Ceerose Pty Ltd v Inner West Council

[2017] NSWLEC 1080

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1080
Hearing dates:	25 November 2016
Date of orders:	08 May 2017
Decision date:	23 February 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	(1) The appeal is upheld. (2) Development Application D/2015744 for the demolition of the majority of the existing building and the construction of a mixed use development at 447-451 Parramatta Road and 32 - 44 Jarrett Street, Leichhardt is approved subject to the conditions in Annexure A. (3) The exhibits, except Exhibits A, D and 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION – mixed use; adaptive reuse; overdevelopment; clause 4.6; Parramatta Road Corridor Urban Transformation Strategy; desired future character; waste collection; access; parking; resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013
Cases Cited:	Veloshin v Randwick Council [2007] NSWLEC428
Category:	Principal judgment
Parties:	Ceerose Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr M Staunton (A) Solicitors Mr M Jaku, Jaku Legal (Applicant) Mr M Bonanno, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/148103
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of a development application by Leichhardt Council, now Inner West Council (the Council), for the demolition of existing buildings and construction of a mixed use development at 447-451 Parramatta Road and 32 - 44 Jarrett Street, Leichhardt (the site).

2. The key issue associated with the appeal was the potential overdevelopment of the site, in particular the height and bulk of the development to Parramatta Road, and the non-compliance with the FSR control. A secondary issue was the proposed access and associated waste management from Jarrett Street.

Background and the proposal

3. Development Application D/2015/744 was submitted to the Council on 23 December 2015. The application sought consent for the demolition of all existing buildings previously used as a bakery (excluding part of the facade to Parramatta Road), remediation and excavation of the site and construction of a 6 storey mixed use development. This comprised two buildings; one fronting Jarrett Street, the other Parramatta Road; separated by an internal landscaped courtyard and collectively containing 4 commercial tenancies and 43 residential dwellings above a shared basement car park. The total FSR proposed was 2.12:1.

4. On 12 February, 2016, the applicant lodged an appeal against the deemed refusal of the application.

5. A section 34 conciliation conference was held on 23 May 2016, which was adjourned for further conferences in June, July and August, 2016. It commenced with a view of the site and surrounds and with comments from adjoining objectors.

6. Various amendments to the plans were proposed as part of the conciliation process but did not result in a conciliated outcome. The conciliation process was therefore terminated and the matter proceeded to a hearing under the provisions of section 34(4)(b)(i) of the Land and Environment Court Act 1979.

7. On 15 September, 2016 the Court granted Leave to the applicant to rely on amended plans as comprising the application as amended.

8. The amended application proposed a reduction in the number of units albeit retaining the same floorspace ratio (FSR) of 2.12:1, retention of much of the fabric of the existing bakery building fronting Jarrett Street, increased open space and setbacks, and reduced excavation as a result of replacing the multi level basement car park with a single grade car park accessed off Jarrett Street.

9. Specifically the amendments:

1. reduced the number of units from 43 to 36;

2. reconfigured the apartments;

3. increased the communal open space to exceed 25%;

4. increased parking to provide 47 bays in a simplified single level car park as distinct from 42 bays in a multi level car park built below grade as was initially proposed;

5. retained the heritage bakery building fronting Jarrett Street with its integration into the development rather than its demolition; and

6. reconfigured the commercial tenancies fronting Jarrett Street with a café proposed adjoining the western boundary.

10. The applicant’s architect argued that the amended application related the development to its context resonating with the industrial heritage of the area with materials to match the retained bakery. The amended design presented a lower height to Jarrett Street relocating floorspace toward the Parramatta Road frontage. The lowest three storeys of the Parramatta Road facade aligned with adjoining properties with a 6m setback to Parramatta Road for levels 3 and 4, and a 7m setback now proposed for level 5.

11. The amended application resolved a number of contentions raised by the Council, namely the adequacy of the communal open space, deep soil landscaping and solar access to the residential apartments.

12. The Council’s remaining contentions were that the development constituted an overdevelopment of the site and that the proposed access arrangements were inadequate in terms of waste management. Further, that there was insufficient information and some inaccurate plan details which needed to be addressed.

13. At the commencement of the hearing, Leave was sought, not opposed and granted to further modifications to the amended application. This included the provision of additional details on the plans as sought by the Council (the Revision E plans). It was agreed that the Revision E plans contained minor modifications which did not substantially amend the application.

The site and locality

14. The appeal site is located on the northern side of Parramatta Road between Rope Street and Renwick Street. Jarrett Street is at the rear.

15. The site compromises four allotments which are legally described as Lot 504 DP 852233 (which is subject to easements), Lot 1 DP228342, Lot 29 Sec 2 DP 612, and Lot 30 Sec 2 DP 612.

16. The combined site area is approximately 1,729.6m2 with a frontage of 18.355m to Parramatta Road and 38.835m to Jarrett Street.

17. The site presently accommodates a part 1 storey, part 2 storey commercial building fronting Parramatta Road, a part 1 storey and part 2 storey factory building fronting Jarrett Street, previously used as a bakery, and an open car parking area with access from Jarrett Street.

18. The site forms part of Leichhardt's commercial strip along Parramatta Road. The predominant built form comprises 2 storey buildings featuring high parapets with commercial or retail uses at ground and first floor, with some residential development on the first floor.

19. The properties at the rear fronting Jarrett Street contain predominately residential development.

Relevant Controls

20. The following controls are of relevance:

1. State Environmental Planning Policy No.65 (Design Quality of Residential Flat Development) (SEPP 65).

2. Leichhardt Local Environmental Plan 2013 (the LEP), specifically:

1. Clause 1.2 (Aims of the Plan)

2. Clause 2.3 (Zone Objectives and Land Use Table);

3. Clause 4.4 (Floor Space Ratio)

4. Clause 4.4A (Floor Space Incentives for active street frontages)

5. Clause 4.5 (Calculation of floor space ratio and site area)

6. Clause 4.6 (Exceptions to development standards)

7. Clause 5.10 (Heritage Conservation).

3. Leichhardt Development Control Plan 2013 (the DCP).

21. The relevant provisions of Clause 4.6 are as follows:

4.6 Exceptions to development standards

1. The objectives of this clause are as follows:

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.

2. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

3. Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

2. that there are sufficient environmental planning grounds to justify contravening the development standard.

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

1. the consent authority is satisfied that:

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

2. 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

3. the concurrence of the Secretary has been obtained.

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

1. whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

2. the public benefit of maintaining the development standard, and

3. any other matters required to be taken into consideration by the Secretary before granting concurrence.

22. The site is zoned B2 - Local Centre under the LEP and the proposed development is permissible with consent.

23. Under the LEP the site has a maximum permissible FSR of 1.5:1. The proposed FSR exceeds this at 2.12:1 or by 41.3%. There are no height controls applicable to the site under the LEP but DCP height controls apply.

24. In terms of cl 5.10, the site is not a listed heritage item under the LEP however the front portion of the site is located within the Parramatta Road Conservation Area. The site is also within the vicinity of several heritage items. The Council agreed that there was merit in adaptive reuse of the bakery building.

25. The applicant sought to include consideration of the Parramatta Road Corridor Urban Transformation Strategy (the Parramatta Road Strategy) released by UrbanGrowth NSW in November 2016 immediately prior to the commencement of the hearing. In the Parramatta Road Strategy, it is stated that the Strategy had been adopted by the NSW Government and was supported by a Ministerial Direction under s 117 of the EPA Act to give the Strategy statutory force. However, at the time of the hearing, there was no evidence that a s117 direction had been issued and the Council therefore questioned how much weight the Strategy should be given.

26. The applicant argued that the Strategy should be given significant weight as it gave a clear indication of the Government’s desired future character for this section of Parramatta Road, all future planning proposals would need to be in accordance with it once the s117 direction was issued, and the application accorded with the form of development envisaged under the Strategy.

Objectors’ submissions

27. In response to notification of the application, 6 objections were lodged as well as a petition. One of the objections was from the adjoining neighbor at 443 Parramatta Road who sought to have his site included within the development, claiming his site was landlocked and he would lose development potential and value if the development proceeded in isolation of his site. If the development proceeded as lodged this neighbor raised concerns with overshadowing, privacy and noise, particularly having regard to the fact that a development had also been approved on his other boundary, being at 441 Parramatta Road.

28. One of the other objectors was happy with the density and new dwellings but raised concerns that there was insufficient parking which would impact on parking availability within surrounding streets which was already at capacity.

29. The other four objectors raised concerns with:

• Overdevelopment in terms of floorspace, bulk and density with a claim that the size and height proposed did not fit the street or area and would block city views;

• Heritage impacts;

• Management of demolition, excavation and construction, including traffic management;

• Adequacy of parking and impact on surrounding streets; and/or

• Impact on lifestyle and local community.

30. The petition was organised by a resident of Rofe Street and contained 54 signatories. It raises concerns with the overdevelopment of the site with a building inconsistent with the character of the area, the diminishment of the historical nature of the area, and inadequate vehicle access and parking, with parking overflow into neighbouring streets already under pressure.

Issues in Contention

Overdevelopment

31. Mr Bonnano for the Council contended that height, bulk and scale were the key issues that need to be considered in determining the application, in particular whether the exceedance of the FSR development standard was justified under the provisions of cl 4.6 of the LEP.

32. The parties agreed that there was no LEP height control but there was a floorspace ratio (FSR) development standard which need to be complied with unless the variation request submitted under clause 4.6 justified the non-compliance.

33. Mr Staunton, counsel for the applicant, gave great weight to the Parramatta Road Strategy stating that it set design future character for the site and its surrounds. Under the Strategy, FSR’s of 3:1 and building heights up to 22m were contemplated in this section of Parramatta Road and a height of 14m to Jarrett Street.

34. Mr Bonanno was critical that only selected elements of the Strategy had been provided to the Court and noted that no s117 direction had been issued to give the Strategy any formal statutory standing. He questioned how much weight if any the Court should give to this Strategy arguing that the height and FSR’s canvassed had to be read in conjunction with other elements of the Strategy and may not eventuate. The Council considered the development should be assessed against existing controls and that, as proposed, it would be out of character with the existing Parramatta Road streetscape and controls.

35. The Council referenced Veloshin v Randwick Council [2007] NSWLEC428 which at para 32 states as follows:

32 Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed.

Planning principle: assessment of height and bulk

• The appropriateness of a proposal’s height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are:

Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.)

How does the proposal’s height and bulk relate to the height and bulk desired under the relevant controls?

• Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are:

Does the area have a predominant existing character and are the planning controls likely to maintain it?

Does the proposal fit into the existing character of the area?

• Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is:

Is the proposal consistent with the bulk and character intended by the planning controls?

• Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is:

Does the proposal look appropriate in its context?

Note: the above questions are not exhaustive; other questions may also be asked.

36. The Council argued that the height and bulk were excessive, not as envisaged by the controls and would be out of character with the area.

37. The applicant argued that there was a clear distinction between what was there now and the desired future character of the area, of which other redevelopment in the area and the Parramatta Road Strategy, not the current controls, were the most informative.

38. The applicant tendered a file (Exhibit C) containing a number of development consents and associated documents to demonstrate that the Council had approved at least 6 developments in the vicinity of the site which breached DCP height and/or LEP FSR controls. The Council claimed this was not an exhaustive list and ‘cherry picked’ applications to suggest the controls had been abandoned, which the Council disputed.

39. Expert evidence on planning matters was provided by Mr Andrew Darroch for the applicant and by Mr Geoff Goodyer for the Council.

40. The planning experts were both satisfied with the development as it presented to Jarrett Street but disagreed on the acceptability of the bulk, scale and height to Parramatta Road, and of the FSR exceedence sought, in terms of the visual impact to Parramatta Road.

41. Mr Goodyer argued that the character of Parramatta Road in the vicinity of the site was predominantly 2 storey interspersed with 3 storey development, with development over 3 storeys an exception. He accepted that there was some 4 and 5 storey development, but noted that upper levels were generally setback. His concern was not so much with the 3 storeys proposed at the street front but with the levels above which he considered out of character.

42. Mr Darroch argued that the existing ‘underdeveloped’ sites in Parramatta Road should not be determinative of the desired future character. He considered the Parramatta Road Strategy was providing very clearly direction on what the likely future character would be, or was desired to be. Rather than reflect the underdeveloped character that existed, Mr Darroch considered the application to be compatible with the form (height, bulk and scale) envisaged by the Strategy and with a number of new developments in the area.

43. Mr Goodyer accepted that the relevant FSR objectives which the cl 4.6 variation request had to satisfy were those in cl 4.4A, not cl 4.4 of the LEP. Clause 4.4A provides for the 1.5:1 FSR control. Mr Staunton submitted this was relevant as objective c) of cl 4.4A requires that development reflect the desired future character of the area, not the existing character.

44. Clause 4.4A reads as follows:

4.4A Exception to maximum floor space ratio for active street frontages

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

2. This clause applies to land identified as “Area 1” on the Floor Space Ratio Map.

3. Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied that:

1. the building will have an active street frontage, and

2. the building comprises mixed use development, including residential accommodation, and

1. the building is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.

45. Under cl 4.4A the site is located in “Area 1” where mixed use developments are permitted to have a maximum FSR of 1.5:1. In evidence, Mr Goodyer indicated he did not know the extent of Area 1. Mr Staunton argued that Area 1 was the appropriate area to consider in determining the acceptability of the cl 4.6 variation sought and was the area where Mr Darroch had researched the FSR exceedences contained in Exhibit C.

46. The experts agreed that the development will have active street frontages and comprised mixed use development including residential accommodation. However they disagreed whether the building was “compatible with the desired future character of the area in relation to its bulk, form, uses and scale”.

47. Mr Goodyer looked to the nature of the majority of development in the vicinity and to the LEP maximum FSR of 1.5:1 as well as to the wall height and envelope controls and objectives in the DCP. Mr Darroch focused on recent redevelopment in Area 1 and the desired future character envisaged in the Parramatta Road Strategy.

48. In particular, in evidence, Mr Darroch indicated that the cl 4.6 variation request to exceed the FSR had regard to the sites that had been redeveloped in proximity in Parramatta Road. He amended the cl 4.6 to have regard to the Strategy when it was released as it reinforced his view of the appropriate scale and form desired for future development in the area.

49. The evidence on the Strategy was incomplete as not all the Strategy documents were provided to the Court. The applicant tendered the main Strategy document and extracts from the Implementation Tool Kit and the Council the Fine Grain Study. However, the planning experts agreed that the Fine Grain Study looked at eight specific character areas and the site was not in any of these areas.

50. The experts agreed that, whilst the LEP did not contain a height limit for the site, the DCP references a 6m street wall height and then a building envelope from that point angling 45 degrees. However, it was the applicant’s position that the building envelope controls and example in Part C of the DCP were not definitive or necessarily applicable to mixed use development nor did they deal with existing street wall heights of 3 storeys or greater than 6m.

51. Mr Darroch agreed with Mr Goodyer that the DCP street wall height control maximum of 2-3 storeys was appropriate and it was proposed in the application. What was disagreed was the form of development that could occur above this street wall height.

52. The experts agreed that the Council’s controls were not useful in describing the desired future character and were also inconsistent with the existing bulk and character of some of the redevelopment in the area.

53. In Mr Darroch’s view, height and floorspace above 3 storeys was appropriate if it was setback. He cited the extension of the Petersham Hotel at 477 Parramatta Road at 5 storeys which he considered had been ‘done well’ albeit he didn’t know the actual FSR. Mr Goodyer argued the hotel was 4 storeys but with some fifth storey elements.

54. In terms of the examples of other FSR exceedences, Mr Darroch indicated he had researched the approvals in Exhibit C including reports to Council having walked the area to ascertain where substantial new development had occurred. His findings suggested to him that the FSR standard had been abandoned. The Council was critical that Mr Darroch had only looked at six sites.

55. The applicant argued that the amended proposal sought to have less massing on Jarrett Street to respond to the heritage values of retaining and adaptively reusing the bakery and in return have additional massing in a building set above and behind the Parramatta Road façade.

56. In terms of the cl 4.6 variation request, Mr Goodyer did not raise an issue with the objectives of the zone in which the site was situated but with the desired future character objective of the FSR standard.

57. Mr Darroch argued that the cl 4.6 variation request justified the FSR sought on the basis of the following:

1. The site is located in an area undergoing transition with the character changing over the last decade from a commercial and industrial area to mixed uses consistent with the desired future character. Specifically, in the vicinity of the site, development varied from 2-3 storey retailing to Parramatta Road with warehouses at the rear and more recent 4-5 storey mixed use development.

2. The proposal provides employment opportunities in a highly accessible location close to public transport.

3. The development makes a significant contribution to the industrial heritage of the locality by predominantly preserving the former bakery building. A significant portion of the floorspace which caused the proposal to exceed the FSR control arose from the retention of the bakery building for its heritage and streetscape contribution achieving a public benefit at the cost of introducing constraints to how the site can be developed. Retaining the ‘bakery building’ results in significantly more commercial floorspace than originally desired by the applicant, or that is required to be classified as a mixed use development, and there are design limitations on how that ‘bakery’ floorspace can be used.

4. The intent of the Conservation Area controls are met in terms of the Jarrett Street frontage and the 3 storey facade to Parramatta Road. It was only that portion of the building situated above the parapet line of the facades on Parramatta Road that was of concern to the Council but this was setback and there was evidence of new development setback above parapets in the area. Furthermore, there is no height limit in the LEP.

5. The site has an atypical large depth which provided the ability to develop a central ‘residential tower’ setback from Parramatta Road whilst still retaining a lower form of development fronting Jarrett Street. However, to meet the Apartment Design Guide requirements and achieve good amenity for the proposed residential dwellings, additional floorspace was required to enable all components of development on the site to be integrated. This resulted in a two part building form which would not adversely impact residential neighbours.

6. In contrast, a compliant built form, as evidenced from an indicative built form scheme included within the cl 4.6 request, would be of a block form and have a greater impact on views, outlook and privacy of neighbouring dwellings. It would not achieve the zone objectives of a development designed to minimise amenity impacts and maximise public transport usage. Notably, the Council had not raised concerns in terms of adverse amenity impacts on neighbours arising from the additional FSR or height sought.

7. In a compliant scheme, the applicant would not retain the ‘bakery building’ or have the same interface to Jarrett Street. Nor would the same degree of street activation be achieved. Therefore the proposed scheme achieved a better planning outcome and an efficiency in use of the site having regard to its constraints.

8. Regard must be had beyond the immediate visual catchment of the site particularly given the volume of traffic on Parramatta Road with a building being seen more by vehicles driving this section of Parramatta Road than by pedestrians.

9. To delete the upper 3 storeys would be to only permit a form consistent with the original buildings in Parramatta Road and ignore examples of later redevelopment in the area – ie retain the existing character not have regard to desired future character.

10. There were numerous examples in the area where the FSR control had been set aside by the Council for new development. Research indicated developments had been recently approved with FSR’s varying from 1.76:1 to 2.75:1 which must indicate this is reflective of the desired future character and demonstrate an abandonment of the control in other approvals along Parramatta Road. The proposed development was compatible with this form of recent development.

11. The proposed residential dwellings had a high level of amenity as a result of the amount of floorspace proposed which otherwise could not be achieved with the existing site constraints.

12. The form and scale of development is supported under the Parramatta Road Strategy which sets the desired future character for the area going forward. It nominates an FSR of 3:1 and a height of up to 22m for Parramatta Road and an FSR of 1:1 and a height of 14m for Jarrett Street. The proposed development is well within these controls.

13. The development met the concurrence requirements of the Secretary, met State and regional objectives (particularly having regard to the Parramatta Road Strategy), and was in the public interest for all of the reasons outlined in the variation request.

58. Mr Goodyer accepted some exceedence to the FSR could be contemplated for the site. In his calculation to meet the DCP controls, up to 1.73:1 could be appropriate for the site but 2.12:1 was excessive.

59. Mr Goodyer also accepted that the 3 storey street wall height was not totally uncharacteristic of the area, with a prominent example at 538-548 Parramatta Road (opposite and to the east of the site). However, the element of the proposal that he considered presented excessive bulk and scale and was out of character with the area was what he described as the ‘tower’ behind. The top storeys would be clearly visible above the parapet of the façade to motorists travelling in both directions, particularly those travelling west, and to pedestrians on the opposite side of Parramatta Road.

60. Mr Darroch argued that, a 3 storey street wall height is closer to 9m than the 6m referenced in the DCP and that the important control is the building envelope setback on a 45° plane from the top of the street wall height. He argued this was incorporated into the application by providing a 6m setback to the two levels above the parapet although he acknowledged the top level was outside the building envelope. However, he argued the visual impact of the top level was minimised by a further setback and a change in materials which would achieve the same outcome as providing a ‘top’ to the building.

61. In Mr Goodyer's opinion the view of the building above the parapet line of the facades on Parramatta Road would be inconsistent with the character of the area and would not achieve the objectives of the FSR control.

62. Mr Staunton argued that the reason the development was out of character with much of the existing Parramatta Road streetscape, was because properties had yet to redevelop. Those that had redeveloped included the examples Mr Darroch provided where the FSR had been exceeded.

63. The applicant argued that, if implemented as intended, the Parramatta Road Strategy will result in major changes to the character of Parramatta Road and the application would be compatible with that desired future character. In the absence of any other indication of the desired future character, Mr Staunton submitted that this development must therefore meet the desired future character intent of the LEP objective at c. 4.4A 3c).

64. Mr Goodyer indicated that he had not had any regard to the Strategy as it was released after the Joint Expert Report had been prepared. In submissions, Mr Bonanno stated that the proposed development would be more appropriately dealt with as a planning proposal to amend the LEP to accord with the Strategy whereby all factors required by the Strategy to be addressed could be.

65. In summary, Mr Goodyer argued that the cl 4.6 request failed to justify that the development met the objectives of the standard on desired future character, that compliance was unreasonable or unnecessary as the development was not so unique as to avoid compliance with what might reasonably be expected in the zone, did not justify the 41% increase in FSR beyond that permissible in the LEP, and that there were insufficient planning grounds to warrant the exceedence sought.

66. Mr Goodyer did accept however, that the proposed development could be said to meet the objectives of the zone and of the standard at cl 4.4A other than the test of desired future character.

Access, parking and waste management

67. Expert evidence on traffic, waste and parking was provided by Mr Michael Logan and Mr Eddy Saidi for the applicant and Mr David Paton for the Council.

68. These experts had met to consider the Council’s concerns as follows:

1. The inability to accommodate adequate waste/recycling facilities and on-site collection by Council garbage trucks as well as removalist and delivery trucks in terms of adequacy of headroom and manoeuvring area;

2. Inadequate sightlines for vehicles and pedestrians from the driveway off Jarrett Street into the car park, requiring its widening and the setback of the roller door;

3. Inadequate manoeuvring area for the loading bay; and

4. Inadequate width of the driveway causing potential conflict between entering and exiting traffic.

69. In terms of waste collection, the Council’s policy and DCP requirement was that, where more than 20 dwellings were proposed, onsite waste collection should take place to minimise disruption to the street in terms of the number of bins stored there and the time taken for collection. There was also concern that, with redevelopment in the area over time, onstreet bin collection would become increasingly difficult. In any event, the car park and access needed to be designed for removalist trucks which would also accommodate garbage trucks and service vehicles.

70. The applicant however, considered onstreet bin collection should not be of concern with a caretaker to manage the bins, the low speed environment of Jarratt Street and given the nature of the street and the time of collection

71. In submissions, Mr Staunton referenced an email from the Council contemplating onstreet bin collection. He contended that the circumstances were unique and wouldn’t therefore create a precedent for onstreet collection in that the applicant was trying to adaptively reuse an item of heritage value (the bakery building) and activate Jarrett Street with a café and should therefore be given dispensation from the garbage arrangements typically imposed on residential development.

72. The engineering experts did agree that all of the Council’s concerns in terms of waste, access and the car park could be resolved if the car park entry was relocated to the western side of the site whilst still off Jarrett Street. This would enable sufficient headroom clearance and length to accommodate on-site waste collection by a Council garbage truck reversing into the site from Jarrett Street. It would also enable a waste recycling and collection room to be established including for bulky goods, provision of a wash down area adjacent to and at grade with the collection area to enable ease of access to waste bins during collection. It was also agreed that conditions could be imposed to deal with bin rooms and other waste storage issues.

73. To satisfy the engineering experts on the car park, waste and access arrangements, the development would need to be reconfigured at the Jarrett Street ground level including relocation of the cafe if it were to be retained. An internal reconfiguration of the car park would also be a consequential impact.

74. In evidence, neither planning expert raised concern with changes to the access arrangements supported by the engineers. Mr Darroch considered retention of the café and reuse of the bakery floorspace would result in activation for Jarrett Street. He did argue however, that onstreet bin collection would be preferred and would not be a precedent for other residential development in the area to argue for similar arrangements if they did not have commercial components at the Jarrett Street frontage.

75. Mr Goodyer also supported retention of the café if the driveway was relocated to encourage street activation albeit the draft conditions from the Council requiring the access to be relocated did not also require the café’s retention.

76. As the heritage contention had been resolved between the heritage experts prior to the hearing, no heritage evidence was available to the Court on the potential heritage impacts of the access modifications proposed. However, the Council indicated that their heritage consultant did not have an issue with the proposed relocated access arrangements or with the relocation of the cafe. However, no plans or conditions had been prepared to deal with the proposed redesign.

77. In closing, the applicant offered to undertake the reconfiguration of the access arrangements to satisfy the Council if required by the Court but sought Council’s advice on the café retention. It was suggested that the Court could make a preliminary finding on the acceptability of the overall development but with amendments to the access and waste arrangement which also addressed the relocation of the café.

78. The Court sought confirmation of the parties by way of agreement or otherwise to the conditions after the hearing and this was subsequently provided with the parties agreeing on the conditions requiring waste collection subject to the Court determining the appropriate method. However, there was no agreement on café retention if it was required to be relocated to facilitate the relocated access.

79. The Council did not oppose relocation of the café but did oppose its loss, arguing it was an important component of street activation for Jarrett Street. The applicant argued that retaining the café should not be required and was not necessary to achieve the street activation requirements of the LEP.

Findings

80. In amending the application, the applicant undertook a number of significant changes to address many of the concerns of the Council. An appropriate interface to Jarrett Street was provided by adaptively reusing the majority of the former bakery building, providing active street frontages to both Jarrett Street and Parramatta Road, and providing an appropriate scale of development to Jarrett Street. The only unresolved issue to Jarrett Street was in terms of access and waste collection where an alternative was agreed by the engineering experts albeit, if implemented, did not resolve the issue of the relocation/retention of the café.

81. The key issue in the appeal remained however, the exceedence of the FSR development standard under the LEP considered by the Council to constitute overdevelopment. This exceedence required the applicant to satisfy the pre conditions of clause 4.6 of the LEP before consent could be granted subject to a merit assessment.

82. For the reasons that follow, I am persuaded that the preconditions of cl 4.6 are met and the application could therefore be determined on its merits and ought to be approved.

83. The parties agreed that the objectives of the zone have been met and I concur with this finding. In terms of meeting the objectives of the development standard for FSR, it was common agreement that these were the objectives of cl 4.4A and that the objectives were met other than the objective of demonstrating compliance with the desired future character of the area which was in dispute between the parties.

84. In this regard, I accept the evidence of the applicant that the desired future character cannot be confined to the existing predominantly 2-3 storey character of the older style development along Parramatta Road. It must reasonably include some form of redevelopment including above the existing street wall façade heights, as envisaged by the DCP.

85. There is no LEP height control and the height controls in the DCP envisage some upper level development angled back from the street wall height. The applicant provided evidence of recent development above 3 storeys, and in excess of an FSR of 1.5:1, in the relevant area and examples of these were noted on the Court view.

86. Whilst the Council was critical of the redevelopment examples of FSR non-compliances in the area cited by the applicant, there was no evidence by the Council that the FSR’s quoted were inaccurate or of recent compliant development in the area which met the 1.5:1 FSR standard and were indicative of the desired future character sought by the Council.

80. In releasing the Parramatta Road Corridor Urban Transformation Strategy, the State Government has also flagged its intent in terms of desired future development form along this section of Parramatta Road. If implemented as proposed, the Strategy would result in changes to the character of Parramatta Road and the development would not be incompatible with that character. I accept that in the interim however, this application must be determined under the existing controls not potential future controls.

81. Having said that, I had difficulty visualising the desired future character sought by the Council relative to what exists today. There was evidence from the applicant of approved recent development that exceeded the FSR control albeit the parties both agreed not all of that development reflected desired future character. In the absence of any substantive conclusion on or evidence of the desired future character envisaged by the Council, and notwithstanding the controls, I can only have regard to redevelopment that has been approved and built which informs the changing character of Parramatta Road in the vicinity of the site. This includes recessed development above street wall facades including with non-compliant FSRs and heights.

82. I also note the Council accepts that the application was modified beneficially to retain the ‘bakery’ building as commercial floorspace and reduce the scale and form of the development to Jarrett Street and did not readily dispute the implications of this action in terms of the volume of floorspace this outcome constituted. In my view, this design change supports, at least in part, the floorspace and height sought.

83. The applicant’s evidence that a compliant scheme would have more adverse impacts on neighbours views, outlook and privacy was not disputed by the Council, and these are also relevant considerations. In contrast, the amended application used the depth of the site to provide the residential floorspace in a central tower building, the design of which has been driven by the requirements of the Apartment Design Guide to maximise the amenity for the development and for adjoining development These factors justify variation to the DCP height controls which apply at the Parramatta Road frontage and support the argument for the amount and location of floorspace proposed.

84. On the basis of the evidence before the Court, I am therefore satisfied that meeting the FSR standard is unreasonable or unnecessary in the circumstances and that the development achieves on balance an appropriate environmental outcome having regard to all of the circumstances.

85. The development provides the opportunity for activated frontages to both streets and a significant amount of floorspace is dedicated to this by retaining the bakery building form which results in more commercial floorspace in a configuration that would otherwise not be sought by the applicant or required by the controls.

86. In coming to this conclusion, I am cognisant of the clear intent of the State Government as to the desired future character of the area evidenced through the Parramatta Road Strategy. However, whilst this provides some guidance on possible future character it was not and could not be determinative in justifying the FSR exceedence or height sought.

87. In summary, and having regard to Veloshin and all of the evidence, I am persuaded that the application meets the pre conditions under cl 4.6. The applicant has considered the impacts relative to a compliant scheme and demonstrated that the objectives of the zone and standard are met. Only one of these objectives was in dispute between the parties and none of the objectives require retention of the existing character.

88. I have therefore concluded that the development will be appropriate in its context having regard to both the desired and likely future character. Given the existence of other new development in the area of similar bulk, height and scale setback from Parramatta Road as this application proposes, I find the development utilises the flexibility offered by cl 4.6 to achieve an acceptable outcome justified in the detailed cl 4.6 written request provided. There are therefore sufficient environmental planning grounds to warrant the FSR exceedence sought which is in the public interest as the objectives of the zone and the standard are met.

89. Having determined that approval can and ought be granted under clause 4.6, I now turn to the issue of the relocation of the access and cafe fronting Jarrett Street and to the issues raised by objectors.

90. In terms of the objectors, it was agreed by the parties that a site isolation issue would not arise in terms of 443 Parramatta Road and I agree with this conclusion and that there would not be unreasonable adverse amenity impacts on this or other neighbours. I am also satisfied that all of the other issues raised by the objectors, to the extent that they are relevant, were addressed in the consideration of the issues by the parties and by the Court or will be addressed by conditions of consent.

91. In terms of the waste collection, access and parking reconfiguration, the engineering experts agreed on a design solution to address the Council’s concerns. This would require the relocation of the café. The planning experts agreed that retaining the café through its relocation would be desirable. The applicant offered to amend the application to accommodate these changes, albeit continuing to prefer onstreet waste collection, but in documentation lodged after the hearing argued that the café should be deleted.

92. In this regard however, I agree with the Council that the café fronting Jarrett Street was a component in the applicant’s argument of street activation to justify FSR exceedence. The approval to development is therefore contingent on retaining a café fronting Jarrett Street.

93. I also accept the Council’s argument for not supporting onstreet waste collection in a new development of this scale in terms of the impacts on Jarrett Street and the precedent for future development fronting Jarrett Street. Approval is therefore also contingent on offstreet waste collection in the form supported by the engineering experts with the design solution as agreed by these experts at paragraph 3.1 of their Joint Report (Exhibit 3).

94. In view of my findings that the development is acceptable, subject to the receipt of plans showing the amended onsite waste collection, access and car parking arrangements as agreed by the engineering experts in their Joint Report, and subject to those plans also showing retention of a café on Jarrett Street, there is no reason why consent should not be granted.

Orders

102. The orders of the Court are:

1. The applicant is to file amended plans, both in hard copy and PDF format that reflect the findings, within 14 days.

2. The Council is to file and serve, in Word format, updated conditions of consent amended to reflect the design changes within 14 days of receipt of the amended plans referred to in (1).

3. On receipt of those plans and conditions, final orders will be made in Chambers.

Addendum made on 24 April 2017

103. In accordance with paragraph 101 and the orders in Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1080, amended plans and conditions were filed to comply with the orders. I am satisfied that the final amended plans accord with my findings. The applicant objected to proposed condition 9 and the parties were heard on this matter on 20 April 2017 at which I advised that the Council’s proposed condition 9 would stand. The final orders are:

1. The appeal is upheld.

2. Development Application D/2015744 for the demolition of the majority of the existing building and the construction of a mixed use development at 447-451 Parramatta Road and 32 - 44 Jarrett Street, Leichhardt is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibits A, D and 1, are returned.

__________________

Jenny Smithson

Commissioner of the Court

148103.16 Smithson (C) (163 KB, pdf)

**********

Amendments

26 April 2017 - Addendum 24 April 2017 - Final Orders

08 May 2017 - Amendment made Pursuant to UPCR 36.17 - the final orders made on 24/4/17: Address changed to 32 - 44 Jarrett Street (from 12 Jarrett Street).

08 May 2017 - Date of orders changed to 8 May 2017

Decision last updated: 08 May 2017