow across the public reserve, a location where zones meet and the request does not, in my opinion sufficiently address the contention.

63. It was a matter that evidence was provided during the hearing as a result of questions raised by myself however this consideration, under section 4.6 of the LEP, is only reliant on the information provided in the written request and must not have regard to any evidence adduced during the hearing.

64. I am satisfied the request satisfactorily addresses the issue of privacy.

65. I cannot accept that the proposed development which pushes the bulk of the building towards the public reserve thereby breaching the height plane in that location goes anyway in minimising the visual impact on neighbouring properties. I do not accept the submission that neighbouring properties are restricted to properties that are used for residential purposes and consider that that objective extends to the public domain. Even if I am incorrect in this assumption, another objective requires that buildings should be designed so as to maximise sunlight within the public domain. Again, citing the bulk of the development in the southern portion of the site and exceeding the maximum building height cannot maximise (emphasis added) sunlight for the public domain.

62. Finally, I do not accept the proposition that the design of the building is one that relates the development to the topography but rather results in excessive excavation, unused undercroft areas and significant height variations which are contrary to the objectives of the development standard. Whilst Mr Harding compares relevant levels of the building to the adjacent development, that development is set further back from the reserve and has a pitched roof that is also set back. That design reduces the bulk and scale of that building whereas the straight wall height and the location of the proposed building do not incorporate those softening effects.

63. In relation to the environmental planning grounds included in the written request, similarly I do not consider that any of the reasons provided are sufficient grounds on which to base an exemption to the development standard. That is because of my findings above that there are adverse environmental impacts in terms of solar access, overshadowing and visual impacts and I consider that the scale of the building is out of character with surrounding development and would not be compatible with the desired future character as expressed in the Council’s suite of controls.

64. The written request is the only document against which the Court can measure the tests set out in clause 4.6(3) of the LEP and whilst there may be other environmental planning grounds that have been addressed in other evidence before the Court, they have not been included in the written request as environmental planning grounds that would justify variation to the development standard. Accordingly I am not satisfied, as required under s4.6(4)(a)(i) of the LEP that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or that there are sufficient environmental planning grounds to justify contravening the development standard.

65. Satisfaction that 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 is also required. Given my findings in relation to the development not being consistent with the objectives of the building height standard as outlined above, consideration of the objectives of the R4 zone is also required.

66. I accept that the development would provide for the housing needs of the community within a high density residential environment and also provide a variety of housing types within a high density residential environment. The third objective would not be relevant to the proposal and I have no evidence that the site is in a location where, if approved it would be provided with good access to transport, services and facilities, other than a suggestion that a 10 minute walking distance to the nearest bus stop is required. I do not consider that this would be good access to transport.

67. The site is well located in relation to passive and active open space facilities however, it is a considerable distance from any local shopping or service facilities. For that reason I am not satisfied that this objective is met however I do note the zoning of the site supports the provision of high residential density development.

68. Having regard to the evidence, I do not consider that the proposal would add adversely affect the existing amenity of residences in the neighbourhood.

69. The site is the last remaining a vacant allotment within the estate so tthere is no issue in relation to the isolation of sites that would require future amalgamation.

70. As the proposal involves the clearing of the majority of vegetation on the site, it cannot be said development will ensure that landscaping is maintained and enhanced as a major element in the residential environment. Whilst the area to the north and west of the proposed development will be maintained as an Asset Protection Zone, much of that area is taken up by the curved driveway access necessary to reach the basement levels of the proposal. Having regard to the proposed landscaped plan, it cannot be said that landscaping would be a major element within the development.

71. For these reasons, I am not satisfied that 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.

72. If I am wrong in the conclusion that I have reached on the jurisdictional test arising under clause 4.6 of the LEP, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.

73. In view of my findings in relation to the building height development standard and having regard to the evidence in the case, I cannot conclude that the proposed development is an appropriate development of the land in particular, the location of the building bulk in the south eastern corner of the site as it addresses Burns Bay Reserve does not achieve the objectives of the LEP nor the desired future character anticipated in the DCP. Whilst there may be other residential flat buildings to the west of the site that present with similar built form, this is not a reason that justifies variation to the current built form controls. Those buildings are not within the immediate visual catchment of the site and are out of context with the surrounding locality.

74. The site is not well screened by landscaping form the reserve so the high built form would be a dominant element in the locality, contrary to the objectives of the LEP and DCP.

75. Whilst the proposed changes suggested by the applicant through the proceedings are likely to address design quality and amenity impacts and could overcome potential privacy impacts to adjoining neighbours thereby addressing the remaining contentions in the case, I do not consider the proposal even if amended in that manner is an appropriate outcome for the site. I do consider that the proposed arrangements for collection of waster are satisfactory and meet the objectives of the DCP. Waste collection within the estate as a whole is, according to evidence of residents, operating in a satisfactory manner and the proposed bin location is, according to the expert evidence acceptable.

76. As the jurisdictional test has not been met, consent cannot be granted.

77. The Orders of the Court are:

1. The applicant is granted leave to rely on the Exhibit A Plans subject to payment of the council’s costs as agreed or assessed pursuant to the provisions of s97B of the Environmental Planning and Assessment Act 1979.

2. Development Application DA 69/2016 for demolition of 4 existing trees, excavation for 2 semi-basement levels and construction of a 4 level residential flat building over 3 basement carparking levels on Lot 229 in Strata Plan 43337 is refused consent.

3. The exhibits, other than exhibits A, B and 1, are returned.

_____________________

Commissioner Sue Morris

270127.16 Agreed Conditions (567 KB, pdf)

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Decision last updated: 30 May 2017