Arden CP Pty Ltd v City of Canterbury Bankstown

[2017] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arden CP Pty Ltd v City of Canterbury Bankstown [2017] NSWLEC 1448
Hearing dates:	27 June 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders pars 81 and 82
Catchwords:	MODIFICATION APPLICATIONS: two separate but related appeals against the refusal of two applications to modify an approved mixed use development - excessive height and impact on character – inadequate setbacks and building separation - poor solar and daylight access - inadequate communal and private open space - building design - configuration of car parking area - lack of variety of housing choice.
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65
Category:	Principal judgment
Parties:	Arden CP Pty Ltd (Applicant) City of Canterbury Bankstown (Respondent)
Representation:	Counsel: Mr M Seymour, barrister (Applicant) Mr A Seton, solicitor (Respondent)     Solicitors: HWL Ebsworth (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/73548, 2017/73549
Publication restriction:	No

Judgment

1. COMMISSIONER: These are two separate but related appeals against the refusal of two applications to modify an approved mixed use development at 548-568 Canterbury Road, Campsie (the site). The development comprises Buildings A, B, C, D and E. The separate modification applications relate to the same building but address modifications on Levels 1 to 6 (Appeal No. 2017/73548) and Levels 7 and 8 (Appeal No. 2017/73549), individually. Some contentions relate to both appeals.

Background

2. 20 November 2014 – approval of Development Application DA-509/2013 for "Demolition of existing site structures and construction of a mixed use development comprising ground floor commercial/retail units, 254 residential units and associated basement car parking". The six storey development was considered by the Joint Regional Planning Panel with Notice of Determination of Development issued by the council.

3. 15 March 2016 – approval of Modification (Development Application DA-509/2013/A) to Development Application DA-509/2013 for "Modification to approved mixed use building including additional basement parking" by the council.

4. 15 March 2016 – approval of Development Application DA-592/2014 for "Construction of additional two levels to approved six storey mixed use building comprising additional residential apartments" by the council. The application provided for a further 70 units for a total of 324 units.

The modification applications

Appeal No. 2017/73549 - Levels 7 and 8

5. Modification Application No. 592/2014/A proposes internal and external modifications to Development Consent No. DA 592/2014 on Level 7 and Level 8 of the approved building. The modifications propose:

• amendment to the overall facade of the design, including reduced street setback,

• amendment to the building separation along the southern boundary,

• a complete internal review of all units and floor plates,

• a change to unit mix to provide 6x1 bedroom, 10 x 1 bed plus study, 62 x 2 bedroom for a total of 78 units instead of the approved 24 x 1 bedroom, 46 x 2 bedroom for a total of 70 units, and

• additional rooftop elements.

6. The council maintains that the modification application should be refused because of:

• excessive height and impact on character,

• inadequate setbacks and building separation,

• poor solar and daylight access,

• inadequate communal and private open space, and

• lack of variety of housing choice.

Appeal No. 2017/73548 - Levels 1 to 6

7. Modification Application No. 509/2013/B proposes internal and external modifications to Development Consent No. DA 509/2013/A on Levels 1 to Level 6 of the approved building. The modifications propose:

• amendment to the overall facade of the design,

• amendment to the building separation along the southern boundary,

• a complete internal review of all units and floor plates,

• a change to unit mix to provide 18x1 bedroom, 21 x 1 bed plus study, 217 x 2 bedroom and 3x3 bedroom for a total of 259 units instead of the approved 92 x 1 bedroom, 148 x 2 bedroom and 14 x 3 bedroom for a total of 254 units,

• a complete reconfiguration of the design of the basement car park levels (including changes to the location and size of storage, lift wells, and bicycle parking within those levels), and

• a decrease in the commercial component from 1000sqm to 821sqm GFA but with the same number of commercial/retail suites.

8. The council maintains that the modification application should be refused because of:

• excessive height and impact on character,

• inadequate setbacks and building separation,

• poor solar and daylight access,

• inadequate communal and private open space

• building design,

• configuration of car parking area, and

• lack of variety of housing choice.

The site

9. The site is Lot 106, DP 624546 and is irregular in shape with a frontage to Canterbury Road of 117.95 m to the north, a frontage to Elizabeth Street of 27.7 m to the east, with a total site area of 8,275sqm.

10. The site has a slight cross fail from the north-west to the south-east of the allotment and access to the site is via Canterbury Road and Elizabeth Street

11. The streetscape of this portion of Canterbury Road is characterised by a mixture of low to high density residential, commercial and industrial development. The site is located in a transitional area with institutional uses to the north-east (Canterbury Hospital), mixed commercial/office uses to the east, light industrial uses to the rear/south, commercial/bulky goods retailing to the west and a six storey mixed use residential and commercial building to the north.

Relevant planning controls

12. The site is located with the B5 Zone - Business Development Zone of Canterbury Local Environmental Plan 2012 (LEP 2012). For the site, cl 1 of Sch 1 of LEP 2012 requires that: "Development for the purpose of residential accommodation is permitted with development consent, but only as part of a mixed use development". The B5 zone objectives are:

• To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

• To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

• To support urban renewal that encourages an increased use of public transport, walking and cycling.

• To encourage employment opportunities on Canterbury Road and in accessible locations.

13. Clause 4.3(2) provides that the “height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map”; the maximum height being 18m. The height objectives are:

(a) to provide effective control over the bulk of future development,

(b) to protect the environmental amenity and desired future character of an area,

(c) to minimise adverse environmental impacts on adjoining properties and the public domain,

(d) to optimise development density within easy walk of the railway stations and commercial centres.

14. Clause 4.4(2) provides that the “maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map”. The site and other sites in the B5 zone do not have a maximum floor space ratio (FSR) shown on the Floor Space Ratio Map so there is no applicable FSR for the site.

15. Canterbury Development Control Plan 2012 (CDCP 2012), as in force prior to 30 January 2017, applies.

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

Appeal No. 2017/73549 – Levels 7 and 8

17. Expert town planning evidence was provided by Mr Stuart McDonald for the council and Mr Ian Stewart for the applicant. Mr Nigel Dickson provided urban design evidence for the applicant.

Height/character

The evidence

18. The experts agreed that the modification did not increase the overall height of the building at 28.85m but the modification increases the amount of floor space that exceeds the height above the maximum height of 18m.

19. Mr Dickson states that the proposed modification is generally consistent in terms of setback with the exception of the reduced setback to the street for Levels 7 and 8 which results in a better urban design outcome than the consented development. The rooftop garden area has been expanded to improve amenity. The modifications are acceptable as they do not give rise to adverse impacts and they add significantly to residential amenity.

20. Mr Dickson further states that the increase in gross floor area (GFA) is minor and does not give rise to unacceptable adverse impacts in comparison to the consented development. The increase occurs for the most part due to the reduction in the northern setback of Level 7 and 8, bringing them in line with the levels below and creating a more streamlined podium/tower form rather than a ziggurat form.

21. Other areas where floor space has been increased are within the courtyard areas where the depth of the courtyard has been reduced by a small degree. In these locations, issues of privacy and solar access have been improved in comparison to the consented development. Floor space has been removed at the south eastern corner of Building B and the south western corner of Building C. This serves to improve visual separation and privacy between the two buildings and establish natural light to corridors. The modifications also increase building articulation significantly in this location. At the south western corner of Building A, built form has been reconfigured with a minor increase in GFA. The areas where floor space is increased is away from the streetscape and a highly articulated western facade is achieved. Thus the increase in GFA does not result in an excessive increase in bulk and scale when compared to the consented development.

22. Mr Stewart states that the proposed modification is generally consistent, in terms of the setbacks. A larger roof terrace area is provided and the layout of the roof top communal areas has been improved under the proposed plans as the lift overrun, stairs and mechanical plant are positioned to the south, nearer the neighbouring industrial zone, for improved sightlines and increased unencumbered space.

23. The relatively modest increase in GFA of approximately 4.8% is considered acceptable as the proposal improves the internal amenity of the development by achieving better separation between living areas, adequate solar access and improved communal open space areas. The street setback for Levels 7 and 8 has been realigned to be consistent with Levels 5 and 6 and the future street alignment. The modified building alignment is generally consistent with the adjoining 8 storey residential building at 538 Canterbury Road nearing completion.

24. Mr McDonald states that an additional 1,307 sqm of GFA is not modest or minor. The majority of this additional GFA is proposed at Levels 7 and 8 with the result that the height non-compliant section of the development is significantly expanded. Levels 7 and 8, as approved, already contain approximately 5,800 sqm of GFA over and above a height compliant development. The proposal is to add to the non-compliant component of the building by another 690 sqm. In his opinion, the proposal does not result in a better planning outcome and is an overdevelopment.

25. The core development standard for the site is a height limit of 18m. This height control would result in a built form character of 5-6 storeys. Notwithstanding that approval is in place for a development of 8 storeys, any further departure of the planning controls, by adding additional floor space above the 5-6 storeys will be a further departure from the desired future character. Any desired improvements to the design of the development are capable of being achieved within the approved envelope and GFA of 27,500 sqm.

26. Mr McDonald notes that given the approved height is a 60% variation on the 18m height standard, and a significant component of this approved floor space is within the non-compliant Levels 7 and 8, then there is no planning justification for adding further floor space and building bulk to this section of the building that is non-compliant with the height development standard.

Findings

27. On this matter, I agree with Mr McDonald for a number of reasons. First, and of some importance is that the basis for any comparison should be the relevant planning controls and not the approved development. It must be accepted that the planning controls in LEP 2012 have a purpose having been advertised, adopted by the council and ultimately made by the government in the form of a local environmental plan. The assessment of the proposed development cannot be undertaken in a planning vacuum.

28. Second, and while the amount of additional floor area is not always a reason to refuse a variation; I accept that it is in this case because it manifests itself in a prominent position in the streetscape. It is trite to say that the additional floor area creates “a more streamlined podium/tower form rather than a ziggurat form” when the question is relevantly about how the proposal responds to the anticipated character rather than a question about the quality of the architectural form given that is already substantially above the maximum height under cl 4.3. Similarly, the fact that the additional area does not increase the approved height is not a reason to support the additional floor area given that it is clearly visible from the street.

29. Third, and if the approach adopted by the applicant’s experts was adopted then it would only be necessary to prove a lack of environmental impact, better architectural outcomes or increased amenity to support variations to adopted planning controls – clearly a more sophisticated and rigorous approach is needed to support variations rather than the approach used by the applicant, in this case.

30. Fourth, the proper assessment of the height development standard has greater importance in determining whether a development is in keeping with the anticipated character of the given that there no restrictions on the amount of floor space that can be constructed on the site.

31. Fifth, the “filling in” of the street setback at Levels 7 and 8 removes any relationship with the 18m height standard (no matter how small) and also breaks the association with the adjoining development at 538 Canterbury Road where the adjoining part of this building provides a 6 storey elevation.

32. I am comfortable in concluding that the modification application should be refused for this reason alone.

33. Pursuant to the requirement to consider the design quality principles in cl 28(2)(b)) of SEPP 65, I am satisfied that the proposed development is inconsistent with Principle 1: Context and neighbourhood character, in that it is not of good design because it does not “respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood”

34. Also, the proposed development is inconsistent with Principle 2: Built form and scale, in that it is not of good design because it does not provide “an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements”.

35. Also, the proposed development is inconsistent with Principle 3: Density, in that it is not of good design because the proposed development does not achieve “a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context”.

36. I am also satisfied that the proposed development does not respond adequately to the second zone objective in that it does not “provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design”.

Inadequate setbacks and building separation

37. The contention on inadequate setbacks and building separation is addressed in more general terms in the discussion on Levels 1 to 6 for building separation although the reduced setback to Canterbury Road was considered unacceptable in a height and character context in the preceding paragraphs. The same conclusions would apply if considered in a setback context.

38. The joint report identifies the differences in the evidence of the experts, where I have found that the physical separation distances between are acceptable. Where recommendations have been made by Mr Dickson for fixed or angled privacy louvres to further reduce the number of privacy interfaces and improve the performance of the development while maintaining daylight are acceptable because they do not unreasonably impact on the use of the rooms and balconies. Similarly, I have found that the proposed development provides acceptable levels of solar access and natural ventilation.

39. As the separation distance, according to the ADG in 2F, performs other roles beside privacy, solar access and natural ventilation and includes communal open space (combined with deep soil for the provision of significant areas of vegetation), I have found that the proposal provides nor deep soil areas. The absence of deep soils is fundamentally inconsistent with the approach in the ADG and the aim of providing good residential amenity in the communal open space particularly given the size of the development and the number of units.

40. While there are two separate appeals, matters such as communal open space span both appeals. The later comments on this contention (pars 50-76) apply equally to both appeals as the issue of communal open space applies to all future residents of the building, irrespective of what level they are located on. The absence of deep soil is unacceptable and would be a reason alone to refuse the application. This strongly supports the evidence of Mr McDonald where he states the modifications are an over development of the site.

41. I am satisfied that the proposed development does not satisfy the second zone objective in that it does not “provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design”.

42. Pursuant to the requirement to consider the design quality principles in cl 28(2)(b)) of SEPP 65, I am satisfied that the proposed development is inconsistent with Principle 5: Landscape, in that it is not of good design because the proposed development does not result in a “attractive development(s) with good amenity” and a “positive image and contextual fit of well-designed developments … by contributing to the landscape character of the streetscape and neighbourhood”.

43. Also, I am satisfied that the proposed development is inconsistent with Principle 6: Amenity, in that it is not of good design because the proposed development does not contribute “to positive living environments and resident well being”.

Other issues

44. Having found that the appeal should be dismissed, it is not necessary to address each of the other contentions in detail however I agree with the comments of Mr McDonald that as a significant component of the approved floor space is within the height non-compliant Levels 7 and 8, then there is no planning justification for adding further floor space and building bulk to this section of the building that is non-compliant with the height development standard.

45. I also agree with Mr McDonald that there appears to be no reason why many of the improved amenity matters could not be achieved without the additional floor area proposed in this application.

Appeal No. 2017/73548 – Levels 1 to 6

Inadequate setbacks and building separation

46. Mr Dickson states that the number of adverse privacy interfaces arising in relation to residential development on adjoining sites and between buildings within the site is reduced in the proposed development, including views across corners. A significant number of balconies are situated less than 12 m from habitable room windows up to four storeys and 18 m above four storeys in both the approved development and the proposed modification however, the proposed modification has fewer of these interfaces. Where reduced separation distances still occur, proposed mitigation measures have been employed to achieve a very suitable outcome at many of the interfaces, even though the total separation distance set out in the ADG may not be strictly achieved. Mr Dickson recommends fixed, angled privacy louvres to further reduce the number of privacy interfaces, further improving the performance of the development while maintaining daylight. Should these privacy measures be applied, Mr Dickson maintains that the proposed modification application shall achieve a suitable privacy outcome.

47. In other circumstances where separation distances are less than ADG criteria and significant mitigation measures have not been employed, separations have been increased and the privacy condition is much improved. Interfaces are generally at oblique angles which avoids direct lines of site although the total separation distance is less than the ADG criteria. Mr Dickson notes that privacy interfaces remain very similar to the approved development. There are circumstances where the privacy impacts between particular units have been made more acute, generally in an attempt to improve solar access to individual units and this occurs in a number of instances. In these circumstances views are across corners and the closest interfaces are bedroom-to-bedroom. The grouping of like rooms mitigates to some degree potential privacy impacts.

48. Mr McDonald states that the existing approval includes areas of non-compliance with the ADG building separation provisions with resultant bulk, scale and amenity impacts. In some cases these building separations are reduced by the proposal. Mr McDonald provides plans showing the location of the increased building footprint, floor space and building bulk associated with Buildings A-D. The floor area is transferred to the upper levels where approximately 620 sqm of additional GFA is provided within Levels 1 to 6.

49. Mr McDonald also notes that the approved 6 storey building provided good levels of amenity for future occupants of the development, with good solar access (minimum 70%), natural ventilation (61%) and privacy. The proposal was determined to be generally consistent with the requirements of the Residential Flat Design Code (RFDC) that applied at the time, including building separation.

50. Mr McDonald states that if it is the applicant’s position that the proposal results in an improved design outcome, in terms of ADG performance of the apartments, he is not opposed however this needs to be considered in the context of the previous approvals on the site. Specifically, the approval of Development Application DA-592/2014 (the 2 additional storeys to comprise an 8 storey building) was also based on achievement of the minimum solar access between 9am-3pm mid-winter to living rooms and private open space to 70% of apartments, as well as 60% cross-ventilation, and the broader range of design criteria under the RFDC. The assessment noted that, for the development as a whole, 14.5% of apartments had a south orientation. Based on the assessments and determinations to date, the units within the approved development, and the development as a whole, meets the RFDC and as a result can reasonably be assumed to an acceptable outcome.

51. If the applicant wishes to explore options for enhancing the performance of units and amending the apartment mix, then this should be pursued within the approved building envelope and floor space, particularly bearing in mind the existing extent of non-compliance with the core building height development standard for the building as a whole (8 storeys and 60% variation to the height development standard). There is no reasonable planning justification for additional breaches of the planning controls in order to attempt to achieve any design improvements. The increase in GFA arising from the proposal is approximately 560sqm for Levels 1 to 6 and for the development as a whole in the order of 1,307 sqm. Replanning of apartment mix and floor layouts can be achieved within the terms of the approved envelope and floor space, particularly given that the approval already provides for approximately 27,500 sqm GFA.

Findings

52. Building separation is addresses Part 2F of the ADG. The aims are :

• ensure that new development is scaled to support the desired future character with appropriate massing and spaces between buildings

• assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook

• provide suitable areas for communal open spaces, deep soil zones and landscaping.

53. The ADG provides (at p34) that minimum building separation should increase proportionally with building height. Table 1 provides that up to 4 storeys the separation distance should be 6-12m and up to 8 storeys the separation distance should be 9-18m. The smaller separation distances are between non-habitable rooms and the larger separation distances are between habitable rooms/balconies.

54. From the aims, building separation is to address a range of matters made up of massing and spaces between buildings, residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook and the provision of communal open spaces, deep soil zones and landscaping.

55. Mr McDonald states that the existing approval includes areas of non-compliance with the ADG building separation provisions with resultant bulk, scale and amenity impacts whereas Mr Dickson acknowledges that there are reduced separation distances, however proposed mitigation measures have been employed to achieve a very suitable outcome at many of the interfaces, even though the total separation distance set out in the ADG may not be strictly achieved.

56. On the matter of bulk, massing and spaces between buildings, I am satisfied that these matters are acceptable and is not matters that would warrant the refusal for this reason even though there is not full compliance with the ADG separation requirements. While I understand the approach of Mr McDonald but in the absence of any controls on floor space, the additional floor area outside the approved building footprint, as shown by Mr McDonald (Exhibit 6, p13, Figure SM1 and SM2), is not a sufficient reason to support the contention that the bulk and massing of the proposed modification is unacceptable, even when compared to the approved footprint.

57. I am also satisfied that visual and acoustic privacy impacts are satisfactorily addressed. While Mr Dickson identified a number of fixed, angled privacy louvres to further reduce the number of privacy interfaces, these measures do unacceptably alter the form of the building or unacceptably impact on the use or outlook of the units or balconies.

58. The matters natural ventilation, sunlight and daylight access were addressed by Mr Dickson through a range of additional solar diagrams. Supporting Mr Dickson position is that, in his more recent assessment, the solar performance previously claimed is not as high as originally reported. His recent analysis now takes into account issues such as overshadowing from surrounding built form and potential self-shading. The analysis demonstrates that the proposed modification application performs significantly better than the consented development in regard to solar access through the number of south facing units has been reduced substantially and skylights have been added to improve overall access to day lighting for south facing apartments. The number of units which receive no solar access at mid-winter has also been reduced significantly. Also, the number of units which receive direct solar access has been increased and the number of corridors which receive natural daylight has increased significantly from 57% to 100%. I did not understand Mr McDonald to challenge these findings.

59. It was accepted by Mr Dickson that the number of cross-ventilated units has increased in the modification application although the development does not strictly achieve cross-ventilation as required by the ADG of 60% of apartments but rather the modification application now provides for 54% of apartments and cross ventilation could be increased by ensuring proposed and recommended clerestory windows and skylights are operable.

60. Again, Mr McDonald maintains that the previous 6 storey approval on the site provided acceptable levels of natural ventilation, sunlight and daylight access and given the breach of the height standard, the additional floor area cannot be justified. It is not possible to support his conclusions of Mr McDonald without a restriction on the amount of floor area and where, based on the evidence of Mr Dickson, the modification performs better than the approval of the 6 storey building for natural ventilation, sunlight and daylight access.

61. On the matter of communal open spaces, deep soil zones and landscaping, the experts agreed that the roof top communal open space area has been substantially enlarged and that the private open space provided for the ground floor units is satisfactory. They disagreed on the suitability of the changes to the ground level communal open space.

62. Mr Dickson states that the extension of the approved common rooftop open space is improved by providing additional usable area and additional green roof elements towards the northern portion of the site. The rooftop open space receives much better solar access than anything on ground level and provides a larger and more usable space than the ground level common open spaces as consented. Further modifications to the roof terrace are recommended to achieve a higher level of usability and amenity and in particular, increase the area of soft landscaping. These changes design changes are set out in a concept landscape sketch which recommends the addition of shading structures at the centre of the common open space, enhanced landscape planters around the perimeter of the terrace, toilet and baby change station and barbecues.

63. Mr McDonald acknowledges that greater areas of communal open space are now provided on the roof areas but argues that the communal open space, to the extent possible and feasible on a mixed use site should be located at ground level, particularly a large site such as the site. The reasons are that the area:

• is often more conveniently located for direct access from common circulation areas,

• can be combined with deep soil areas so as to provide a landscaped setting and substantial planting for shade and general amenity,

• is subject to passive surveillance from residents,

• on a large site, such as the subject site, being in excess of 8,000 sqm, it is achievable to include ground level communal open space and deep soil areas as opportunities exist to distribute the built form around the site and achieve a range of design objectives, and

• the vast majority of the ground level of the site is occupied by approved residential use, with only a relatively narrow strip of non-residential fronting Canterbury Road. As a result there is no design barrier to providing communal space at ground level, whereas in mixed use or business zones that don't allow residential use at ground level, such a design solution is not achievable.

64. Mr McDonald notes that the approved development includes some roof level communal open space and a substantial area of ground level communal open space, provided in 3 discrete locations between Buildings A-D, including some deep soil planting area. These areas are capable of accommodating both passive and active areas for residents. The communal open spaces are each approximately 85 sqm in area and a total of 255 sqm, directly accessible from the main entry locations and adjoining common circulation areas and ground level private open space. These areas appear to have been reduced in the modification application, along with the deep soil area, and replaced with an enlarged roof level communal area.

65. Mr McDonald states that the ADG includes design guidance regarding communal open space. In his opinion, the Objective and relevant Design Criteria and Design Guidance are not addresses by the modifications:

• the approved development includes substantial ground level communal open space including deep soil landscaping. The proposal removes the deep soil and appears to remove some of the communal open space and places a larger area at roof level without substantial planting and shade trees (Objective 3D-1), and

• the approved development includes 3 large areas of ground level communal open space that are well placed to service the respective buildings within the large site and directly accessible from the entrances to the site from Canterbury Road and adjacent to common circulation areas. There is also approved some rooftop communal open space, which provides an alternative space and experience for residents. The proposal places a greater emphasis on the communal open space on the roof with no substantial planting and weather protection (Design Guidance).

66. Mr McDonald notes that the 3 approved ground level communal open space areas each have generous dimensions of 5m x 17m for landscaping, communal facilities and a range of passive and active activities. Replacement of these spaces and greater emphasis on roof level communal open space is an inferior design outcome in circumstances where ground level space is able to be provided. For further support, Mr McDonald relies on the council's assessment report for the 8 storey approval that stated:

Deep soil areas and landscaping are provided within the central courtyard between Buildings A, B, C and D and around the periphery of Building E; and Roof terraces totaling 845m2 also enhance common open space provision. Ground level communal open space is proposed at 661 m2 resulting in a total of 18% of the site area allocated for common open space use.

Findings

67. The ADG provides requirements for Communal and public open space at 3D and Deep soil zones at 3E. These requirements are inter connected in some areas. Design guideline (3D, p53) states that “Communal open space should be co-located with deep soil areas”.

68. The functions of communal and public open space are described in the ADG (at p52) as:

The size, location and design of communal or public open space will vary depending on the site context and the scale of development. The function of open space is to provide amenity in the form of:

•l andscape character and design

• opportunities for group and individual recreation and activities

• opportunities for social interaction

• environmental and water cycle management

• opportunities to modify microclimate

• amenity and outlook for residents.

69. The Design criteria for communal and public open space requires an area of 25% of the site area (Design criteria 1) and the satisfaction of direct sunlight access criterion (Design criteria 2). Given the location of the communal open space on the roof of Buildings A to E, I accept that the numerical standards are satisfied. However that is not the end of the enquiry.

70. The function of Deep soil zones is described in the ADG (at p58) as:

Deep soil zones have important environmental benefits, such as allowing infiltration of rain water to the water table and reducing stormwater runoff, promoting healthy growth of large trees with large canopies and protecting existing mature trees which assist with temperature reduction in urban environments. Deep soil zones may be constrained by the size of the lot or the location of a proposed development. To provide shade and amenity for residents they can be co-located with communal open space.

71. Objective 3E-1 provides that:

Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality.

72. The Design criteria requires 7% of the site as deep soil on sites greater than 1,500 sqm, with a minimum width of 6m, although in the Design guidance section it is suggested, in some circumstances, that 15% of the site as deep soil on sites greater than 1,500 sqm be provided.

73. I agree with the comments of Mr McDonald on the matter of communal open space. Based on the ADG minimum requirement of 7% of the site area of 8275sqm; a deep soil area of around 580sqm is required and should be co-located with the communal open space area. The proposed modifications remove the only area of deep soil that can be used by the future residents of the site. This area was located between Building B and Building C and had approximate dimensions of 5m x 17m (85sqm). Even putting aside the approved undersized area of deep soil, it is unacceptable, on a site of 8275 sqm with 324 units to have no area where substantial planting can be located and that would provide “healthy growth of large trees with large canopies” and “amenity in the form of landscape character and design”.

74. The only other unbuilt upon areas are to the south where this area is to be used for future access and the 3m front setback to Canterbury which does not comply with the minimum width of 6m and is not really suitable for any passive residential use given the hostile environment of Canterbury Road, even if the setback to Canterbury Road was landscaped. Excluding these areas and some other smaller setbacks, the remainder of the site is used for the excavation of the basement car park, thereby denying the opportunity for deep soil and substantial vegetation.

75. In my view, the absence of any ability to provide any substantial landscaping (as well as the other matters associated with deep soil) is a significant negative aspect of the development and is sufficient to warrant the refusal of the modification application for this reason alone.

76. I am satisfied that the proposed development does not satisfy the second zone objective in that it does not “provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design”.

77. Pursuant to the requirement to consider the design quality principles in cl 28(2)(b)) of SEPP 65, I am satisfied that the proposed development is inconsistent with Principle 5: Landscape, in that it is not of good design because the proposed development does not result in a “attractive development(s) with good amenity” and a “positive image and contextual fit of well-designed developments … by contributing to the landscape character of the streetscape and neighbourhood”.

78. Also, I am satisfied that the proposed development is inconsistent with Principle 6: Amenity, in that it is not of good design because the proposed development does not contribute “to positive living environments and resident well being”.

Other issues

79. Having found that the appeal should be dismissed, it is not necessary to address each of the other contentions in detail however I agree with the comments of Mr McDonald that the question of whether the proposed development is an overdevelopment of the site must be answered in the positive. While overdevelopment is not a word that describes a specific issue with a proposed development, it nonetheless describes the result when one or more relevant considerations cannot be satisfied. In this case, the absence of deep soil is a symptom of the overdevelopment of the site.

Orders

80. The orders of the Court in Appeal No. 2017/73549 are:

1. The appeal is dismissed.

2. Modification Application No. 592/2014/A that proposes internal and external modifications to Development Consent No. DA 592/2014 on Level 7 and Level 8 of the approved mixed use development at 548-568 Canterbury Road, Campsie is refused.

3. The exhibits are returned with the exception of exhibits 3, D, G and J.

81. The orders of the Court in Appeal No. 2017/73548 are:

1. The appeal is dismissed.

2. Modification Application No. 592/2014/B that proposes internal and external modifications to Development Consent No. DA 592/2014 on level 1 to Level 6 of the approved mixed use development at 548-568 Canterbury Road, Campsie is refused.

3. The exhibits are returned with the exception of exhibits 2, C, F and H.

__________

G Brown

Commissioner of the Court

Decision last updated: 22 August 2017