Binnijig Pty Ltd v Canterbury Bankstown Council

[2020] NSWLEC 1086

Land and Environment Court

New South Wales

Medium Neutral Citation:	Binnijig Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1086
Hearing dates:	17-18 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders that: (1)   The Applicant is granted leave to amend the application by relying on amended proposal. (2) The Applicant is to pay the costs of the Respondent thrown away as a result of the amendments of the application for development consent, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3)   The appeal is dismissed. (4)   Development Application No. 155/2018 for the demolition of existing buildings and construction of 6 storey mixed use development and two levels of basement parking is refused. (5)   The exhibits, other than Exhibits 2, A and M, are returned.
Catchwords:	DEVELOPMENT APPLICATION – construction of a six storey mixed use development including 69 residential apartments over two levels of basement parking – contravention of the height of buildings development standard – proposal fails to demonstrate that adequate floor to ceiling heights are achieved – inadequate internal amenity – overshadowing of adjoining properties
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide Canterbury Development Control Plan 2012
Category:	Principal judgment
Parties:	Binnijig Pty Ltd (Applicant) Canterbury Bankstown Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/297265
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 155/2018 for the demolition of existing buildings and construction of 6 storey mixed use development comprising 69 residential apartments, two commercial tenancies at ground floor level, rooftop and ground level communal spaces and two levels of basement parking (the proposal) at 956-961 Canterbury Road, Roselands (the site) by Canterbury Bankstown Council (the Council).

2. The appeal was subject to conciliation on 9 May 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 19 June 2019, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 27 September 2019 for the applicant to amend the application by relying on an amended proposal. Leave was granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on a further amended proposal (Ex A), subject to the parties’ agreement that the applicant would pay the costs of the Council that have been thrown away as a result of amendments made to the application, as agreed or assessed, pursuant to s 8.15(3) of the EPA Act.

Issues

4. The Council’s contentions can be summarised as:

• The height of the proposal is excessive and does not comply with the height of buildings development standard and is inconsistent with the objectives for the height of buildings development standard;

• Inadequate information has been provided to demonstrate that the proposed floor to floor height is acceptable;

• The setbacks and separation of the proposed development are inadequate;

• The design of the proposal fails to positively contribute to the streetscape;

• Insufficient solar access and ventilation is provided to the proposed development and inadequate solar access is provided to the adjacent rear dwellings.

5. The Council’s contention that the proposal had not demonstrated that adequate arrangements for waste management were provided was addressed by the amended proposal to the satisfaction of the Council’s planning expert.

6. The Council’s contention that the design of the communal open space area was inadequate and had poor amenity was addressed by the evidence of the Council’s planning expert, who noted that although the access from one lift lobby on the Ground Floor to the outdoor communal open space is circuitous, he was satisfied that the communal open space provided by the proposal is acceptable.

The site and its context

7. The site is on the southern side of Canterbury Road, bounded to the east by Belemba Avenue and to the west by Canarys Road. The site is 2593sqm in area with a frontage to Canterbury Road of 63.465m.

8. The adjoining properties to the rear, 4 Canarys Road and 1 Belemba Avenue, are single storey detached dwellings with private open space to the rear of each dwelling.

The proposal

9. The proposal (Exs A and M) consists of the following:

• Two levels of basement parking accessed via a ramp from Canarys Road in the south-western corner of the site.

• Two business premises on the Ground Floor occupying the full frontage to Canterbury Road, with a commercial lobby accessed from the Canterbury Road frontage between the two business premises.

• Ground Floor residential units to the rear of the business premises and two residential lobbies, each with a lift, accesses from the frontages to Canarys Road and Bellamba Avenue.

• Communal open space area at the rear of the site.

• Three levels of residential units over the Ground Floor, Levels 1-3, with a 9m rear setback and a 3m front setback.

• Level 4 residential units with increased setbacks; with a 12m rear setback and a 8m front setback. The terraces of the Level 4 units fronting Canterbury Road are located within the 8m front setback.

• Level 5 residential units over the western portion of Level 4 and a communal open space area over the eastern portion of Level 4.

10. The proposal includes removing the existing brick wall along the rear boundary of the site and providing a 1.8m timber fence.

11. The proposal includes a kiosk sub-station in the south-eastern corner of the site with a 3m deep soil landscaped setback to the shared boundary with 1 Bellamba Avenue (Ex M).

12. The floor to floor height of the Ground Floor is 3.3m. The floor to floor heights of Levels 1 – 4 are 3m and the floor to top of the slab height of Level 5 is 3m.

Planning framework

13. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4(a)(i) and 4(b). Clause 6A of SEPP 65 is in the following terms:

6A Development control plans cannot be inconsistent with Apartment Design Guide

(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:

(a) visual privacy,

(b) solar and daylight access,

(c) common circulation and spaces,

(d) apartment size and layout,

(e) ceiling heights,

(f) private open space and balconies,

(g) natural ventilation,

(h) storage.

(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.

14. The SEPP 65 design quality principles and the Apartment Design Guide (ADG) are to be taken into consideration is determining the application, at cl 28(2) of SEPP 65.

15. The ADG 3F Visual Privacy design criterion 1 is in the following terms:

“Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows:

4 storeys – 6m habitable rooms and balconies

5-8 storeys – 9m”

16. 3F Visual Privacy includes the following for a zone interface with a lower density residential zone:

“Apartment buildings should have an increased separation distance of 3m (in addition to the requirements set out in design criteria 1) when adjacent to a different zone that permits lower density residential development to provide for a transition in scale and increased landscaping.”

17. 4A Solar and daylight access design criterion 1 states that living rooms and private open spaces of 70% of apartments in a building in the Sydney Metropolitan Area receive a minimum of 2 hours direct sunlight between 9am and 3pm on the winter solstice. Design criterion 3 states that a maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm at mid-winter.

18. 4B Natural ventilation design criterion 1 states that at least 60% of apartments are naturally cross ventilated in the first nine stories of the building. The design guidance includes that in cross-through apartments external window and door opening sizes/areas on one side of an apartment are approximately equal to the external window and door opening sizes/area of the outlet side.

19. 4C Ceiling heights design criterion 1 has minimum ceiling heights of 2.7m for habitable rooms and 2.4m for non-habitable rooms and 3.3m for ground and first floor if located in a mixed use area to promote future flexibility of use. Figure 4C.5 illustrates design criteria 1 with a floor to floor height of 3.1m. Figure 4C.1 illustrates a floor to ceiling of height of 3.3m for retail and commercial floors with a floor to floor height of 4m.

20. The site is zoned B5 Business Development under Canterbury Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent pursuant to Schedule 1 Additional Permitted Uses cll 1(1) and 1(2)(a) of LEP 2012. The site is identified on the Key Sites Map (Key Sites Map - Sheet KYS_004 of LEP 2012) and so development for the purpose of residential accommodation is permitted with development consent only if the development is part of a mixed use development.

21. The objectives of the B5 zone, to which regard must be had, are:

• To enable a mix of business and warehouse uses, and specialised retail 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.

22. The site is on a zone boundary to the south and west with the R3 zone. The R3 zone adjacent to the site has a height of buildings development standard of 8.5m and floor space ratio (FSR) of 0.5:1.

23. The height of buildings development standard for the site is 18m (cl 4.3 and Height Of Buildings Map - Sheet HOB_004 of LEP 2012). The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2012, are:

(a) to establish and maintain the desirable attributes and character of an area,

(b) to minimise overshadowing and ensure there is a desired level of solar access and public open space,

(c) to support building design that contributes positively to the streetscape and visual amenity of an area,

(d) to reinforce important road frontages in specific localities.

24. There is no FSR for the site. The Council submitted that a Planning Proposal to amend LEP 2012 to apply a FSR in the B5 Business Development zone along Canterbury Road was prepared in August 2018 (Ex 4, tab 15) but that no weight should be given to the proposal because there has not yet been a Gateway determination in relation to the proposal by the Minister or his delegate in the Gateway process administered by the NSW Department of Planning, Industry and Environment and so the proposal is uncertain.

25. The relevant provisions of Canterbury Development Control Plan 2012 (DCP 2012) apply to the proposal. DCP 2012 has a savings provision at A1.9 so the applicable version of DCP 2012 is the version that was current at the time the application was made.

26. DCP 2012 is divided into Parts, where Part C is for “Residential Accommodation” and Part D is for “Business Centres”. The applicant submitted that Part C does not apply to this proposal, because it is a mixed use development. Part C of DCP 2012 applies to residential flat building development in the Canterbury LGA, at Part C4.

27. The urban design experts have referred to C4.2.4.1 of DCP 2012 which is in the following terms:

“C4.2.4.1 Solar Access and Overshadowing

Section 6A of SEPP 65 states that a DCP cannot be inconsistent with the provisions of the ADG made under that SEPP in relation to solar and daylight access (solar access and overshadowing in this DCP) and development to which the SEPP relates. The ADG therefore sets the objectives and controls for solar access and overshadowing in the LGA for residential flat buildings to which SEPP 65 relates. Refer to 4A Solar and Daylight Access of the ADG for objectives, design criteria and design guidance.

Refer to an additonal [sic] control below regarding common circulation areas including lift wells.

Objectives

O1 To ensure habitable areas have reasonable daylight access.

O2 To mininise [sic] overshadowing of primary living areas, private open space and solar roof top systems.

Controls

C1 Daylight is to be provided to all common circulation areas (including lift wells) that are above ground. Solar Access to Neighbouring Development

C2 Proposed development must retain a minimum of 3 hours of sunlight between 8.00am and 4.00pm on 21 June for existing primary living areas and to 50% of the principal private open space.

C3 If a neighbouring dwelling currently receives less than 3 hours of sunlight, then the proposed development must not reduce the existing level of solar access to that property.”

28. Part D of DCP 2012 applies to development for the purposes of mixed use development in the B5 zone at Part D1.

29. At D1.3.3 Floor to ceiling height, O1 is to ensure floor to ceiling height is adequate for the operation of the intended and potential use and C1(a) states that a 3.3m floor to ceiling height is to be provided for the ground floor.

30. D1.3.4 Setbacks, includes the objectives of minimising building size and bulk by setting back upper storeys and minimising impacts on adjoining properties. The B4 zone along Canterbury Road is to have a minimum 3m front setback for 1-4 storeys and 8m above 4 storeys.

31. D1.3.4 includes the following for rear setback on a boundary with a residential zone:

“On boundary with residential zone – rear setback

C7 Establish a 45[degree] height plane projected at 6m from the residential zone boundary.

C8 Provide minimum 6m setback to the residential zone boundary.

C9 A two-storey limit on the boundary with residential zone applies.”

32. D1.3.5 Building depth includes a control that the maximum street frontage wall length is 50m and street frontages greater than 50m may be considered if a 9x9m landscaped deep soil indent is provided.

Public submissions

33. Two resident objectors provided evidence at the commencement of the hearing onsite. Their concerns are that the proposal will exacerbate and conflict with the existing heavy traffic using Canarys Road to travel between King Georges Road and Canterbury Road and that the proposal is too high and will result in amenity impacts on adjoining dwellings to the south of the site.

Expert evidence

34. The applicant relied on the expert evidence Alan Cadogan (urban design) and David Furlong (planning). The Council relied on the expert evidence of Gabrielle Morrish (urban design) and Scott Barwick (planning).

Contravention of the height of buildings development standard

35. The proposal has a height of RL74.60. The height of buildings development standard for the site is 18m. The two lift towers above the level of the flat roof and a small portion of the north-western corner of the roof of Level 5 breach the height of buildings development standard.

36. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex L).

37. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

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

38. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

39. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

40. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has, in fact, demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

41. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

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

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

42. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

43. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the lift overruns are centrally located on the site and the elements that exceed the 18m height of buildings development standard do not result in any amenity impacts on adjoining properties or the public domain.

44. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

45. The applicant’s written request justifies the exceedance of the height of buildings on the grounds that the proposal is appropriately scaled to its context and is consistent with a 18m high building.

46. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to the constraints of the site including achieving 9m and 12m setbacks from the rear boundary because the site adjoins a lower density residential zone.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

47. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). I am satisfied that the proposed development is consistent with the objectives of the zone and the height of buildings development standard.

Consideration of the merits of the application

Proposal fails to demonstrate that adequate floor to ceiling heights are achieved

48. The ADG design criterion for ceiling heights is a minimum of 2.7m for habitable rooms and 2.4m for non-habitable rooms and 3.3m for mixed use ground and first floor to promote future flexibility of use. In order to achieve these heights, the floor to floor height for the business premises should be 4m and for the residential units, 3.1m, according to the ADG.

49. The floor to floor heights of Levels 1-5 are 3m. The applicant provided reflected ceiling plans (Ex A, dwg 760-765) shaded to denote wet areas with floor to ceiling heights of 2300mm, areas with floor to ceiling heights of 2400mm and 2700mm. The typical sections (Ex A, dwg 720) show a floor to ceiling height 2720mm between the finished floor level and the underside of a suspended plasterboard ceiling, which is 53mm below the underside of the slab over; and a section through wet areas showing a floor to ceiling height of 2300mm where the suspended ceiling is 473mm below the underside of the slab over. The typical section for wet areas assumes that wet areas are aligned vertically, whereas the spatial layouts vary across levels so that there are wet areas above living rooms and dining rooms.

50. The proposal has a Ground Floor level for both the business premises and the residential units of RL55.2. The existing footpath along Canterbury Road falls to the intersection with Canarys Road and has levels of RL55.68 falling to RL55.25. The eastern business premises 1 has an entry from the footpath with two risers and an internal entry via a ramp from the footpath and the western business premises 2 has an entry from the footpath via a 1:10 ramp and an internal entry. The floor to floor height of the Ground Floor is 3.5m.

51. The applicant submitted this issue is capable of being addressed by a condition of consent, even a deferred condition of consent, requiring documentation to demonstrate that the habitable rooms shown in Ex A as achieving 2.7m floor to ceiling heights do in fact achieve 2.7m with bulkheads for servicing located over cupboards, corridors, kitchens and bathrooms.

52. I accept and agree with Ms Morrish’s view that substantial compliance with the height of buildings development standard has been achieved by the proposal over 6 levels by sinking the finished floor level of the business premises to below the level of the Canterbury Road footpath and by reducing the floor to floor heights on all levels. This has compromised the proposal.

53. The applicant has failed to demonstrate that the proposal can achieve 2.7m floor to ceiling heights in the habitable rooms of all of the units. I accept Ms Morrish’s evidence that there are wet areas located over habitable rooms and that it is not certain that a bulkhead can be avoided within habitable rooms to accommodate hydraulic and mechanical services. The reflected ceiling plans were shown by the agreed evidence of the urban design experts to be inaccurate. I am not satisfied that a floor to floor height of 3m for the residential units will achieve adequate internal amenity within the units.

54. The reduction in the floor to floor height for the commercial component of the proposal limits the flexibility of the future use of these spaces. This, combined with the sinking of the floor level within the business premises, results in a poorly proportioned elevation to Canterbury Road, where the commercial component of the ground level is squat and disproportionate to the residential accommodation over. In mixed use developments, the commercial component of the development should read on the façade as of a grander proportion and a distinctly different character to the upper residential levels of the development. These important cues are what distinguish a business centre from a medium or high density residential zone.

55. I do not accept that the requirement for 2.7m floor to ceiling heights for habitable rooms within the units can be cured by a condition of consent.

Inadequate internal amenity

56. The urban design experts agreed that 44 of 69 units comply with 2 hours of solar access on the winter solstice 63.7% because the units on the southern side of the uppermost floor (501, 502 and 505) do not receive 2 hours of sunlight to their terraces. I accept Ms Morrish’s evidence that some stepping or modulation of the uppermost levels on the southern elevation could improve the sunlight access to the terraces on the southern façade on the proposal.

57. The cross-ventilation diagram (Ex A, dwg 702) indicates that 47 of 69 units achieve cross ventilation. According to Ms Morrish, 19 of those apartments rely on a highlight window (A105, A106, B102 and B103 and the units above these units) and effective cross ventilation is only achieved when the inlet and outlet have approximately the same area (Figure 4B.3 of ADG). The applicant submitted that only 13 of the units rely on a highlight window because four of the units on the uppermost two levels are two level apartments on a single façade and this arrangement achieves cross-ventilation. Furthermore, the units which rely on a highlight window have an ideal northern orientation. I accept that achieving cross-ventilation in units that front Canterbury Road may be academic, as the traffic noise is likely deter residents from availing themselves of natural ventilation most of the time.

58. I accept the agreement of the urban design experts that recesses or articulation of the Canterbury Road façade helps reduce the apparent wall length. I accept and agree with Ms Morrish’s evidence that the proposed two “slots” in the northern elevation have the capacity to provide articulation and ameliorate the mass of the building bulk, but the stepping in of each slot as it gets deeper into the building somewhat defeats the goal of dividing the building into three elements when viewed from Canterbury Road and results in poor amenity for those units on either side of the slot because many of the bedrooms, including main bedrooms, only have either a narrow or a highlight window opening onto the slot.

Overshadowing of adjoining properties

59. The applicant submitted that the DCP 2012 controls under D1.3.4 for the rear setback on boundaries shared with a residential zone are set aside pursuant to cl 6A(2) of SEPP 65, because the design criteria for 3F Visual privacy in the ADG are met by the proposal, with a 9m rear setback for the first four levels and a 12m rear setback for the levels above.

60. The Council submitted that the DCP 2012 controls under D1.3.4 for the rear setback on boundaries shared with a residential zone are not set aside pursuant to cl 6A(2) of SEPP 65, because the design criteria in the ADG referred to in relation to the rear setback are to achieve visual privacy between developments, whereas the DCP controls for setbacks have a broader objective of minimising building size and bulk by setting back upper storeys and minimising amenity impacts on adjoining properties, including but not limited to visual privacy.

61. The applicant submitted that the design criteria under 3F Visual privacy of the ADG are not limited to achieving visual privacy and I can disregard the topic or heading in the ADG because Figure 3F.5 of the ADG refers to “resolving amenity impacts” and the content of section 3F also relates to solar access and the amenity of the rear of developments.

62. I accept the applicant’s submission that the DCP 2012 numerical control in C7 of D1.3.4 for a rear setback on a boundary with a residential zone has no effect pursuant to cl 6A(2) of SEPP 65, because the DCP control requires a greater setback on upper levels when compared to the distances required for separation from side and rear boundaries in the ADG. Visual privacy is one of a number of potential amenity impacts and is sufficiently integral to amenity impacts to be addressing the same constraint that the DCP is seeking to address.

63. I accept the applicant’s submission that the rear setbacks of 9m for the first four storeys and 12m for the fifth and sixth storeys complies with the design criteria for separation distances to the rear boundary in the ADG at 3F. Notwithstanding this compliance, the evidence of the urban design and planning experts suggests that some small adjustments of the building envelope on the southern side of uppermost levels could substantially improve the amount of sunlight reaching the backyards of the adjoining properties on the winter solstice. These properties are unlikely to be redeveloped in the near future given the current low yield of the development standards for the R3 zone and so it would be a desirable outcome to achieve the benchmark set by the urban design experts for 3 hours of sunlight to at least 50% of the backyards of the two adjoining properties on the winter solstice.

Conclusion

64. For the reasons given in the judgment, I am not satisfied that the applicant has demonstrated that adequate floor to ceiling heights are achieved or that adequate internal amenity in the residential units is achieved by the proposal.

Orders

65. The orders of the Court are:

1. The Applicant is granted leave to amend the application by relying on amended proposal.

2. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendments of the application for development consent, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is dismissed.

4. Development Application No. 155/2018 for the demolition of existing buildings and construction of 6 storey mixed use development and two levels of basement parking is refused.

5. The exhibits, other than Exhibits 2, A and M, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 28 February 2020