Ceerose Pty Ltd v Inner West Council

[2017] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1474
Hearing dates:	23 and 24 August 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. The appeal is dismissed. 2. Development application no D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent. 3. The exhibits are returned apart from Exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION - Mixed use development - compatibility with the desired future character of the area – non-compliance with the floor space ratio development standard – whether contravention of development standard justified
Legislation Cited:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2013 Leichhardt Development Control Plan 2013
Cases Cited:	Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Four2Five Pty v Ashfield Council [2015] NSWLEC 1009
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ceerose Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T To (Applicant)   Solicitors: M Jaku, Jaku Legal (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2016/353072
Publication restriction:	No

Judgment

1. The Inner West Council has granted development consent for a mixed use development over three storeys at 173-175 Norton Street, Leichhardt (the site) - which is under construction D/2014/717 (the original consent). Rather than lodge an application under s 96 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), to amend the original consent the applicant has proceeded along the path of a new DA - D/2016/504 (new DA) - seeking consent for the approved development with an additional fourth floor containing a penthouse.

2. The Council has refused development consent to the new DA and the applicant has appealed that decision to the Court under s 97 of the EPA Act. As the construction works on the site are at a point where they can be completed under the original consent; or proceed in line with this DA, I must determine how the development will be completed.

3. In approving the original consent the Council allowed a development with a floor space ratio (FSR) of 1.69:1 - notwithstanding, the development standard in cl 4.4 of the Leichardt Local Environmental Plan 2013 (‘LEP’) provided an FSR of 1.0:1 for the site. As it happened the applicant was given the benefit of the bonus floor space allowance under cl 4.4A up to 1.5:1 - and some. The proposed development has an FSR of 1.96:1; and, again the approval is reliant upon the Court upholding the applicant’s cl 4.6 written request to contravene the development standard in cl 4.4A of the LEP.

The central issue

4. What is in contention is the fourth level containing the 3 bedroom penthouse.

5. The Council maintains on the evidence of Kerry Gordon (the Council’s consultant planner) that the cl 4.6 written request prepared by the applicant’s town planner, Andrew Darrock (Appendix B, Exhibit B) seeking to justify the contravention of the development standard in cl 4.4 and/or the bonus FSR in cl 4.4A – does not demonstrate that the development standard is unreasonable or unnecessary in the circumstances of the case: cl 4.6(3)(a). Nor does it demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard: cl4.6 (3) (b). In those circumstances, the Council submits that the Court cannot be satisfied that the written request has adequately addressed the matters required to be demonstrated: cl 6.4(4)(a)(i). It also contends that the Court cannot be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of cl4.4 (1)(a)(i) and/or cl 4.4A(3)(c). In short, the building is not compatible with the desired future character of the area in relation to its bulk, form, uses and scale: cl 4.4A(3)(c).

6. The Council’s Amended Statement of Facts and Contentions (‘ASOFC’) filed on 18 May 2017 (Exhibit A) has raised several other contentions. In principle, these matters have been resolved between the parties. Therefore, the parties have asked me to address the central issue, as identified, before anything else. Subject to that determination, if required, I should then allow them an opportunity to address me about the conditions of consent. This course necessarily requires that I first determine the jurisdictional issue raised by the applicant’s written request for the variation of the development standards in cl 4.4A under cl 4.6 of the LEP. In that regard, the compatibility of the development with the desired future character of the area is an objective of the particular development standard: cl 4.4A(c). As such, my satisfaction about whether the development is consistent with that objective and relevant zone objectives is called up specifically by cl 4.6(4)(a)(ii) and indirectly by some of the other sub clauses.

7. In order to identify the desired future character for the purpose of this appeal I have had regard to the provisions of the LEP, the relevant sections of the Leichhardt Development Control Plan 2013 (‘DCP’) and the planners’ evidence both onsite and during the hearing. Let me start by describing the features of the site in its context as it currently presents.

Facts

8. The following facts are uncontroversial:

1. The site is located on the eastern side of Norton Street, Leichhardt opposite the intersection with Macaulay Street. It is rectangular in shape with a street frontage to Norton Street of 18.58m and a land area of 708 square metres.

2. The site falls from the rear boundary to the front in the order of 1.5m.

Locality

9. To the east, at the rear, are single storey residential dwellings, with rear yards adjoining the common boundary with the site.

10. To the south, adjoining the site at 169-171 Norton Street is a single storey brick commercial building containing a restaurant called "Bar ltalia". The restaurant has a rear open courtyard for dining. Further to the south are a series of one and two storey commercial /retail premises.

11. The adjoining property to the north at 177 Norton Street is a red brick two storey residential older style, walk up flat building with units above a ground floor parking level. This building is orientated to the north with kitchen and bathroom windows facing south across the site. The residential levels are setback about 3m from the common northern boundary and the apartments are arranged north to south on the site. The building is, on any view, an anomaly in this part of the streetscape.

12. The dwellings approved in the original DA are generally oriented east-west and partly built to the common boundary to avoid privacy impacts to 177 Norton Street. Further to the north are a series of single storey dwellings.

13. The adjoining properties to the east comprise two detached single storey dwellings which are oriented to Arthur Street. Their back yards are already overlooked by the approved development. These dwellings provide the interface of the rear of the retail and commercial properties fronting Norton Street. These dwellings are setback about 11-12m from the common boundary by landscaping, and a shed/outbuilding located on the common boundary. The ground level of these properties is about 3m higher than the subject site.

14. On the other side of Macaulay Street, opposite the site, are single storey dwellings which front the street and present their side boundaries to Norton Street. To the south-west are a series of two storey commercial buildings and one three storey commercial building owned by United Care. To the north- west are a series of single storey commercial buildings.

Zoning

15. The site is a transitional site; located at the northern extremity of the B2 - Local Centre Zone with low density residential development to the south (except the flat building at 177), east and west. The transitional nature of the site is also identified in the zoning of the surroundings properties; with the properties to the north-east and north-west zoned R1 General Residential.

16. It is also within the Leichhardt Heritage Conservation Area and subject to the provisions of cl 5.10 - Heritage Conservation: 5.10(1) Objectives, 5.10(2) Requirements for consent of the LEP. The other state and regional planning controls and polices which apply are outlined in the ASOFC.

17. Relevantly, the provisions of Part C2.2.3.5 of the DCP titled “Leichhardt Commercial Distinctive Neighbourhood” describes the existing character of the area in the following terms:

“Existing Character

The character of Norton Street is both historic and modern, typified by large, modern commercial developments that have transformed the southern part of the street into a sub-regional commercial centre.

Norton Street, between Parramatta Road and Marion Street, was originally a boulevard of mostly Victorian detached and semi-detached two storey residences. It generally developed as a desirable residential precinct in close proximity to the retail and commercial development on Parramatta Road. However, over the years, unsympathetic redevelopment and alterations and additions eroded the integrity of the street.

The development of the Leichhardt Town Hall in the 1880s, at the junction of Marion and Norton Streets, provides an important visual element and focus for the centre, as well as for the suburb of Leichhardt.

Most buildings are constructed on or close to the street frontage. The identity and character of the Leichhardt Commercial Distinctive Neighbourhood changes significantly as it runs from Parramatta Road to Lilyfield Road, effectively separating it into five notable areas.”

18. The DCP in this part also provides controls for the Desired Future Character. The Council has identified the following controls are relevant:

• C1 Maintain the character of the area by keeping development complimentary in architectural style, former materials.

• C5 Protect and enhance the residential amenity of dwellings in and adjoining the neighbourhood.

19. Accepting that the character changes from Parramatta Road to Lilyfield Road the DCP separates the Commercial Distinctive Neighbourhood into seven discrete sub-areas – with each having unique characteristics and additional objectives and controls.

20. The site is located within the Norton Street - Centro sub area and Part C 2.2.3.5(c) of the DCP is relevant. According to Ms Gordon the following Controls of this section of the DCP inform the desired future character of the area:

• C1 Retain and enhance the small scale dwellings used for both residential and commercial purposes.

• C5 Encourage redevelopment to reflect the small shop front character of the street.

• C7 Development is to be consistent with any relevant objectives and controls within the Leichhardt Commercial Distinctive Neighbourhood.

21. Mr Darrock, to a large extent agreed during his oral testimony that the existing character of the area is typified by a mix of two storey commercial buildings and lower scale row and detached houses (Norton Street Centro sub Area, folio 117, Exhibit E). It is fair to say that the desired future character was agreed as being to reinforce the two storey parapet form of development facing Norton Street.

22. It was also agreed that the development approved by the original consent which adopts a two storey parapet form, with a light weighted metal extension facing Norton Street (with a setback of the third storey) is a form of development that is compatible with the desired future character. And, as the fourth floor of the new DA when viewed straight on from Norton Street is not visible, the planners agreed that at least from that vantage point the proposal before the Court is compatible with the desired future character of the area. The issue in terms of desired future character turns on the impact of the proposed parapet roof form when viewed from the opposite side of the street across number 177 Norton Street. In that regard, Ms Gordon and Mr Darrock have conflicting views as to whether the proposed development achieves the desired future character of the area.

23. The experts’ different opinions arise because of the emphasis each places upon the Controls in Section 4 Part C4.1. In particular, Objective 012 and C14, which provide as follows:

• 012 To maintain and enhance the distinct identity of each centre.

• 014 To maintain the structure of centers focused around a traditional main street with distinct boundaries.

24. Mr Darrock is of the opinion that the extended roof form – which it is agreed is visible from the opposite site of Norton Street, distinctly identifies the commercial centre as anticipated by Control 012 and 014. While Ms Gordon said that these Controls invite a subtle identification of the centre - by a landscaped setback rather than by the abrupt built form now proposed.

25. I will deal with the experts’ planning evidence in more detail shortly. However, I need to record that the planners explicitly stated to the Court that their opinions about the desired future character of the area were not based on the Council endorsed Parramatta Road and Norton Street Study dated February 2016 (Exhibit 8) or the Planning Proposal for the United Care site prepared for the Council in September 2014 (Exhibit 7).

26. Instead, they told me that their views were informed by the current planning controls of the Council and as those documents have not been progressed in the last 12 months by the Council they do not consider them relevant in informing the desired future character of the area. In those circumstances, I do not accept as submitted by the applicant that they can be relied upon to support a submission that the desired future character anticipates a 3/ 4 storey development with an FSR of 1.9:1 for this site; or that a 4 or 5 storey development on the United Care site opposite. At the highest these documents are relevant circumstances of the case as part of the public interest and no higher (s 79C(e)). For that reason, I have given little weight to these documents in deciding what the desired future character of the area is for the purposes of this appeal and will say no more about them.

Lay objectors

27. The lay objectors' written evidence is contained in the Council's bundle (Exhibit E). It was supplemented by the oral evidence given by the owners of the properties at 22 and 26 Arthur Street on the day of the hearing. Generally speaking, all of the objectors oppose any increase in the height, bulk and scale of the development on the basis that it will exacerbate the overlooking and privacy impacts generated by the approved development. Moreover, they believe that a four level development is completely out of character with the existing character and desired future character of the area.

28. Mr Feighery, whose rear yard adjoins the development site, invited the Court into this area to explain his concern about people standing on the balcony of the proposed penthouse looking into his deck and dining area. He told the Court that although some of the privacy impacts of the approved development had been softened by landscape screening, the additional bulk of the penthouse level was unable to be addressed by landscaping. He believed that the penthouse would be visible from his deck and that this element of the development would overwhelm his main outdoor living area and his family's current amenity. It would block sunlight and generate further overshadowing of his property.

29. Mr Cooney agreed with his neighbour. He purchased his property, which also adjoins the site at its rear, on the understanding that the development was to be 3 storeys. In the event that the development is approved at 4 storeys he told me that he would be forced to move house.

Applicant’s evidence given by Mr Darrock

30. The applicant’s written request under cl 4.6 was prepared by Mr Darrock. It is some 24 pages in length and is found at Appendix B to the joint report (Exhibit B).

31. The written request records at p15 that it “now explicitly addresses each of the statutory criteria for cl4.6 in respect of cl4.4A of the LEP”. It also states that the written request should be considered in conjunction with the “…associated Statement of Environmental Effects and supporting material”.

Unreasonable and unnecessary

32. In respect of demonstrating that the contravention of the development standard is justified on the basis that compliance with the clause is considered to be unreasonable and unnecessary - cl 4.6(3) (a) of the LEP, the written request provides as follows at p16:

“The development is consistent with development standard and zone objectives and there are no additional significant adverse impacts arising from the proposed noncompliance on FSR. (However, it is recognised that this by itself, will not be enough to satisfy the “unreasonable or unnecessary requirement.)

The objective of clause 4.4 A except interim maximum floor space ratio proactive Street frontage is:

(1) The objective of this clause is to provide the floor space incentives to mixed use development that incorporates active street frontages at ground floor level in Zone B1 Neighbourhood Centre or Zone B2 Local Centre.

The approved scheme would provide a less efficient use of resources and be less successful in meeting the objectors the control in providing incentives to mixed use development and less successful in meeting the zone objectives.

The approved scheme would thwart the zone objectives set out in “to allow appropriate residential uses to support the vitality of local centres.

The only other alternative – reducing the intensity of the development of the site – would support or undermine the objectives of the B2 zone, in particular:

To maximise public transport patronage and encourage walking and cycling.

The proposed development would better achieve the following plan aims in the alternative compliance scheme:

(2) The particular aims of this Plan are as follows:

(a) to ensure that development applies the principles of ecologically sustainable development,

(b) to minimise land use conflict and the negative impact of urban development on the natural, social, economic, physical and historical environment,

(c) to identify, protect, conserve and enhance the environmental and cultural heritage of Leichhardt,

(d) to promote a high standard of urban design in the public and private domains,

(e) to protect and enhance the amenity, vitality and viability of Leichhardt for existing and future residents, and people who work in and visit Leichhardt,

(f) to maintain and enhance Leichhardt’s urban environment,

(g) to ensure that land use zones are appropriately located to maximise access to sustainable transport, community services, employment and economic opportunities, public open space, recreation facilities and the waterfront,

(h) to promote accessible and diverse housing types, including the provision and retention of:

(i) housing for seniors or people with a disability, and

(ii) affordable housing,

(i) to provide for development that promotes road safety for all users, walkable neighbourhoods and accessibility, reduces car dependency and increases the use of active transport through walking, cycling and the use of public transport,

(j) to ensure an adequate supply of land and housing to facilitate:

(i) employment and economic opportunities, and

(ii) the provision of goods and services that meet the needs of the local and sub-regional population,

(k) to protect and enhance:

(i) views and vistas of Sydney Harbour, Parramatta River, Callan Park and Leichhardt and Balmain civic precincts from roads and public vantage points, and

(ii) views and view sharing from and between private dwellings,

(l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area,

(m) to ensure that development provides high quality landscaped areas in residential developments,

(n) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scientific and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, and of surface rock, remnant bushland, ridgelines and skylines,

(o) to prevent undesirable incremental change, including demolition, that reduces the heritage significance of places, conservation areas and heritage items,

(p) to provide for effective community participation and consultation for planning and development,

(q) to promote opportunities for equitable and inclusive social, cultural and community activities,

(r) to promote the health and well being of residents, business operators, workers and visitors,

(s) to ensure that development applies the principles of crime prevention through design to promote safer places and spaces,

(t) to ensure that development responds to, conserves, protects and enhances the natural environment, including terrestrial, aquatic and riparian habitats, bushland, biodiversity, wildlife habitat corridors and ecologically sensitive land,

(u) to promote energy conservation, water cycle management (incorporating water conservation, water reuse, catchment management, stormwater pollution control and flood risk management) and water sensitive urban design,

(v) to ensure that existing landforms and natural drainage systems are protected,

(w) to ensure that the risk to the community in areas subject to environmental hazards is minimised,

(x) to ensure that the impacts of climate change are mitigated and adapted to.

Additionally, the severity of the burden placed on the land owner, the neighbouring property occupies/land owners (by requiring strict FSR compliance) would be disproportionate to the consequences attributable to the proposed non-compliant development bracket as per comments made in an analogous context, in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA308 (at [15]).

In this regard, the adverse impacts the proposed non-compliance with the FSR control would not be significant, while the burden imposed by requiring strict compliance would be significance stop paragraph in relation to any scan that fell short of the desired intensity, the consequences of requiring strict compliance would be:

a high built cost ( as the fixed cost of construction are defrayed over a smaller number of units);

a reduced supply of accommodation in the area; and

a lost opportunity to provide additional accommodation in a walkable precinct well serviced by public transport.

In short, the burdens that would be imposed by strict compliance would be disproportionate to the non-significant adverse impacts of the proposed FSR contravention.”

Environmental planning grounds

33. In respect of demonstrating that the contravention of the development standard is justified pursuant to cl 4.6(3)(b) of the LEP, the written request states at p19:

The environmental planning grounds to justify contravening the development standard are the better planning outcomes outlined in the discussion above. Additionally, the proposal seeks flexibility in the application of the standard where the breach of the FSR control is sought from proposed building that is compatible in bulk and scale with the surrounding buildings particularly given its location on Norton Street. This design solution is considered to achieve flexibility consistent with the objectives of clause 4.6.

The proposal provides for a better outcome in making available improved amenity, reduced impacts and a coherent streetscape. This is considered to be a better outcome consistent with the objectives of clause 4.6. The failure to set aside the standard would give rise to an inefficient use of the land (contrary to the planning intent for this the key locality).

The contravention of the control by the proposal does not give rise to an environmental effect of sufficient significance that cause concern, and it is considered that the environmental benefits the proposal, reducing the adverse amenity impacts of the development of the site in brackets of achieving the desired level intensity into brackets is on balance and appropriate environmental outcome, to justify the contravention of the development standard.

34. The written statement then proceeds to deal with the other matters raised by cl 4.6(3)(b) and (4)(a)(i) and (ii). I have read that material but do not need to quote it or in fact address it given my ultimate view that the applicant’s written request has not adequately addressed the matters required to be demonstrated by sub clause (3): cl4.6(4)(a). That alone is sufficient to warrant a refusal of the application. I will explain this later and after I set out a summary of Mr Darrock’s evidence to the Court.

35. As earlier noted Mr Darrock believes that it is appropriate that this building indicate the transition between the commercial zone and the residential zone by identifying it as different to the residential development adjoining. To that end, he believes that the roof design which is perceivable from Norton Street opposite the site is an appropriate built form to mark the identity of the commercial zone. Mr Darrock states that the planning benefit of the variation of the FSR control by the additional storey is a “better visual relationship as viewed from the Norton Street with the adjoining anomalous development at 177 Norton Street” which he believes results in better compliance with the zone objective of “reinforcing and enhancing the role, function and identity of the local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres”.

36. Mr Darrock states that the proposal is acceptable because it does not reduce the approved setbacks over the three levels and increases the side setbacks for that upper fourth level by an additional 3m and for the rear boundary the increases of the setback is 6m-12m. And, while he conceded in his oral evidence that the roof element in the new DA is moved 2m closer to the eastern boundary and is 600m higher he did not believe that this generated any additional adverse amenity impacts for the eastern properties given the large tree on the boundary and the recessive cladding on the roof.

37. In respect of the loss of outlook from the kitchen windows of the flats at 177 Norton Street, Mr Darrock stated that the loss of outlook and bulk generated by the extra level by the 3m increase in height at the roof ridge will be satisfactorily offset by the 3m increase in setback. He was of the opinion that this will result in only a minimal visual bulk and loss of outlook from these adjoining properties.

38. Ultimately, Mr Darrock advocates for a larger building than the adjoining 3 storey flat building at 177 Norton Street (softened by a landscape strip with two trees and a palm tree) because he believes that it better achieves the Controls of the local center whilst still maintaining the desired future character. He believes that that the approved scheme would provide a less effective use of resources and be less successful in meeting the objectives of the control in providing incentives for mixed use development and less successful in meeting the zone objectives. As noted earlier the written request states that the approved scheme will “thwart the zone objectives set out to allow appropriate residential uses to support vitality of local centres”. Mr Darrock also believes that there is no public benefit in maintaining the development standard because in his view “the adverse impacts of the proposed non-compliance with the FSR control would not be significant, while the burden imposed by requiring strict compliance would be significant” (p23 Appendix B, Exhibit B).

Council’s evidence given by Ms Gordon

39. Ms Gordon, who assessed the original DA (before any amendment) told the Court that she supported the original three storey development with an FSR at 1.69:1 on this site for essentially two reasons. First, the development, despite its three storeys, was compatible with the existing and desired future character of the Centro sub area because it replicated the 2 storey shop front facade character fronting Norton Street by setting back the third level residential behind a facade and providing a shop and active street frontage. Secondly, it related in bulk and scale to the proportions of the adjoining three storey residential flat building to the north - in the R1 General Residential zone - which she accepted was likely to remain for some time. As the site is about 3m lower that the adjoining properties to the east she believes that this change in level assists in reducing the bulk of the building when viewed from the rear yards of the single storey dwellings in Arthur Street. In short, the development as approved provides a suitable degree of articulation and landscaped setting to the adjacent residential uses to the north and east.

40. That said, Ms Gordon is critical of the introduction of a fourth level and penthouse behind an extended roofline which in her opinion is clearly visible and overly bulky when viewed from the opposite side of Norton Street across number 177 and from the rear yards of the properties to the east. In her opinion this element of the development is entirely inconsistent with the desired future character of the area in comparison with the two storey scale development (with a small third level "visually recessive") - as approved (Exhibit B, p9 at 2.1.37).

41. Moreover, Ms Gordon believes that the desired two storey shop front development with landscape setback introducing the B2 zone in Norton Street and differentiating that zone from the residential zone adjoining is not respected in the new DA. In her opinion the controls anticipate distinct boundaries through landscaping within a setback to introduce subtly the business zone rather than increased built form: C4.1 014 of the DCP. She does not accept that an increased roof height to identify a change in transition of zoning between residential to this commercial business area is required by the DCP controls or is compatible with the desired future character of the area in relation to its bulk, form, uses and scale. She also has grave concerns about the viability of the proposed landscaping at the street frontage (the palm and its appropriateness) and does not believe that the extended roof can be softened as the applicant contends by the landscaping offered in the new DA.

42. According to Ms Gordon the development as approved has taken full advantage of the bonus FSR under cl 4.4A of the LEP with an approved floor space of 1,197.1m2 on a site with an area of 708.5m2, equating to a FSR of 1.69:1. And while the approved development, at three storeys, is in her view consistent with the desired future character in relation to bulk, form and scale any increase in FSR and the height of built form is not. The additional gross floor area of 149m2 for the penthouse taking the FSR to 1.9:1 is for Ms Gordon an overdevelopment of the site. The two storey scale of the development with a small third level component visible in a different and "visually recessive" material (as approved) will be lost in her opinion and be clearly visible as a fourth storey component from the view diagonally across the road which is for Ms Gordon the critical viewing area for the subtly landscaped transition of the zones. The benefit of the change in materials to make the third floor "visually recessive" is lost in this proposal as the change will need to occur on two levels and this is significantly larger and more visible.

43. Ms Gordon is also of the opinion that the additional floor has an unacceptable visual bulk and character when viewed from the adjoining residential properties to the east. Whilst the additional floor is set back from the rear wall of the level below, the proposal encloses at the sides what was previously approved as an open sided, low flat roof awning over the balconies of the level 2 apartments which was setback 750mm from the rear of the building. The open awning is now proposed to be replaced by a roofed element without setback to the rear of the buildings. The roof element is in her assessment an additional 1m in height as the roof form provides a screening element preventing persons using the balcony of the new dwelling from viewing downwards into those rear yards of the properties to the east.

44. While the changes to the rear are required to ensure that privacy is maintained to the east it results in additional bulk when viewed from the rear yards of the objectors. Without any landscaping she believes that the development from this perspective appears overwhelming. Ms Gordon is also concerned about the additional visual bulk impacts of an additional floor for the property to the south. When viewed from the kitchen windows she believes that the residents will see the upper level and more visual bulk resulting from higher development despite the setback and proposed planting. In her assessment the Figures at C140 and C141 of the DCP relating to interface amenity shows that Control C2 in Part C Section 4.5 is applicable to side setbacks as well. In short, the Controls are intended to achieve minimum 3m ground and 6m above ground level setbacks where a site adjoins a residential zone and that “maximum building height is compatible with the height of existing or approved buildings”. That said, she accepts that the approved development is acceptable however notes the additional level creates an overly bulky and overbearing development that significantly reduces outlook for these resident in the flats on southern boundary.

45. As the development will have an unacceptable visual bulk when viewed from all surrounding vantage points, private and public (other than when viewed directly opposite the site in Norton Street), Ms Gordon is of the opinion that the new DA cannot satisfy the criteria to achieve the FSR bonus under cl 4.4A of the LEP and, as such, the cl 4.6 variation request relying on this provision cannot be well founded.

46. In summary, Ms Gordon believes that the cl 4.6 request does not meet the zone objective "to reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres". By providing a larger development than that at 177 Norton Street she believes that this does nothing to ensure the development assists with the function of the local centre. In fact, Ms Gordon says that the reduction in non-residential space to 86m2 or thereabouts is tokenistic and detracts from the function of the local centre more that the visual appearance of the adjoining residential flat building at 177 Norton Street. Furthermore, Ms Gordon believes that the increase in shadow generated by the fourth storey upon any future redevelopment at the Bar Italia site is significant at midwinter and would make obtaining any northerly solar access to that development unlikely. The development as proposed on that basis cannot be described as being consistent with the zone objective identified above.

Consideration/Findings

47. I accept that the general series of controls relating to the interface between development at the zone boundary and different uses is to be read in conjunction with the Distinctive Neighbourhood controls in the DCP. And, I appreciate that the site is in the Norton Street – Centro sub area. The experts agree that within this area, development is identified as characteristically being a mix of two storey commercial buildings and low scale row and detached housing and the desired future character seeks to discourage large scale commercial developments and encourage redevelopment to reflect the small shop front character of the area.

48. With that in mind I agree with Ms Gordon that the proposed additional level containing a large dwelling results in a development that is not reflective of the desired future character of the area. The development as proposed changes from an approved three storey development, with a visually recessive third level, to a four storey development that can be read as such in the streetscape of Norton Street from a critical viewing point opposite to the north of the site. Both experts acknowledge that this location is an important position from which the interface between the zone boundaries can be best appreciated. Instead of development stepping down in height with the slope of the site I must agree with Ms Gordon’s assessment that the development results in an unacceptable increase in height at the zone boundary to the low density residential area adjoining. Furthermore, I am not satisfied on the available evidence that the proposal provides an adequate side setback to the south or viable landscaping in that location consistent with the controls to ameliorate the visual bulk impact of the proposed four storey development when viewed from the lower density residential zone.

49. Mr Darrock in the cl 4.6 written request states that in approving the original application the Council must have considered that the proposal met the desired future character test when allowing an FSR of 1.69:1. And, while numerically the proposal increases the FSR from 1.69:1 to 1.9:1 he states that the test must be how this proposal results in the development that is no longer being compatible with the desired future character of the area in relation to bulk, form, uses and scale - objective (c) to the standard in cl 4.4A. Mr Darrock then describes the proposal as retaining the small shop front character in the rhythm and scale of the presentation of the building as three elements with a strong parapet and receding roof beyond.

50. The cl 4.6 variation request focuses on whether the additional storey is acceptable visually in the streetscape of Norton Street. However, as Ms Gordon identifies in her evidence it fails to adequately address the intention of the transitional site provisions which are clearly to ensure that the development in the zone with the higher density does not have unacceptable impacts upon properties in the adjoining lower density residential zone. In my opinion the evidence supports a finding that the breach of the FSR standard in cl 4.4A generates unacceptable amenity impacts in terms of visual bulk for the neighbours’ to the east and to a lesser extent to the south and constrains the development potential of the site to the south by overshadowing that site. In those circumstances the new DA cannot be described as being compatible with the desired future character of the area in terms of bulk, form and scale. While the penthouse will not generate additional overlooking to the rear yards of the properties in Arthur Street the approved parapet at the rear of the building will be brought forward 2m toward the rear yards to the east. It will not only be closer but the bulk will be at least 600mm or 1m higher (depending of which expert’s measurement) when viewed from the rear yards of the properties of the objectors. The roof elements, as Ms Gordon states, will in my opinion be visually intrusive despite the cladding introduced to reduce that impact. The fact that the residents to the east may only make out the leading edge of the penthouse roofline behind a closer and extended roof area is not a sufficient planning ground to justify the impact generated by contravening the development standard in cl 4.4A.

51. It is clear from standing in the rear yards of the objectors’ properties that their residential amenity is already significantly impacted upon by the approved development at 3 storeys which orientates balconies toward these properties main outdoor areas. While I accept that some overlooking might be anticipated at a zone interface that has already been exhausted under the approved DA, any increase of the bulk generated by more FSR to their rear yards is in my opinion unreasonable in the circumstances of the case. To a much lesser extent, but still relevant, is the adverse impacts for the residents of the flat building at 177 Norton Street. I accept Ms Gordon’s evidence that they will lose existing outlook to the sky from their kitchen windows. Instead they will look onto additional bulk and a higher building and roof form, albeit softened by some landscaping and a break in that roofline. This impact is unreasonable and unnecessary and a direct result of the breach of the FSR standard.

47. Ultimately, I accept Ms Gordon’s expert assessment that the additional fourth storey of the development, which is wholly above the bonus FSR applicable for the site results in yield for the developer at the expense of the streetscape at Norton Street (opposite view) and the amenity of the adjoining properties to the east and south

48. The objectives of cl 4.6 of the LEP dealing with exceptions to development standards are:

1. To provide an appropriate degree of flexibility in applying certain development standards to particular development,

2. To achieve better outcomes for and from development by allowing flexibility in particular circumstances.

54. However, the opportunity to apply such flexibility in this case is not made out by the applicant’s written request even taking into account the further evidence marshaled in support of that application at the hearing. The Court in Wehbe V Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (‘Wehbe’) at [44]-[48] identified various ways in which an applicant might establish that compliance with a development standard is unreasonable or unnecessary, namely that the underlying object would be defeated or thwarted if compliance was required; that the development standard has been virtually abandoned or destroyed by the Council’s own actions in departing from the standard; or that the zoning of the land is unreasonable or inappropriate. Although the decision in Wehbe concerned an objection under State Environmental Planning Policy No 1, the analysis has been held as applicable to a variation under cl 4.6 where cl 4.6(3)(a) uses the same language as cl 6 of SEPP1: Four2Five Pty v Ashfield Council [2015] NSWLEC 1009 at [62]. Consistency with the objective of the development standard and the zone objectives is now addressed specifically in cl 4.6(4)(a)(ii). In this case the written request does not identify any satisfactory way of establishing that compliance is unreasonable or unnecessary or any sufficient planning ground to justify contravention of the development standard in the circumstances of the case.

55. I do not accept that there is any unreasonable burden placed upon the applicant as asserted: (written request p19) in this case. The applicant has an approved development that does not require strict compliance with the standard. I do not accept that there is any evidence before me to support a finding that the approved scheme would provide a less efficient use of resources and be less successful in meeting the objectives of the control of providing incentives for mixed use development and less successful in meeting the zone objectives The approval of this new DA does not result in a better planning outcome for the residents to the east, south or north for the reasons stated by Ms Gordon. It cannot be seriously submitted on the evidence that a refusal of this 3 bedroom penthouse will unreasonably result in a reduction of accommodation in the area. The development otherwise offers 16 new apartments in the area. Nor is it relevant that if refused the applicant will suffer a higher build costs (as the fixed cost of construction are defrayed over a smaller number of units). It is not a better planning outcome to adversely impact upon existing residents’ amenity to achieve a higher yield for one applicant. Ms Gordon’s expert opinions as summarised are not displaced by the written request under cl 4.6 which I consider to be inadequate.

56. Accordingly, I am not satisfied that the written request relied upon by the applicant has demonstrated that compliance with the development standard in cl 4.4A of the LEP is unreasonable or unnecessary in the circumstances of the case cl 4.6(3) (a); or for that matter, that there are sufficient environmental grounds to justify contravening cl 4.4 of the LEP: cl4.6(3)(b). The applicant's written request has not adequately addressed the matters required to be demonstrated by sub clause (3)(b) as required by cl (4)(a)(i). Therefore, the application must be refused consent and the appeal dismissed.

57. The court orders are:

1. The appeal is dismissed.

2. Development application no. D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent.

3. The exhibits are returned apart from Exhibits A and 1.

Commissioner S. Dixon

Decision last updated: 01 September 2017