Basil Doumit v Canterbury - Bankstown Council

[2018] NSWLEC 1028

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Basil Doumit v Canterbury - Bankstown Council [2018] NSWLEC 1028

Hearing dates:

28-29 November 2017

Date of orders:

15 March 2018

Decision date:

30 January 2018

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The orders of the Court are:

(1)            The applicant is granted leave to rely on amended plans as listed in Condition 5 of Annexure A;

(2) Pursuant to section 8.15 (previously 97B) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs as agreed or assessed arising from the amended plans referenced in paragraph [3] of this judgement;

(3)            The appeal is upheld;

(4)            Consent is granted to Development Application No. 635/2015 for demolition and erection of a six storey mixed use development with basement parking at 504 Burwood Road, Belmore subject to conditions in Annexure A;

(5)       The exhibits are returned with the exception of Exhibit 1, the applicants plans filed on 27 February 2018 and the annexed conditions.

Catchwords:

DEVELOPMENT APPEAL: Proposed mixed use development – variation to floor space sought – whether the density of the proposed development is appropriate – bulk and scale of proposal – adequacy of parking provision – impact on neighbouring properties.

Legislation Cited:

Canterbury Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy 65: Design Quality of Residential Apartment Development

Cases Cited:

Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 113
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]
Glenayr Avenue Pty Ltd v Waverley Council [2013] NSWLEC 125
Hrsto v Canterbury City Council (No. 2) 2014 LGERA 184
Lane Cove Council v. Orca Partners Management (No. 2) (2015) 208 LGERA 114 at [219]
Luxcon Developments No 6 Pty Limited v Woollahra Municipal Council [2017] NSWLEC 1426
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Wehbe v Pittwater [2007]NSWLEC 827
Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Apartment Design Guide
National Construction Code 2016
AS /NZ 2890.6: Parking facilities Off-street parking for people with disabilities
RMS Guide to Traffic Generating Developments
AS 2890.1: Parking facilities

Category:

Principal judgment

Parties:

Basil Doumit (Applicant)
Canterbury‑Bankstown Council (Respondent)

Representation:

Counsel:
Mr T To (Applicant)

  Solicitors:
Mills Oakley (Applicant)
Mr C Zoppo, Lindsay Taylor Lawyers (Respondent)

File Number(s):

2017/00069670

Publication restriction:

No

Judgment

1. COMMISSIONER:    This appeal has been lodged by the applicant in response to the refusal by Canterbury - Bankstown Council of consent for a mixed use development. The applicant seeks approval for demolition and erection of a six storey mixed use development. The development consists of a single commercial tenancy at ground floor, basement parking and 5 levels of residential units. The development is proposed at 504 Burwood Road, Belmore.

2. Following the termination of the conciliation the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation in September 2017. The amended plans encompass the following main changes to the proposal:

1. the provision of a third basement level and the raising of the building by 500mm to achieve vehicle clearances;

2. addition of screening to the retail parking fronting Wilson Avenue;

3. creation of additional landscaped area at the ground floor;

4. an increase in setbacks to the side boundaries and the street frontages.

3. Leave was granted at the commencement of the proceedings to a further set of amended plans that sought to address the Council’s contentions and the evidence of the expert planners. The hearing was delayed to allow further joint conferencing of the experts. The application for leave was not objected to by Council subject to the consideration of the costs involved in the reassessment of the application. It was agreed by the parties that the amendments are not minor (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]), and costs under Section 97B of the Environmental Planning and Assessment Act 1979 (the Act) arise.

4. The further set of amended plans make the following main changes to the proposal:

1. a reduction in the number of units in the proposed development by three units;

2. the deletion of the third basement level;

3. increase in the driveway ramp width from 3m to 4m;

4. relocation of the communal open space from level 5 in the building to level 2;

5. changes to the setback provided to Wilson Avenue as follows:

• a setback of 2m at Level 3 & 4,

• a setback of 5m at Level 5;

6. a reduction in the number of parking spaces provided to 14, comprising two retail and 12 residential.

5. As amended the development incorporates a single commercial tenancy at the ground floor, two levels of basement parking and ten residential units within a six storey building.

6. Despite these amendments the Council maintains that the application should be refused on the grounds :

1. the development is in part not characterised as “shop top housing” and is therefore prohibited;

2. the density of the development is excessive and the proposal has inappropriate bulk and scale. As a result the requested variation to the floor area standard should not be granted;

3. the development has unacceptable impacts on the adjoining properties; and

4. the development fails to provide appropriate parking and loading for the residential and commercial use.

The site and its context

7. The site is a corner allotment with frontage to Burwood Road and Wilson Avenue, Belmore. The allotment has an area of 422.7m² and is currently occupied by a single storey retail corner shop and ancillary accommodation.

8. It is acknowledged by the parties that the site is in a locality that is undergoing transition with new development approved or under construction. Appended to the applicant’s variation request is an aerial photograph that details the approvals and construction currently occurring in proximity to the site. This is relevant to the consideration of the desired future character for development.

Subject site is identified in red outline.

9. The site is located at the interface of commercial and medium density residential development.

Public submissions

10. No residents addressed the Court as part of the hearing.

11. The Council tendered submissions from an adjoining party that raised the following issues in relation to the application:

1. the proposed development will block out sunlight to the neighbouring properties; and

2. the proposed development has unacceptable impacts on the privacy of adjoining properties.

12. These issues and any impact that may arise from amendments to the proposal granted leave during the proceedings have been considered in the assessment of the proposed development.

Planning Controls:

13. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65), a design verification statement was lodged by Ziad Boumelhem, registered architect (8008). The development compliance with SEPP 65 is in dispute between the parties.

14. Pursuant to Clause 28 of SEPP 65 in determining a development application, consent authorities are required to take into consideration the Apartment Design Guide (ADG). Relevant to these proceedings are the following sections of the ADG:

1. Objective 3B-2 Overshadowing of neighbouring properties is minimised during mid-winter.

Design guidance

Living areas, private open space and communal open space should receive solar access in accordance with sections 3D Communal and public open space and 4A Solar and daylight access

Solar access to living rooms, balconies and private open spaces of neighbours should be considered

Where an adjoining property does not currently receive the required hours of solar access, the proposed building ensures solar access to neighbouring properties is not reduced by more than 20%

If the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond minimums contained in section 3F Visual privacy

Overshadowing should be minimised to the south or down hill by increased upper level setbacks

It is optimal to orientate buildings at 90 degrees to the boundary with neighbouring properties to minimise overshadowing and privacy impacts, particularly where minimum setbacks are used and where buildings are higher than the adjoining development

A minimum of 4 hours of solar access should be retained to solar collectors on neighbouring buildings

2. Objective 3D-1 An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping.

Design criteria

1. Communal open space has a minimum area equal to 25% of the site (see figure 3D.3)

2. Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter)

Design guidance

…

Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should:

• provide communal spaces elsewhere such as a landscaped roof top terrace or a common room

• provide larger balconies or increased private open space for apartments

• demonstrate good proximity to public open space and facilities and/or provide contributions to public open space

3. Objective 3J-1 Car parking is provided based on proximity to public transport in metropolitan Sydney and centres in regional areas.

Design Criteria:

1. For development in the following locations:

• on sites that are within 800m of a railway station or a light rail stop in the Sydney Metropolitan Area; or

• on land zoned, and sites within 400m of sites zoned B3 Commercial Core, B4 mixed use or equivalent in a regional centre

the minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating Developments, or the car parking requirement prescribed by the relevant Council, whichever is less.

…

15. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate had been submitted with the original development application, and the relevant requirements incorporated in the proposal. An updated BASIX certificate reflecting the amended plans has been provided to the Court.

16. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned B2 Local Centre. Development for the purpose of ‘Commercial premises” and “shop top housing” are permissible with consent in the zone.

17. The relevant objectives of the B2 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 facilitate and support investment, economic growth and development for active, diverse and well-designed centres.

18. Part 4 of LEP 2012 contains principal development standards. Relevantly clause 4.3 designates a maximum building height of 18 m. The planning experts agree that the amended plans before the Court comply with the building height standard (Exhibit M).

19. At clause 4.4 Floor Space Ratio (FSR), LEP 2012 designates a maximum FSR for the site of 0.5:1. The proposed development seeks to vary this standard to allow a development with an FSR of 1.92:1.

20. The applicant has lodged a clause 4.6 variation request seeking to vary the maximum FSR (Exhibit 2).

21. The relevant objectives of clause 4.4 are:

(a) 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.

22. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

23. However, development consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

“(a) 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.”

24. Whether the Court accepts the applicant’s clause 4.6 variation requests in relation to the variation to height and FSR is a jurisdictional precondition to consent.

25. The development is subject to the requirements of Canterbury Development Control Plan 2012, amendment 3 (DCP 2012). The following provisions of the DCP are relevant to the appeal:

1. Part 3: Business Zones

Objectives for Business Centres

O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function.

O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal.

O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres

…

O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians.

06. Impacts of commercial development on adjacent residential properties are minimised.

2. Clause 3.1.1 Envelope Controls

Note: Building envelopes define a three-dimensional form that limits the extent of a building. The height, length and depth of building envelopes are defined in metres. Building envelopes are at least 20-25 percent greater than the achievable floor area of a building.

Objectives:

O1: the form and shape of new buildings is defined by building envelope controls

O2: the appearance and performance of (the) development is an important consideration in designing, rather than building to the maximum building envelope

Controls:

i Building envelopes are defined by a combination of controls that include:

• building height

• building depth

• building separation

• building setbacks

• side and rear setbacks to residential zones.

…

iii The maximum building envelope is not always achievable due to the need to comply with other requirements of the CDCP; as a general guide 75-80% of the specified building envelope will be achieved to allow for building articulation and the particular circumstances of the site or proposal.

3. Clause 3.1.8 Setback

Objective

O1. Establish the desired spatial proportions of the street and define the street edge.

…

O3. Minimise building size and bulk by setting back upper storeys.

O4. Minimise impacts on adjoining properties.

…

Controls:

i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table.

Number of storeys at the street and setback	Upper level setback
B2 zone	1-3 storeys Build to front boundary	Fourth storey – 3m Greater than four storeys – 5m (all storeys to be set back this distance including the fourth storey)

…

Side Setback:

vi Do not provide a side setback in the B1 or B2 zones when the desired character is for a continuous street frontage, unless (vii) – (xii) below apply.

…

On Boundary with residential zone – side setback

viii Establish a 45º height plane projected at 1.5m from the residential boundary

ix Provide a minimum 1.5m setback to the residential zone boundary

x A two storey limit on the boundary with the residential zone applies. (Refer Figure 3.4)

4. Clause 3.1.12 Car Parking

Controls:

(i) The number of car parking spaces and bicycle spaces are provided in the table to part 6.8

(ii) The number of service bays required will be determined based on the merits of individual proposals.

…

5. Clause 6.8.2 Parking and loading generally

i. The number of service bays required will be determined based on the merits of individual proposals.

26. The DCP provisions are a mandatory consideration and a focal point of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However, Section 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151). Relevant to these proceedings the applicant seeks to vary the setback controls within DCP 2012.

Expert Evidence

27. In line with the issues in dispute in the proceedings the parties engaged experts in town planning, and traffic engineering.

The experts for the applicant were:

Mr R Varga - Engineering;

Mr J Mead - Town Planning.

The experts for the respondent were:

Mr A Albaba - Engineering;

Mr A Rowan - Town Planning.

28. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.

Permissibility: Shop Top Housing

29. Council and Mr Rowan argue that, as a result of amendments that have occurred during the redesign of the proposal, Unit 103 no longer falls within the definition of shop top housing. The relevant definition in LEP 2012 is:

“Shop top housing” means one or more dwellings located above ground floor retail premises or business premises.

30. It is Mr Rowan’s evidence that as a result of moving retail car spaces from under Unit 103 to the front of the site in the basement, this part of the building no longer constitutes shop top housing and is therefore not permissible (Exhibit 6). Residential accommodation is a prohibited use in the B2 zone.

31. In the alternative it is Mr Mead’s evidence that the proposal “remains permissible as shop top housing as the residential components of the development are at all points, higher than the uppermost part of the commercial/ retail component” (Exhibit 6).

32. For consent to be granted I must be satisfied it is permissible. The Court has held that a residential unit may be located above ground floor retail space, provided it is located at a level higher than the ground floor retail space. It is not necessary for the unit to be directly above: Hrsto v Canterbury City Council (No. 2) 2014 LGERA 184 at 155 [34] and 158 [56] Sheahan J, Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 113 at [21] Moore SC and Luxcon Developments No 6 Pty Limited v Woollahra Municipal Council [2017] NSWLEC 1426 at [38-40].

33. I accept the evidence of Mr Mead and concur that in applying the principles established by the preceding cases I can be satisfied the proposed development is consistent with the definition of shop top housing and is permissible.

The issues

34. A fundamental issue remaining for determination in this appeal is whether the proposed FSR of the development is acceptable, and consequently that the variation in the FSR control is well founded and worthy of support.

35. Subsequent to the determination of this precondition the remaining merit issues for the Court to determine are:

1. whether the setback variation to Wilson Avenue is acceptable;

1. whether the shadow impact from the proposed development on the open space of 506-508 Burwood Road is acceptable; and

2. whether the development provides appropriate parking and loading for the residential and commercial use.

Was the FSR control applied to the subject site in error?

36. In simple terms the applicant argues that the FSR control was applied to the site in error and that as a result the Court should give the standard a reduced weight in the assessment of the application.

37. Council’s comprehensive LEP was gazetted in 2012 applied a height and FSR control to the subject site and rezoned the land to B2 Local Centre. Prior to LEP 2012 the land had been zoned R2 Low Density residential development.

38. In 2015 Council prepared a planning proposal to “correct a number of mapping anomalies and/ or typographic errors, some minor corrections to LEP text and the Heritage Register schedule” (Exhibit N). In relation to the subject site the Council’s planning proposal states;   

Early versions of the draft LEP 2012 showed the land with a R3 Medium Density Residential zone and an FSR of 0.5:1.

However a decision was taken instead (to) zone the land as B2 Local Centre given its close proximity to other business zoned land within the Canterbury Road corridor. However, while the corresponding change to the height of building map was made (from 8.5m to 18m) the FSR map remained unchanged at 0.5 (Map 33). It is therefore proposed to amend the FSR so that it is consistent with other B2 Local Centre zoned land (Map 34).

(Exhibit 5, emphasis added)

39. The 2015 planning proposal sought to remove the FSR control of 0.5:1 from the subject site and three adjoining sites: 506, 510-514 Burwood Road and 2 Wilson Avenue that are similarly zoned B2.

40. The planning experts agree that the FSR control that currently applies to these sites has been referred to by Council as an “error” in the planning assessment report for development at 510-514 Burwood Road (Exhibit 2). The relevant extract from the report is as follows:

Canterbury LEP 2012 intends to control the bulk and scale of developments in the B2 zones along the Canterbury Road corridor with height and building envelope controls under Development Control Plan 2012. The proposed development is generally compliant with these controls. The FSR of 0.5:1 which is nominally nominated for low density development has been indicated on the FSR maps for the site in error.

(Exhibit H)

41. Similar statements in relation to the mapping of the FSR control “in error” for the subject site are repeated in the planning assessment report prepared for the current application on the subject site. (Exhibit 5, Tab 6)

42. In March 2016 a gateway determination was granted to allow public exhibition of the above planning proposal.

43. In June 2017 the amalgamated Council considered a report on the planning proposal and its exhibition. The changes proposed to the subject site (the removal of the FSR control) were recommended to be deleted from the planning proposal for the following reasons:

The findings of the (Canterbury Road) corridor study may affect these sites. It is recommended these sites be removed from the current planning proposal and that they be addressed as part of the corridor study (Exhibit 5, Tab 12).

44. It is the evidence of Mr Rowan that:

1. a decision by the Council to abandon the draft amendment to the LEP occurred prior to it proceeding to public exhibition. As such he argues that the planning proposal is not a statutory consideration under the Act;

2. that the change by the Council in no longer progressing the deletion of the FSR control “requires the preparation by the applicant of a revised clause 4.6 submission that does not rely upon the November 2015 resolution of the Council to omit application of this development standard to the subject land”;

3. the 23 June 2017 report affirms that the Council wishes to retain the FSR control and that “it does not view the control to be in error but more likely that it serves a planning purpose that warrants retention” (Exhibit 2).

45. In the alternative Mr Mead argues that:

.. it remains that Council accept, as stated in the 12 November, 2015 report, that the FSR control is an “anomaly” or “drafting error” (page 1 summary). The fact that Council has now resolved to include the subject site for consideration in a future Corridor Study supports this, it has just changed the process by which it will be corrected. There is no suggestion in the 27 June, 2017 report that the FSR control is no longer considered to be an “anomaly” or “error” so it can only be assumed that the comments in the 12 November 2015 (report) remain valid. In my opinion, the discussion on page 24 of that report indicates that the intent was to zone the site B2, with a height limit of 18m and have no FSR. The disconnect between the height and FSR is obvious and remains an error or anomaly.

(Exhibit 2)

46. Mr To submits that there is no evidence in the most recent Council report (27 June 2017) to “indicate that the 0.5:1FSR control was not an error arising from the change of proposed zoning from R3 to B2 or that 0.5:1 had been considered by the Council to be an appropriate FSR control” (Applicants submissions, page 3).

47. Mr Zoppo relies on the evidence of Mr Rowan that the June 2017 decision of Council indicates that it is Council’s view that the FSR control of 0.5:1 has a planning purpose.

Discussion

48. Further to the above evidence and submissions the Court was also provided evidence and submissions on the draft Canterbury Road Review (Exhibit N, Tab 4) and the draft built form controls contained within it.

49. Ultimately the current FSR control for the site (0.5:1) cannot be ignored irrespective of its history or potential future amendment. There is no current exhibited draft instrument proposing to amend the development standards for the subject site that is a matter for consideration (s79C(1)(a)(ii) of the Act).

50. Consideration of the reasonableness of the standard, or the appropriateness of a standard to the current application on the subject site, occurs as part of the consideration of whether a variation to the FSR standard (as sought by the applicant) should be upheld.

51. In Wehbe v Pittwater [2007] NSWLEC 827 at [48] Preston J states an argument may be made that the zoning of the land was unreasonable or inappropriate in its application to the land and therefore compliance is unreasonable or unnecessary in support of a variation to the standard. Relevantly at [49] he states:

… care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on “particular land” and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose).

52. The planning purpose of the standard, as articulated in the objectives of clause 4.4, remains to be considered in the determination of any clause 4.6 variation request. This requirement remains notwithstanding that I may conclude on the facts before the Court that the FSR control was applied the subject site in LEP 2012 in error.

Is the request to vary the floor space standard well founded and worthy of support?

53. It is clear from a reading of cl. 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on two variation requests for floor space and for height.

54. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they:

1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii));

2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii));

3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i));

4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

55. I have applied these tests to the current application in the following.

Variation to Floor Space

56. The applicant relies on a variation request prepared by Mr Mead to seek approval for an FSR of 1.92:1, or a gross floor area of 814.7 square metres. In oral evidence it was accepted by the experts that the application of the gross floor area definition to the revised proposal results in the calculation of gross floor area of 875.04 square metres. This results in a proposed FSR of 2.1:1. The difference between the calculations does not result in a change in building form but results from the exclusion or inclusion of some service areas.

57. The variation request is supported by the following key arguments:

• that the FSR control should be given limited weight as it was applied in error and has been discounted by Council in the approval of adjoining developments;

• the variation has no significant impact; and

• the development proposed is consistent with the character of the locality and the visual context.

Consistency with the zone objectives

58. The site is with the B2 Local Centre Zone, the objectives of which are provided at paragraph [17].

59. Mr Mead argues that the development proposed is consistent with the zone objectives as ‘it provides apartment living to suit the housing needs of the community and integrates retail/business land uses at ground level’ (Exhibit 2). Further he argues ‘the proposed development will provide further opportunities for employment and ultimately the economic growth of Belmore’ (Exhibit 2).

60. On the basis of the evidence of the planners and the arguments put forward within the variation request I accept it can be reasonably argued that the development is consistent with the zone objectives. In particular that of providing a range of uses and employment in an accessible location.

61. I accept the submission of Mr To that consistency in this context means ‘agreeing or concordant’, ‘compatible’, ‘not self-imposed or self-contradictory’ (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).

62. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is consistent with the zone objectives.

Consistency with the objectives of the standard in question

63. At [21], I listed the objectives of cl 4.4 Floor Space Ratio. In the proceedings the evidence centred on the compliance of the development with objectives (b) and (c), namely:

(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,

64. Mr Mead argues that the planning instruments exert control over the bulk of development through a suite of controls but primarily setbacks, height and FSR. He argues that the proposals ‘general compliance with, and in some cases, significant “underutilisation” of the available envelope in the controls’ demonstrates that the bulk of the proposal has been effectively regulated. (Exhibit 2)

65. In particular Mr Mead identifies the following in support of this conclusion:

• the amended proposal provides a setback to the south-western boundary of 3m at ground and first floor level, 11 to 13.5m and second to fifth floor level whilst the requirement under the DCP is for a nil setback;

• to the south east a nil setback control also applies however a large part of the boundary (17.5m of a total 28m boundary length) above first floor level is not built upon at all;

• it is inevitable and expected that development of a corner site would “wrap” around the corner into Wilson Avenue however the development is 2 storeys in height at its south-western end whilst the height limit is 18m, being effectively one third of the building height permitted;

• the density of the scheme (at 1.97:1) is significantly less than other recent approvals for nearby land subject to identical controls, such as No. 510-514 with and FSR of 2.7:1;

• the setback to Burwood Road being implemented at Level 3 minimises impacts compared to pursuing the precedent set by recently approved and constructed development at No. 510;

• the upper level footprint (Levels 3 to 5) is relatively small and is significantly slimmer in unit depth than surrounding recent approvals and that required by the ADG (of 18m);

• the proposal strictly complies with the Burwood Road street setback requirements;

• the street setback requirements are complied with at ground, first, second and fifth levels on Wilson Avenue;

• the part of the façade that is on a 2m setback on Wilson Avenue is 9m long (with balcony beyond) on a 28m frontage; and

• the architecture of the upper level (3,4 and 5) varies from the levels below and will clearly mark a transition.

(Exhibit 2)

66. In the alternative Mr Rowan argues that the FSR variation proposed is unacceptable in two primary ways:

• the development results in excessive bulk and scale in its presentation to Wilson Street and provides an inadequate transition to the adjoining residential development. His evidence is:

The context of the subject site differs from land that has already been developed in the B2 zone along Burwood Road for mixed use development, and as such it requires a different development solution given that:

i. the subject land, and No.2 Wilson Avenue, are the only properties in the B2 zone in the Belmore local centre located between Canterbury Road and Wilson Avenue that abut R3 zoned land and a road reserve to which only lower height development on the opposite side is permitted;

ii the subject site is physically separated from the above development examples in the B2 zone by these two properties; and

iii albeit such to the same zoning and permissible height limit, the heritage item at No. 2 Wilson presents a permanent lower scale structure to the street edge within the streetscape of Wilson Avenue.

…

(Exhibit 2)

• the variation results in an excessive impact on solar amenity of the adjoining property. He concludes that the development will result in the removal of almost all of the existing solar access to the private open space of 506-508 Burwood Road;

67. In oral evidence Mr Rowan confirmed his fundamental concern in regards to the FSR variation sought is the impact to solar access of the neighbouring property.

Objective (b):

68. Mr Mead argues that the desired future character (DFC) of the locality is established largely by its zoning and height controls. It is his evidence that the expression of this DFC can been seen in the recent approvals issued by Council in proximity to the subject site (refer paragraph [8]). It is Mr Mead’s conclusion that:

‘the character established by these buildings is one of 5 and 6 storey development, with relatively significant site coverage and building depths largely influenced by the building depth requirement under the ADG. Street walls, or podiums, vary between 3 and 4 storeys built to the street with upper levels setback, but typically include balconies within the setback area’.

(Exhibit 2)

69. Mr Mead concludes that the proposed development is consistent with the desired future character which he argues is emerging in the locality.

70. In his oral evidence Mr Rowan focussed his evidence on his concerns with the adequacy of the setback to Wilson Avenue at level 3 and 4 of the building. The current design proposes a 2 m setback at these levels.

71. It is Mr Rowan’s evidence that this proposed setback to Wilson Avenue is unacceptable and does not achieve an appropriate urban design outcome for persons within the local streetscape. It is his evidence that the purpose of the setback is to: to ensure the scale of development at the street edge is not physically enclosing; to permit sunlight into the public domain of the road reserve; and widen views within the street to the open sky above the 3rd storey (Exhibit 2).

72. Mr Rowan does not accept that the purpose of the DCP streetsetback control is to achieve a transition between zones. Rather he argues that given the site abuts the R3 zone it adds planning weight tothe maintain the streetscape objectives inherent in the DCP control inseeking a 5m setback to the upper levels of the proposed development (Exhibit 2).

73. Mr Rowan maintains his view that that a 2m setback for Levels 3 and 4 in the proposed development does not achieve the intention of the DCP control notwithstanding the limited wall length to which this setback would apply.

74. It is Mr Mead’s evidence that the setback non-compliance is acceptable on the following grounds:

• the proposed development complies strictly with the setback requirements at ground, first and fifth levels;

• there is a limited extent of the Wilson Avenue frontage that the reduced setback applies to (9m);

• the proposed development at the south western end of the site, closest to the residentially zoned land, is two storeys;

• the massing is complemented by a change in materials;

• it is common for the secondary street frontage of a site to have a different, often reduced, setback compared to the primary frontage.

Objective (c):

75. The planning experts agree that Section 3B-2 of the ADG is applicable to the assessment of the impacts on the adjoining neighbours (refer paragraph [14]); and whether the proposed variation meets objective (c) of the standard.

76. The experts also agree that the adjoining building at No. 506 Burwood Road does not currently have any ‘private’ open space for its apartments as defined by the ADG. Instead all of the apartments have access to a common paved outdoor area located in the side and rear setbacks of the building.

77. To assist in the quantification of the impacts of the proposed development on the common paved outdoor area at No. 506 Burwood Road the applicant has prepared a solar access study. This details the areas of approximate solar access to the common area as follows (additional calculations completed):

Time	Area receiving sunlight (reference DA 306)	Approx. % of common paved outdoor area
9am	38.5 sqm	26
10am	31 sqm	20.9
11am	nil
12 noon	nil
1 pm	2sqm	1.35
2 pm	16.8 sqm	11.3
3pm	6.3 sqm	4.25

78. Drawing DA-303 documents the solar access to 506 Burwood Road in a scenario where there was no building on the subject site. By reference to this drawing 506 Burwood Road would receive between 4 and 5 hours solar gain to the common paved outdoor area at the rear.

79. No comparative assessment has been completed of the solar impact of the redevelopment of the site with a form of development compliant with the 0.5 FSR and 18m height limit.

78. It is Mr Rowan’s assessment of the proposed development that the level of solar access retained to the common paved outdoor area at No. 506 Burwood Road is unacceptable for the following reasons:

(a) there is currently limited, if any solar access received within the outdoor space of No, 506-508 prior to 10am, and thus the period prior to this time is to be disregarded from calculations.

…

(c) given the outdoor area is the only space available for the residents of No. 506-508, the impact upon the amenity of those dwellings is unreasonable.

…

(f)… the shadow affectation is attributable to the inclusion of floor space in excess of that permitted under the LEP.

81. Mr Rowan argues that the development is non- compliant with Section 3B-2 of the ADG as at no time does the neighbouring property receive solar gain to 50% of their common paved outdoor area. It is his evidence that the proposed development should provide an increased side setback (or building separation) to reduce the impact of overshadowing on the neighbouring property.

82. On the basis of the overshadowing impacts of the proposed development on No. 506 Burwood Road Mr Rowan concludes that the proposed variation fails to meet the requirement of objective (c) of the standard to minimise impacts and the variation should not be upheld.

83. In the alternative Mr Mead argues that the assessment undertaken by Mr Rowan focusses too keenly on numeric compliance and places insufficient weight on the design guidance provided by the ADG at 3D-1. It is his evidence that this guidance acknowledges that small lots, sites within business zones, or in dense urban areas may be unable to achieve the design criteria. It is his evidence that the subject site falls within each of these criteria.

84. In the context of the subject site having an 18m height limit and 506 Burwood Road being located to the south west of it, Mr Mead argues that it is inevitable that solar access will be difficult to protect (Exhibit 2). Further it is his evidence that Mr Rowan applies the definition of private open space too broadly and in reality the affected outdoor space is more appropriately characterised as utility space.

85. Further to the above Mr Mead argues that the proposal meets the requirements of the standard to minimise impacts in the design of the development in the following ways:

• the amended proposal provides a setback to the south-western boundary of 3m at ground and first floor level, 11 to 13.5m at second to fifth floor level whilst the requirement is for a nil setback.

• To the south-east a nil setback also applies however a large part of the boundary above first floor level is not built upon at all.

• it is inevitable and expected that development of a corner site would ‘wrap’ around the corner into Wilson Avenue however development is 2 storeys in height at its south-western end whilst the height limit is 18m.

• the density of the scheme (at 1.97:1) is significantly less than other recent approvals for nearby land subject to identical controls, such as No. 510-514 with an FSR of 2.7:1.

• The setback to Burwood Road being implemented at Level 3 minimises impacts compared to pursuing the precent set by recently approved and constructed development at No. 510.

• The upper level footprint (Level 3 to 5) is relatively small and is significantly slimmer in unit depth than the surrounding recent approvals and that required by the ADG (18m).

86. It is Mr Mead’s assessment that the stepped building form and limiting of the development to two storeys at the south-western end provides a design that is more effective in maintaining solar amenity to the current development at 506 Burwood Road and any potential redevelopment than the proposed increase in side setback.

87. Mr Mead concludes that ‘to require compliance with the FSR control would result in an undesirable form of development that would be antipathetic to the objectives of the FSR and B2 zone objectives’ (Exhibit 2).

88. In his oral evidence Mr Mead argued that Court should apply the planning principles on solar access defined in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [133-144] in considering the weight to be applied to the impacts on the adjoining property.

89. In submissions Mr Zoppo concurs with the evidence of Mr Rowan that the primary detrimental impact of the proposed development is the loss of solar amenity to 506 Burwood Road. He argues that the detailed calculation of the areas of approximate solar access to the common area (refer paragraph [77]) supports Council’s assertion that the impacts are unreasonable. He submits that the variation requested by the applicant is sought at the detriment of the solar amenity of the neighbours and that these impacts are sufficient to warrant refusal of the application under s79C(1)(b)of the Act.

90. Mr To submits that evaluating whether the development is consistent with the objective involves a comparison between the proposed development and a complaint development that would result from the application of the planning controls: Lane Cove Council v. Orca Partners Management (No. 2) (2015) 208 LGERA 114 at [219]. He argues that:

… the starting point for a comparison should be the expected shadowing from development complying with an 18m height limit, and envelope controls, and generally with an FSR at around 2:1, or a little more. In this context, there can be no reasonable expectation that No. 506 could continue to receive solar access of the kind it presently receives.

In particular, given the height limit and expected zero side setbacks it would instead be reasonably be expected that most solar access to the rear of No. 506 would not be retained. This anticipates that redevelopment of No. 506 (which on any assessment must be likely given the significant difference between current development and what could be built) will likely have an elevated common open space, probably at rooftop (consistently with the ADG) that would receive substantial solar access during the winter solstice.

In this regard, the clause 4.6 variation request points out that the subject proposal is consistent with minimising overshadowing by purposely locating no built form above the Level 2 common open space area to the south-western end of the Site. This results in a significant amount of the rear yard of No. 506 continuing to receive solar access. The quality of solar access in that yard would be even better but for the poor placement of the rear outbuilding housing laundries.

…

This is an outcome that will not only benefit No. 506 at the present time, but will continue to benefit No. 506 at the time of any redevelopment. Perhaps unusually, such future redevelopment will continue to have the opportunity to site common open space at ground level that receives solar access despite being located generally to the south of land on which an 18m building may be located.

91. On the preceding reasoning Mr To submits that the amended proposal, notwithstanding a greater FSR, is consistent with objective (c), namely minimising impacts on adjoining properties.

Findings

92. I accept the evidence of Mr Mead that consideration of the future character of the area – denoted in objective (b) - is a matter best informed by the type of built form articulated within the council planning controls.

93. I am satisfied that the proposed development acceptably addresses the principal design elements detailed in the planning controls that define the DFC. I accept the evidence of Mr Mead that the DFC is established by the principal planning controls and the recent approvals issued by the Council (refer paragraph [68]).

94. In relation to the contention of the Council that the setback to Wilson Street proposed by the development is unacceptable, I find I am not persuaded by the evidence that modification of the design to achieve the additional setback is warranted. I am satisfied that the placing of additional development on the corner is a preferred design outcome and allows for the reduction in height and massing of the proposal in more sensitive locations within the subject site, such as in proximity to the heritage item. I am satisfied that the streetscape presentation of the upper storey is acceptable at the setback proposed and the variation is warranted.

95. I am satisfied therefore that the development is consistent with objective (b) of the FSR control to protect the environmental amenity and desired future character of an area.

96. Moving to the impact of the proposed development on the solar access of common paved outdoor area at No. 506 Burwood Road. I accept the submission of Mr To that it is appropriate in determining acceptability to undertake a comparative exercise between the form of development expected by the controls and the proposed development: Lane Cove Council v Orca Partners Management.

97. I do not accept that it is appropriate to apply the design guidance provided at Objective 3D-1 of the ADG to the assessment of the existing communal area at 506 Burwood Road. This control in the ADG is focussed on the quality and amenity of the provision of communal open space in new developments. On this basis the achievement of a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours is not the relevant bench mark for assessment of acceptability of impact on an adjoining property.

98. The objective in the ADG relevant to the current proceedings is Objective 3B-2: Overshadowing of neighbouring properties is minimised during mid-winter (refer paragraph [14]). The relevant guidance in that objective is that the proposed building ensures solar access to neighbouring properties is not reduced by more than 20%. As noted by the planning experts the percentage reduction between the current solar access and the proposed has not be provided in the evidence (Exhibit 6).

99. At the interface with the south west boundary the 18 m high section of the proposed development is setback 5 m from Burwood Road and occupies approximately a third of the total boundary length common with 506 Burwood Road. The proposed building mass is oriented to the northern section of the site. I accept that this approach to the site design facilitates solar access to the rear of the site, as opposed to a design that placed building mass to a compliant height in the southern portion of the site.

100. I consider it is possible a development compliant with the 0.5: 1 FSR control could produce a similar building profile adjacent the common boundary of No. 506 Burwood Road, albeit I accept with a smaller footprint (around 10% of the site area). Such a building profile would have congruent impacts on solar access. Consistent with my finding at paragraph [110] I have given reduced weight to the numerical component of the FSR control and focussed on the impact of the built form arising from the suite of planning controls and how this form placed adjacent the boundary impacts on No. 506 Burwood Road.

101. I note that LEP 2012 resulted in an increase in density by up zoning the subject site from residential to commercial uses. The relevant built form planning controls reflect this intent including allowing development with a zero side setback (refer paragraph [25]) to adjoining properties.

102. The planning principles in The Benevolent Society v Waverley Council acknowledges that: At higher densities sunlight is harder to protect and the claim to retain it is not as strong. I am satisfied the approach taken in The Benevolent Society v Waverley Council is consistent with the design guidance in the ADG (refer paragraph [83]) and is applicable to the current proceedings. Both articulate that solar gain or impact is influenced by orientation, density and site characteristics.

103. I am satisfied that the design approach to the site allows for solar gain to the rear of No. 506 Burwood Road by restricting the height, bulk and footprint of development placed in the southern portion of the site.

104. In conclusion, on the basis of the evidence before the Court I am not satisfied that the impact on solar access for paved outdoor area at No. 506 Burwood Road arises from the variation to FSR control. I accept the evidence of Mr Mead at paragraph [85] and conclude that the proposal meets the requirements of the FSR standard to minimise adverse impacts on adjoining properties.

105. Consistent with The Benevolent Society v Waverley Council I am satisfied on the basis of the expert evidence, the site visit and a review of the plans that the proposed development also seeks to minimise impacts on the future redevelopment of No. 506 Burwood Road.

106. The proposal’s achievement of the remaining objectives of the FSR standard is not in dispute. For the preceding reasons I accept that the proposed development is consistent with the objectives of the standard (cl 4.6(4)(a)(ii)).

Is it established that compliance is unreasonable or unnecessary?

107. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44-48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate (Wehbe test 5).

108. In this appeal the applicant seeks to establish that the objectives of the standard are achieved notwithstanding the variation (Wehbe test 1) and that that the zoning of the land is unreasonable or inappropriate (Wehbe test 5).

Findings

109. Given my finding (at paragraph [106]) that the proposal is consistent with the objectives of the standard, the first approach is made out.

110. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height standard for these objectives to be achieved and that due to the circumstances of the application of the FSR standard to the site (and its lack of concordance with the other LEP standards applicable) means that its strict application is inappropriate for the subject site.

111. I am satisfied that the applicant’s written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP and I accept the reasoning detailed within the request (Exhibit 2).

Are there sufficient environmental planning grounds to justify the variation?

112. Whilst not specifically particularised, within the variation request Mr Mead argues there are sufficient environmental planning grounds principally on the basis that:

• the current proposal will ensure that the site is developed consistent with the scale of development envisaged at the time of rezoning;

• the proposed development provides a good urban outcome for the site; and

• the proposed development does not result in significant amenity or built form impacts beyond that which could be expected by the building envelope controls.

113. Mr Mead also notes that in terms of the internal amenity, the proposed development exceeds the ADG requirements for solar access and cross ventilation with 100% of apartments achieving the standard.

114. Mr To submits that in addition to the above siting of the built form away from the heritage item at 2 Wilson Avenue results in a respectful and appropriate relationship that is the result of a site-specific approach (Applicants submissions page 10).

Findings

115. Sufficient environmental planning grounds encompasses grounds beyond the mere absence of environmental harm or impacts: GlenayrAvenue Pty Ltd v Waverley Council [2013] NSWLEC 1253, Tuor C at [54-54].

116. Having regard to the evidence and in particular to the written objection prepared, I am satisfied that there are sufficient environmental planning grounds to justify the variation. I have reached this conclusion on the basis that the applicant has proposed a scheme for the redevelopment of the site where 100% of apartments meet the ADG requirements for solar access and cross ventilation, as well as achieving a building mass that is respectful of the adjoining heritage item.

117. Finally, as required by Cl4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or regional planning that would warrant refusal of the variation request.

Merit Matters

118. Having found this particular precondition to consent is met, it is necessary to consider those matters prescribed in s79C of the Act.

119. I am satisfied on the basis of the evidence of Mr Mead (detailed at paragraph [74]) that the contention of the Council that the setback variation to Wilson Avenue is unacceptable is not made out. I find that a variation to this control in DCP 2012 is warranted.

120. Similarly as detailed at paragraph [96-106] I am satisfied that the shadow impact from the proposed development on the common paved outdoor area within 506 Burwood Road is acceptable for the reasons provided in the preceding.

121. The final issue in dispute between the parties is whether the development provides appropriate parking and loading for the residential and commercial use.

The parking generation rate

122. There is a dispute between the experts as to the appropriate manner to determine the parking generation for the development. DCP 2012 at cl. 6.8.3 (i) delineates the parking provision required on the basis of the type of use and its location.

123. As identified at paragraph [14] Objective 3J-1 of the ADG requires that the applicable parking rate is the rate that results from applying the RMS Guide to Traffic Generating Developments (RMS Guide), or the DCP provision, whichever is less.

124. SEPP 65, at cl 30(1)(a), provides that parking is not to be used as a matter warranting the refusal of the development if it accommodates parking equal to or greater than the recommended minimum in the ADG.

125. It is agreed between the parties that the site is within 800 m of a Railway Station.

126. It is the evidence of Mr Albaba that the parking generation rates under the DCP are determined as follows:

• the site is categorised as B2 “other town centres” for the purposes of cl. 6.8.3 (i): 13.2 residential spaces;

• as the site has more than 10 dwellings a car wash bay is required;

• retail parking is required at the rate of 1 space per 40 sqm: 2.2 spaces.

This generates a parking demand for the site of 16 spaces (noting the question of a service bay is discussed below).

127. To establish that the site is outside the bounds of the Belmore Centre Mr Albaba relies on appendix 3.1: Structure Plan, Smaller Centres to DCP 2012.

128. It is the evidence of Mr Albaba that the RMS Guide fails to provide a clear definition of Metropolitan regional centre and Metropolitan subregional centre (Exhibit 7). He argues that this lack of clarity resulted in the NSW Department of Planning releasing a technical note to clarify. Utilising the technical note and the RMS Guide it is Mr Albaba’s evidence that the parking generation rates under the RMS Guide determined as follows:

• the site is categorised as Medium Density development (cl 5.4.2) as the proposal contains less than 20 dwellings: 13.2 residential spaces;

• as the site has more than 10 dwellings a car wash bay is required

• retail parking is required at the rate of 1 space per 40 sqm: 2.2spaces.

This generates a parking demand for the site of 16 spaces (excluding service bay).

129. Mr Albaba concludes that the parking demand is 16 spaces, resulting in the proposed development having a shortfall of spaces.

130. In the alternative Mr Varga argues that the correct classification of the site for the purposes of determining the parking rate is as “B2 zones- accessible centres”. Applying these rates Mr Varga determines the parking requirements under DCP 2012 as follows:

• “B2 zones- accessible centres”: 11.5 residential spaces;

• as the site has more than 10 dwellings a car wash bay is required;

• retail parking is required at the rate of 1 space per 50sqm: 1.76 spaces.

This generates a parking demand for the site of 15 spaces (excluding service bay).

131. It is Mr Varga’s evidence that the parking generation rates under the RMS Guide determined as follows:

• The site is categorised as “Metropolitan sub regional centres” 10 residential spaces;

• as the site has more than 10 dwellings a car wash bay is required;

• retail parking is required at the rate of 1 space per 50sqm: 1.76 spaces.

This generates a parking demand for the site of 13 spaces (excluding service bay).

132. Mr Varga argues that the parking requirements of 12 spaces plus car wash bay (total 13 spaces) is satisfied by the 14 spaces shown on the architectural plans (Exhibit 7).

Findings

133. Clause 6.8.3(ii) of DCP 2012 identifies that Belmore is classified as a large centre for the purposes of applying the requirements for parking and servicing. I do not agree with the approach taken by Mr Albaba in the application of the DCP provisions by reference to the Appendix of the DCP where there is no cross reference provided in the instrument directing the provision to be read together.

134. I note in oral evidence both experts agreed that the site is located with good access to public transport. I accept the evidence of Mr Varga in relation to the application of the parking requirements in DCP 2012. I am satisfied that the subject site is appropriately categorised as a “centre with good public transport” for the purposes of parking provision. On this basis applying cl 6.8.3(i) of DCP 2012 the parking requirements for the development is 15 spaces (excluding service bay).

135. Applying Objective 3J-1 of the ADG it is necessary to determine the parking requirements under the RMS guideline. The technical note produced by the Department of Planning (Exhibit J) notes that:

The GTTGG (the RMS Guideline) prescribes car parking rates for residential flat developments based on both the scale of the development (whether it contains up to 20 units, or 20 or more units), as well as location – whether the centre is a Metropolitan Regional Centre (CBD) or Metropolitan Subregional Centre.

136. Applying this two-step process at cl.5.4.3: the RMS Guideline High Density Development as a residential flat building containing at least two but less than 20 dwellings and Medium Density Development as a building containing more than 20 dwellings.

137. I find that the ten residential units proposed by the development is appropriately categorised as Medium Density Development. I accept the evidence of Mr Albaba that the parking generation rates under the RMS Guide is 16 spaces (excluding service bay).

138. Applying Objective 3J-I of the ADG the development is required to provide 15 spaces (cl 6.8.3(i) of DCP 2012), excluding service bay. This demand is accommodated in the architectural plans before the Court (Exhibit M).

139. I am satisfied that the proposal provides appropriate parking for the residential and commercial use.

Is a service bay required for the development?

140. Clause 3.1.12 (ii) and clause 6.8.2(i) of DCP 2012 require the determination of service/loading bays to be determined on a merit basis.

141. It is the evidence of Mr Albaba that a service bay is required for the development to accommodate loading and unloading of goods within the property. He argues that it is also necessary for the development to be capable of being serviced by a semi ridged vehicle (SRV). It is his assessment that such a vehicle is not capable of being serviced within the current proposal.

142. It is the evidence of Mr Varga that DCP 2012 does not mandate the requirement for a service bay. He argues that the provision of a loading bay capable of accommodating delivery vans (equivalent to a B99 vehicle under AS 2890.1: Parking facilities) is sufficient given the small scale of the retail/commercial space proposed.

Findings

143. I am satisfied that the scale of the retail/commercial space sought by the proposed development (84.3m²) is unlikely to generate demand for the delivery or collection of goods with a SRV. I accept the evidence of Mr Varga that accommodating delivery vans within the development is sufficient given the small scale of the space.

144. However applying Clause 3.1.12 (ii) and clause 6.8.2(i) of DCP 2012 I find that a service bay is appropriate for the subject site. I am satisfied that the location of the loading bay (suitable for delivery vans) on the ground floor will facilitate deliveries and collections to be undertaken wholly on site.

145. I note that any designated use of the premises will be subject to a future development application that will consider, amongst other matters, whether such servicing should occur at specific or restricted times depending on the nature of the use.

What disabled parking is required?

146. It is Mr Albaba’s evidence that whilst the development provides adaptable parking as required for the adaptable unit (as defined in AS 4299-1995 Adaptable housing), the development as designed fails to provide adequate accessible parking for the retail and residential use. In requiring accessible parking for the development Mr Albaba relies on D3.5 of the National Construction Code 2016 and AS/NZ 2890.6: Parking facilities Off-street parking for people with disabilities.

147. It is Mr Albaba’s evidence that the requirement for accessible parking is separate to the requirement for adaptable parking. He argues that the disabled space in the current basement level allocated for the retail use has inadequate width to be suitable for accessible parking compliant with the standard.

148. In the alternative it is Mr Varga’s evidence that the application of AS/NZ 2890.6: Parking facilities Off-street parking for people with disabilities does not generate the requirement for disabled parking to be provided under that standard.

149. Mr Varga’s evidence is that the 3.8 m wide “adaptable parking space” is provided for the “adaptable unit” in compliance with the 3.8m width required by AS 4299-1995 Adaptable housing (Exhibit 7). The Council raises no contention that this requirement is not met.

Findings

150. In considering the opposing evidence, I am satisfied that both the relevant standards apply to the development. I accept the evidence of Mr Varga that the development satisfies the requirement of AS 4299-1995 Adaptable housing.

151. The relevant section of National Construction Code 2016, D3.5 Accessible Parking states:

D3.5 Accessible Parking

Accessible car parking spaces –

(a)   subject to (b), must be provided in accordance with Table 3.5 in-

(i)    a Class 7a building required to be accessible; and

(ii)    a car parking area on the same allotment as a building required to be accessible; and

…

(c) subject to (d), must comply with AS/NZS 2890.6; and

…

152. In a multi-classified building, the number of accessible car parking spaces required is calculated by determining the number of spaces serving each of the classifications (NCC 2016 Guide to the BCA Volume One).

153. Applying this to the current development results in the Class 5 or 6 component of the development (refer Exhibit F) requiring the provision of one space for people with a disability (D3.5 (a)(ii)). This space is required to comply with AS/NZ 2890.6: Parking facilities Off-street parking for people with disabilities (D3.5(c)).

154. I am satisfied that it is an appropriate outcome to allow the applicant to make provision for this space (and the loading space referred to in [paragraph 143]) at the ground floor by the reconfiguration ground floor service area within the current proposal. I have made such directions at paragraph [156].

Conditions

155. The supplementary planning report (Exhibit 6 and Section 1.3) notes a number of minor, but important matters that should be addressed in the finalisation of any proposal, or as conditions for the subject site. I accept the evidence of the planners in these matters and the application or conditions should be amended accordingly.

Directions

156. The Court directs that:

1. as detailed in paragraphs [153-154] the applicant is to amend their proposed development to comply with the findings of this judgement;

2. the applicant is to file and serve any amended plans consistent with order (1) no later than 28 days from the making of these directions;

3. the respondent is to file amended conditions of consent consistent with this judgement (in particular paragraph [155]) within two weeks of the filing of any amended plans;

4. subject to the Court being satisfied by the amended documentation, final Orders will be made in Chambers; and

5. liberty to restore on two days’ notice.

Addendum on 15 March 2018

157. Consistent with the Directions of the Court on 30 January 2018 the Applicant amended their proposed development and filed amended plans with the Court on 27 February 2018.

158. Council filed an updated set of proposed conditions of consent incorporating the plans and the additional recommendations of the planning experts (refer paragraph [155]) on 14 March 2018.

159. Following a review of the documentation filed I am satisfied they are consistent with my directions and accordingly I am satisfied it is appropriate to grant consent to the development.

Orders:

160. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans as listed in Condition 5 of Annexure A;

2. Pursuant to section 8.15 (previously 97B) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs as agreed or assessed arising from the amended plans referenced in paragraph [3] of this judgement;

3. The appeal is upheld;

4. Consent is granted to Development Application No. 635/2015 for demolition and erection of a six storey mixed use development with basement parking at 504 Burwood Road, Belmore subject to conditions in Annexure A;

5. The exhibits are returned with the exception of Exhibit 1, the applicants plans filed on 27 February 2018 and the annexed conditions.

…………….

D M Dickson

Commissioner of the Court

Annexure A (127 KB, pdf)

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Amendments

15 March 2018 - Addendum - Final Orders

Decision last updated: 15 March 2018