Connoisseur Investments Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1181

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181
Hearing dates:	24-25 March 2020; brief submissions 28 May 2020
Date of orders:	17 June 2020
Decision date:	17 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely upon amended plans at Exhibits E, F, G and H subject to costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000.00. (2)   The appeal is upheld. (3)   Development consent is granted to Development Application DA18/1347 for the demolition of existing dwellings and construction of a multi-dwelling housing development of 6 townhouses comprising 4x3-storey, 3 bedroom townhouses and 2x2-storey, 3 bedroom townhouses, and basement parking consisting of double garage and laundry at 46-48 Elouera Road, Cronulla NSW, subject to those conditions at Annexure A. (4)   All exhibits are returned, except for Exhibits D, E, F, G and H, L, M and 7, 8 and 9.
Catchwords:	DEVELOPMENT APPLICATION – R3 medium density residential zone – multi-dwelling housing – landscape setback – flood planning
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015
Cases Cited:	Chami v Lane Cove Council [2015] NSWLEC 1003 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide Building Code of Australia Land and Environment Court of NSW, ‘COVID-19 Pandemic Arrangements Policy’ (March 2020) Simon Leake and Elke Haege, ‘Landscape Soils Handbook’ (2017) Sutherland Shire Development Control Plan 2015 Sutherland Shire Section 7.12 Development Contributions Plan 2016
Category:	Principal judgment
Parties:	Connoisseur Investments Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) J Amy (Solicitor) (Respondent)   Solicitors: Hartley Solicitors (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2019/1520
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), against the deemed refusal by Sutherland Shire Council (the Respondent) of Development Application DA18/1347 for the demolition of existing dwellings and construction of a multi-dwelling housing development of 6 townhouses comprising 4x3-storey, 3 bedroom townhouses and 2x2-storey, 3 bedroom townhouses, and basement parking consisting of double garage and laundry at 46-48 Elouera Road, Cronulla NSW (the site).

2. For clarity, the proposal is for a 3-storey townhouse development fronting Elouera Road comprising 4 apartments, and a 2-storey townhouse development comprising 2 apartments to the rear of the site, over basement car parking and having common circulation pathways, private open space and landscaping.

3. On 6 February 2020, leave was granted to the Applicant to amend the development application by relying upon amended plans and other documents that the Applicant considers to be responsive to the contentions.

Approach to the proceedings

4. The matter was listed for hearing on 25-26 March 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website.

5. Consistent with the Pandemic Policy, the Court arranged a telephone mention with the parties on 24 March 2020, at which I presided, and at which the parties consented to the hearing proceeding by telephone. It was also agreed that cross-examination of the experts would be undertaken in the form of written questions.

6. At the commencement of the hearing, the Applicant sought leave to rely upon amended plans that were said to incorporate amendments arising from the joint expert reports.

7. In response, the Applicant initially relied upon a schedule of changes filed in a Dropbox link that had been sent by email to the Court at 4.02PM the previous day, and to the Respondent. Ms Amy, for the Respondent, initially advised that as Council was in the process of shutting down some of its non-essential services, the Respondent had been unable to obtain advice as to whether the amended plans, received the prior day, resolved any of the contentions.

8. To assist the Respondent and the Court, I granted leave for Mr Eastman, counsel for the Applicant, to provide a summary of the changes on a page-turn basis.

9. Following a recess, the Respondent confirmed that the plans were not opposed, subject to costs thrown away, and the following plans and documents were entered:

• Amended Architectural Plans (marked Exhibit E)

• Amended Landscape Plans (marked Exhibit F)

• Amended Stormwater Plans (marked Exhibit G)

• Amended clause 4.6 written request for FSR (marked Exhibit H)

The site and its context

10. The site is located on the eastern side of Elouera Road, approximately 50m north of its intersection with Hume Road and directly opposite the Cronulla Golf Course Club, club house building and car park.

11. The site is legally described as Lot 4 and Lot 5 in DP11648, having a frontage to Elouera Road of 30.48m, a depth of 42.67m and a total site area of 1300m². The site currently contains a two-storey dwelling house with attached metal carport and detached garage and inground swimming pool at 46 Elouera Road, and a single storey dwelling and double garage at 48 Elouera Road.

Public submissions

12. Public submissions in response to the original development application are contained in Exhibit 1, folios 29-72. Council re-notified the amended plans for which leave was granted, and further public submissions were received, marked Exhibit 8.

13. Mr Matthew Plush, of No 42 Elouera Road, objects to the overshadowing imposed on properties to the south and east, including No 50 Elouera Road in particular. The shadow diagrams are said to be calculated using the incorrect latitude, and to result from excessive size, bulk and height reducing the privacy of surrounding properties.

14. Mr Gustav Burger, of No 44 Elouera Road objects on five grounds:

• Non-compliance with the height standard and objectives of the Sutherland Shire Local Environmental Plan 2015 (SSLEP).

• Visual bulk, and privacy loss impacts from height, bulk and siting of the proposed development.

• Inconsistency with the height and scale of recently approved compliant developments in the vicinity and the desired future scale and character of the locality.

• The suitability of the site for the proposed non-complying development.

• The precedent and public interest considerations of varying the height standard in a zone undergoing redevelopment.

15. Ms Joan Simes, of No 50 Elouera Road objects on eight grounds:

• Excavation may compromise her property.

• With the shallow depth of the water table, underground parking should not have been considered.

• Sandy soil in the area is unstable.

• The proposed development will add to the volume of water in times of flooding.

• Insufficient car parking in the area will be exacerbated by inadequate car parking on the site.

• Raised floor levels in the proposed development will result in occupants looking directly into Ms Simes’ property.

• The 3-storey portion of the development is an overdevelopment of the site not in keeping with existing dwellings and the desired future character of the area.

• The close proximity of the proposal to the northern boundary of Ms Simes’ property gives rise to unacceptable overshadowing and privacy impacts.

16. Mr Peter Butler, of No 43 Kirkwood Road objects on five grounds:

• Non-compliance with the height standard and objectives of the SSLEP.

• Visual bulk, and privacy loss impacts from the height, bulk and siting of the proposed development.

• Inconsistency with the height and scale of recently approved compliant developments in the vicinity and the desired future character of the locality.

• The suitability of the site for the proposed non-complying development.

• The precedent and public interest considerations of varying the height standard in a zone undergoing redevelopment.

17. Ms Kelly Hart, of No 45 Kirkwood Road objects to the overlooking of a pool at the rear of the property, which is currently private. A higher fence, frosted glass, and removal of balconies is requested.

18. In accordance with the Pandemic Policy, instead of giving oral evidence at the onsite view, supplementary objectors’ submissions were reduced to writing in order to assist the Court to understand residents’ concerns that were marked Exhibit 8.

19. Mr Peter Butler, of No 43 Kirkwood Road reiterates the following:

• The proposal is not consistent with the permissible height, or the desired future character as defined by six recent approvals within 200m of the site.

• There are no site constraints that would prevent a compliant development.

• As the development is the first medium density development in the area, it should reflect community expectations as to bulk, scale, height and design and should not compromise the integrity of the development standards.

• Apartments are without cross ventilation, inadequate ceiling heights and no access to planter boxes.

• A photograph annexed to Mr Butler’s submission shows the subject site and notes the height of the proposal above that of the existing dwelling.

20. Mr Benn Hart, of No 45 Kirkwood, stated concerns including:

• Verandahs on the second storey of the proposed development may look into the rear yard.

• The proximity of the proposal to the boundary fence.

• The height of the boundary fence, which should comply to pool fence standards.

• Potential for damage to the large gum in the rear yard.

The issues

21. The parties are agreed that the amended plans for which leave was granted in February 2020 resolve a number of the issues in contention. The further amended plans at [9] assist to further narrow the issues to those which may be summarised as follows:

• The proposal breaches the permissible height.

• The proposal fails to provide an appropriate balance between built form and landscaping, particularly at the front of the site.

• The floor space ratio (FSR) exceeds the maximum permissible floor space.

• The proposal imposes an unacceptable impact on the streetscape, neighbouring properties and the amenity of future residents at the rear of the site and at the front of the site.

• The design of the proposal fails to satisfy controls related to visual and acoustic privacy.

• Insufficient private open space is provided to create a high level of amenity for future occupants.

• Stormwater/flooding are agreed to capable of being resolved by condition.

Expert evidence

22. The Court was assisted by the following experts, who conferred and prepared joint expert reports:

Discipline	Applicant	Respondent
Town planning	Anthony Betros	Neil Harrison
Landscape	Robert Loughman	James Van Breda
Arboriculture	Steven McLoughlin	James Van Breda
Engineering	Pavel Kozarovski Stephen Gray	Jack Slater Grant Rayner

23. As agreed at [5], the experts did not attend Court for the proceedings. Instead, an adjournment was granted on the first day of the hearing in order that questions be prepared for the experts (Exhibit L) who were directed to provide a written response prior to the commencement of the second day of the proceedings.

24. Responses from the Applicant’s experts were marked Exhibit M. Responses from the Respondent’s experts were marked Exhibit 9. In response to questions posed in Exhibit L, Mr Rayner states that trees cannot be located within the front setback as it will affect the performance of the system, which I understand to refer to the stormwater drainage system.

25. Mr Eastman submitted that, as the stormwater experts had not conferred in relation to the trees in their joint report at Exhibit 6, the Court should direct that the stormwater experts confer with the landscape experts following the close of proceedings and provide a supplementary report.

26. While the Respondent preferred the landscape experts to deal with the matter, as I considered the issue related to the interplay between landscape and stormwater drainage, I directed the landscape experts and stormwater experts to confer and provide a report in writing, to be marked Exhibit N when filed. It was filed with the Court on 27 March 2020.

27. The supplementary report at Exhibit N was addressed by the parties in written submissions that were filed with the Court on the following dates:

• Applicant written submissions (AWS), including proposed conditions in reply filed on 27 March 2020

• Respondent written submissions (RWS) filed on 31 March 2020

• Applicant written submissions in reply (AWSR) filed on 1 April 2020

Planning framework

28. The site is located within the R3 Medium Density Residential zone, pursuant to the SSLEP in which multi dwelling housing development is permitted with consent and wherein the objectives of the zone are as follows:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

•  To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

•  To allow development that is of a scale and nature that provides an appropriate transition to adjoining land uses.

29. The Respondent considers the last two objectives of greatest relevance, and to which the proposed development has no regard.

30. It is agreed between the parties that the proposed development exceeds the maximum height of buildings of 9m as set out in cl 4.3 of the SSLEP. The objectives of cl 4.3 provide, relevantly:

4.3   Height of buildings

(1)  The objectives of this clause are as follows—

(a)  to ensure that the scale of buildings—

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

…

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

(e)  to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,

(f)  to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas

31. The allowable floor space ratio (FSR) is 0.7:1 as set out in cl 4.4 of the SSLEP.

32. The Landscape Area Map - Sheet LSA_008A sets out a minimum landscape area of 30% of the site.

33. Clause 6.2 of the SSLEP sets out matters for consideration in relation to earthworks, in the following terms:

6.2   Earthworks

(1)  The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2)  Development consent is required for earthworks unless—

(a)  the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3)  In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the development on the existing and likely amenity and structural integrity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

34. Clause 6.3 of the SSLEP identifies the site as flood prone, and so subject to flood planning. The objectives provide:

(a)  to minimise the flood risk to life and property associated with the use of land,

(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c)  to avoid significant adverse impacts on flood behaviour and the environment.

35. In relation to development on land subject to flood planning, subcl (3) provides that consent must not be granted unless the Court, exercising the powers of the consent authority on appeal, is satisfied that the development:

(a)  is compatible with the flood hazard of the land, and

(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

36. The SSLEP contains provisions related to urban design. Clause 6.16 contains the following relevant general provisions:

6.16   Urban design—general

(1)  In deciding whether to grant development consent for any development, the consent authority must consider the following—

(a)  the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b)  the extent to which any buildings are designed and will be constructed to—

(i)  strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii)  contribute to the desired future character of the locality concerned,

(c)  the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d)  the extent to which the natural environment will be retained or enhanced by the development,

(e)  the extent to which the development will respond to the natural landform of the site of the development,

(f)  the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g)  the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

…

37. Clause 6.17 contains provisions relevant to residential accommodation in the following terms:

6.17   Urban design—residential accommodation

In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following—

…

(b)  the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,

(c)  the extent to which the quality of the streetscape concerned will be improved by the development,

(d)  the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e)  the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,

…

38. Chapter 5 of the Sutherland Shire Development Control Plan 2015 (SSDCP) contains provisions related to multi-dwelling housing in the R3 zone, with the introduction reading, relevantly:

“…

Front setbacks and the streetscape play a major role in establishing the landscape setting of the zone because there is less landscaped area required on each lot.

…”

39. Section 1, Streetscape and building form provides, relevantly:

“…

Streetscape is the urban environment created by the relationship of built elements to the public domain. In the Sutherland Shire, the relationship of the built form to the natural environment is an important consideration. The quality and scale of architecture, landscape elements, natural elements and works in the public domain determine the streetscape character.

…”

40. Objectives 1.1 provide, relevantly, that:

“Ensure that all elements of development visible from the street and public domain make a positive contribution to the streetscape and natural features of the area.

…

3. Ensure development is compatible with the future scale, character and landscape setting of the streetscape, natural setting and scenic quality.

4. Achieve quality architecture in new development through the appropriate composition and articulation of building elements, textures, materials and colours.

…”

41. Section 1, Control 13 is in the following terms:

“Private open space may be provided in the front setback, provided integrated into a well-designed landscape solution which offers resident amenity and contributes to streetscape quality.”

42. Section 2, Building Setbacks provides relevantly, in the chapeau:

“Street Setbacks

Street setbacks establish a consistent front building line and create the proportions of the street. Setbacks contribute to the public domain by enhancing streetscape character and the continuity of street facades. Street setbacks can also be used to enhance the setting for the building providing for landscape areas, entries dwellings and deep soil zones suitable for planting of canopy trees.

…”

43. Objectives 2.1 provide, relevantly:

“…

3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality.

4. Promote residential amenity for residents and neighbours including access to natural light and ventilation and both visual and acoustic privacy.

…”

44. Section 4, Landscaping states in the chapeau:

“Good design recognises that landscape and buildings operate together as an integrated system, resulting in greater aesthetic quality and amenity for the occupants and neighbours and a more attractive public domain. High quality landscape design protects and builds on the site’s natural and cultural features to contribute to a development’s positive relationship to its context and site.

Sutherland Shire’s tree cover, areas of bushland and natural beauty are valued by its residents. Landscape design in new development must recognise that existing trees, areas of habitat and natural systems must be protected and enhanced by the retention of important landscape elements, appropriate planting, bush regeneration and by minimising urban runoff.”

45. Objectives 4.1 provide, relevantly:

“1. Contribute to streetscape character, local habitat and the amenity of the public domain by using indigenous planting and species which complement scale of the development.

2. Provide landscaping treatments which foster attractive outlooks, privacy and private recreation areas of high aesthetic quality.

…”

46. Control 4.2.2 is in the following terms:

“Ground floor courtyards must not extend into the 3m landscape strip along the frontage of development.”

47. Section 5, Building Layout states in the chapeau, relevantly:

“…

Quality private space is critical to achieving good residential amenity. Open space of sufficient area and dimensions to enable recreational and outdoor use, landscaping and service functions is needed for all dwellings.

…”

48. Objectives 5.1 provide, relevantly:

“Ensure outdoor living areas are functional and responsive to the environment and the internal layout of the building.

…”

49. Section 5, Control 6 provides:

“Private open space may be located within the front setback. In such instances a combination of fencing and hedging is to provide privacy for residents while also ensuring that the site makes a positive contribution to the landscaped character of the street. High solid fencing is unacceptable. Residents seeking to rely on the front setback for private open space must accept a lower level of privacy until landscaping matures. Front fencing must be in accordance with the provisions specified in Chapter 34 Ancillary Development: Fences.”

50. Section 5, Control 11 provides:

“Suitable clothes drying facilities shall be provided. They shall not be visible from a public place and shall have access to sunlight.”

51. Section 6, Visual and Acoustic privacy contains objectives that provide, relevantly:

“1. Ensure a high level of amenity by protecting the acoustic and visual privacy of occupants within dwellings and their associated private open spaces.

…

3. Minimise direct overlooking of windows and private open space so that the amenity of neighbours and intended occupants is respected.

…”

Consideration of the issues

52. While the contentions are set out at [21] in the order as they appear in the Amended Statement of Facts and Contentions (Exhibit 2), the Respondent contends that the Court’s power to grant consent is constrained by two matters that are a pre-condition to the exercise of that power, being the contravention of the maximum height of building standard at cl 4.3 of the SSLEP, and the FSR standard at cl 4.4 of the SSLEP.

53. For this reason, I will consider the contentions that constitute a jurisdictional pre-condition first. In the event that I am satisfied that the pre-conditions are met, only then will I consider the remaining issues of merit.

The proposal breaches the height of buildings development standard

54. It is agreed between the parties that the proposed development exceeds the maximum height of buildings of 9m at the roof top of the 3-storey portion of development fronting Elouera Road.

55. The Respondent submits that the written request made pursuant to cl 4.6 of the SSLEP and prepared by Mr Anthony Betros of ABC Planning, dated March 2020 (Exhibit A) does not adequately address the issues required to justify the contravention of the development standard.

56. Clause 4.6 of the SSLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the SSLEP, but that power is subject to conditions.

57. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii));

2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii));

3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and

4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

58. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:

1. the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3); and

2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

59. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act) but should still consider the matters in cl 4.6(5) of the SSLEP (Initial Action at [29]).

60. The written request states the height exceedance ranges between 310mm-520mm at the level of the rooftop to the 3-storey portion of the development fronting Elouera Road, and includes elevations to demonstrate the rear portion of the development is well within the height standard.

61. The written request seeks to demonstrate that compliance with the height standard is unreasonable or unnecessary based on two of the commonly relied upon tests set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827.

62. Firstly, that the objectives of the height standard, set out at [30] are achieved notwithstanding the non-compliance with the standard for the reasons set out below:

1. That the pre-dominant 2-storey form, with recessed third storey setback 4.62m from the boundary, is more urban, and compatible with adjoining development and is consistent with the desired scale and character as set out in the chapeau to Chapter 5 of the SSDCP which seeks well designed townhouse development in the R3 Medium Density Residential zone.

2. Extensive and effective deep soil and other landscaping complement the natural landscape setting, including canopy trees proposed for the front setback that will soften the appearance of the scale of the development.

3. Reasonable daylight access is provided to proposed dwellings, and to adjoining properties which the exceedance does not compromise. While the southern neighbour, at No 50 Elouera Road is overshadowed, west-facing openings and primary open space maintain adequate direct sunlight.

4. The exceedance does not, of itself, result in adverse privacy impacts as it is limited to a portion of the roof slab, and there are limited openings to side boundaries, and substantial side setbacks applied to two separate buildings which also mitigates the visual impact.

63. Secondly, the Applicant maintains that the underlying objective or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable because the exceedance does not result in any greater aural or visual impacts than a complying development, and the Applicant asserts that the exceedance is associated with a compliant FSR.

64. The Respondent submits that the written request is dependent upon the contribution of the canopy trees in the front setback in softening the development, which is a matter of contention (RWS, par 5). While I accept that the Applicant’s written request includes reference to the softening effect of the trees in the front setback as a particular aspect, in my view the primary ground is stated in the following terms:

“The height variation does not raise any inconsistency with the objective which seeks to complement the natural landscape setting noting that the amended proposal provides for extensive and effective deep soil and on-slab landscaping within the site frontage, along the side boundaries, between the buildings and to the rear.”

65. The relevant objective at cl 4.3(1)(a)(iii) of the SSLEP seeks a scale of building that complements any natural landscape setting of the buildings, which is in similar terms to contention 2 pressed by the Respondent as to the balance between built form and landscaping. In considering the exceedance of the height standard, I am satisfied that this is a sufficiently different question to that put in contention 2, which requires consideration of the development as a whole, and not just the particular aspect of the development the subject of the exceedance. For this reason I consider satisfaction in regard to the exceedance is separate and distinct from consideration of contention 2.

66. I am satisfied that the objectives of the development standard are achieved notwithstanding the non-compliance. In arriving at this opinion of satisfaction, I accept that the side setbacks of 4.62m, at Level 2 of the 3-storey portion of the development, permits a stepping in the form when viewed from Elouera Road and so is consistent with the desired scale and character of the street and locality in which the buildings are located. Additionally, the setback serves to minimise the visual impact when viewed from the adjoining properties to the north and south.

67. I also note there are no openings to the side boundaries in the 3-storey portion of the development that exceeds the height standard that could give rise to a loss of privacy to adjoining or nearby properties.

68. Furthermore, those openings from which overlooking could occur are ‘frosted’, as shown in Exhibit E, to a height of 1.5m for all bedrooms on Level 1 and 2, other than those facing Elouera Road.

69. Next, the written request states that there are sufficient environmental planning grounds to justify the contravention of the height standard because:

1. The height variation is associated with the raised ground floor level due to the flood affectation on the site. The height of the portion of the development that exceeds the height standard is 8.6m, when measured from the floor level.

2. The proposal is of a scale that is compatible with the existing and desired future character of the area as contemplated by the zoning and DCP controls where 3 storeys above ground line is permitted.

3. The exceedance is not responsible, of itself, for any adverse external impacts.

70. The site is subject to flood planning, and so I accept that the floor level is required to be elevated which, in my view, is a sufficient environmental planning ground on which to justify a minor exceedance of the height standard that is limited to the roof slab, and does not afford additional floor area, or result in adverse impacts on adjoining or nearby properties.

71. As I am satisfied that the matters in cl 4.6(3)(a) and (b) are adequately addressed, I must consider whether the proposed development is in the public interest for the reasons set out at cl 4.6(4)(a)(ii). I must be directly satisfied as to the matters in cl 4.6(4)(4)(a)(ii), and while I am satisfied that the proposal is consistent with the objectives of the height standard, the Respondent contends that the development is inconsistent with the zone objectives.

72. In particular, the Respondent submits that the proposal is inconsistent with cl 6.16 and cl 6.17 of the SSLEP which renders it incompatible with the following objectives of the zone:

• To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features

• To allow development that is of a scale and nature that provides an appropriate transition to adjoining land uses.

73. The particular aspect of the development the object of the exceedance is at the roof slab. Of itself, in my view, this is neither consistent or inconsistent with the objective to promote a high standard of urban design and residential amenity in a high quality landscape setting. It does not give rise to additional gross floor area (GFA), and does not result in adverse residential amenity. That said, I accept that an exceedance of a height control could give rise to a failure in the scale and nature of development, and its contribution to a transition that is appropriate or not when considered with adjoining land uses.

74. As the wording of the objective relates to adjoining land uses, and not to adjoining character or scale of existing buildings, I consider the proposal is consistent with this objective as the adjoining land uses are also in the R3 Medium Density Residential zone which is a land use with which the scale of the proposal is consistent.

75. For the reasons set out above I am satisfied that the proposed development is consistent with the zone objectives, and is in the public interest for these reasons and as it delivers medium density housing in a zone for which it is intended. Furthermore, as the exceedance is less than 10% of the height standard, I am satisfied that the concurrence of the Secretary can be assumed in accordance with cl 4.6(5) and so the written request made pursuant to cl 4.6 of the SSLEP can be upheld.

The application exceeds the FSR development standard

76. The second pre-condition to the exercise of power is grounded in the Respondent’s contention that the proposed development exceeds the FSR of 0.7:1 applicable to the site in accordance with cl 4.4 of the SSLEP.

77. The Applicant’s primary submission is that the proposal complies with the FSR, as laundries are not habitable rooms and so are excluded from the calculation, and the proper method of accounting for stairs, lifts and services risers has been adopted. In the alternative, the Applicant provides a written request made pursuant to cl 4.6 of the SSLEP prepared by Mr Betros of ABC Planning dated March 2020 (Exhibit H).

78. Mr Harrison, for the Respondent, contends that as the 6 sets of stairs, common walls, lifts and lift wells serve individual townhouses, they cannot be defined as ‘common’ and so are not excluded from the definition of ‘gross floor area’ found in the Dictionary to the SSLEP which is in the following terms:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement—

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

79. In support, the Respondent argues that I should take a purposive approach to the construction of the definition and find that the purpose of the GFA definition and the FSR development standard is to limit the bulk and scale of a proposed development. As the definition specifically excludes certain uses, and laundries are not listed among the uses excluded, then the area of the laundries, which happen to be in the basement, should be included in the GFA.

80. Mr Betros relies upon the Building Code of Australia (BCA) which defines a laundry as a non-habitable room as it is occupied neither frequently or for extended periods (Exhibit 3, par 6.8). However according to the Respondent, definitions in the BCA seek to ensure that buildings are safe and fit for habitation, and that “habitable rooms in the LEP have a different meaning, particularly having regard to the purpose of the FSR control to control bulk of built form” (RWS, par 27).

79. In the absence of an alternate definition in the SSLEP, and on a plain reading of the definition at (b), I agree that a laundry is not defined as, or commonly understood to be, a habitable room and so should be excluded from the calculation of GFA.

80. Additionally, Mr Betros considers it reasonable to adopt the following method for stairs and lifts:

• In relation to stairs, Mr Betros states, in effect, that as stairs traverse levels, it is reasonable and typical to count every alternate stairs flight. Nevertheless, the Applicant has counted 2 of the 3 stairs which exceeds usual practice, and stairs to the basement are excluded.

• In relation to lifts, the lift well is a void except for a floor, albeit one that moves, on any one level and so should be counted once only.

83. The definition of GFA provides for the, presumably total, exclusion of common vertical circulation. However the Applicant does not seek to exclude stairs, lifts or lift wells from the calculation of the FSR, as was the case in Chami v Lane Cove Council [2015] NSWLEC 1003 (RWS, par 33). Instead, the parties dispute the extent to which these areas should be included.

84. Mr Harrison’s view is that all stairs, lifts and lift wells and common walls on all levels should be included in the calculation of GFA (Exhibit 3, par 6.12).

85. As I understand it, Mr Betros seeks to articulate a method by which certain parts of the stairs, lifts and lift wells are to be included in the calculation of GFA, and his method is consistent with the GFA plan at Drawing 2401 (Exhibit E).

86. As GFA is calculated at 1.4m above a floor, and as it excludes voids above a floor at the level of a storey or storey above, I accept the method articulated by Mr Betros in relation to stairs and lifts because, at the level at which GFA is measured, stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted.

87. Further, Mr Harrison considers service risers from the basement to be ‘oversized’, and the Respondent contends that when lifts, stairs, common walls and the oversized service areas are included in the GFA, an FSR of 0.742:1 results (Exhibit 2, p11). However as the definition in the Dictionary to the SSLEP excludes areas used exclusively for mechanical services or ducting, I do not accept the Respondent’s position that the risers are a material consideration in relation to FSR. I accept and adopt the Applicant’s submission on the calculation of the GFA, and the resultant FSR for the site.

88. As I find the FSR complies with cl 4.4 of the SSLEP, I do not need to consider the matters set out in the written request at Exhibit H.

Landscaping and trees

89. The Respondent contends that the proposed development fails to provide an appropriate balance between built form and landscaping. In essence, the contention is pressed on two grounds. Firstly, that the landscape treatment to the front setback is critical to both the amenity of Townhouse 1 and 2 which face west and address Elouera Road. Secondly, because of the overlap of the front landscape setback and the private open space for Townhouse 1 and 2, the private open space is insufficient to enable the proposed and required activities.

90. Mr Van Breda is of the view that the landscape treatment to the front setback will not succeed given the close proximity of a 525mm drainage pipe, a drainage trench for stormwater that will have the effect of ‘aerating’ the subsurface soil, and a subsurface absorption carpet.

91. The Landscape plans (Exhibit F) show five canopy trees in the front setback; three ‘Watergum’ and two ‘Tuckeroo’ which are said by the Applicant to ‘soften the appearance’ of the scale of the development when viewed from Elouera Road (Exhibit A, p7).

92. It is Mr Van Breda’s opinion that the trees may perform well initially, but the crowded subsoil area will limit their height to 3m-3.5m, and any repair works to the drainage infrastructure in the future may require their removal. If so, this would expose Townhouse 1 and 2 to western sun which cannot be described as delivering a “high standard of urban design and residential amenity in a high quality landscape setting” as required by the relevant zone objective, or in terms similarly expressed in cl 6.16 of the SSLEP.

93. Additionally, as the soil profile in the area is a nutrient-poor, dunal sand base, roots will be limited in the upper levels to sustain the trees, which may ‘bonsai’ the growth of the trees (Exhibit N). In support of this view, Mr Van Breda considers the soil volume available to the root ball of trees in the front setback to be inadequate, with the consequence being that the trees will be limited in height (Exhibit 9).

94. In contrast, it is Mr Loughman’s opinion that, with appropriate maintenance, the Watergums are likely to reach 5m in height, and the Tuckeroo’s a height of 7m, which acknowledges the constraining impact of the surrounding infrastructure on the species which can otherwise be expected to achieve 10m in height when unconstrained (Exhibit M).

95. While the available soil volume may be reduced due to the proximity of the drainage infrastructure, Mr Loughman asserts that the volume provided is in accordance with ‘Landscape Soils Handbook’ by Simon Leake and Elke Haege, 2017 (Soils Handbook). In broad terms, the Soils Handbook states that where trees of like species are planted together, it is possible to reduce the total volume of soil per tree as resources are shared, and roots may fuse (Exhibit J).

96. In Exhibit N, Mr Loughman provides images of a street tree at the Kirrawee Hotel development in the Sutherland Shire local government area, undertaken by his practice, which he considers to be a local example of canopy trees planted in a constrained setting that are succeeding. An area of around 1200mm x 1200mm and a soil volume of 1.7m3 is less than the volume proposed for trees on the subject site, and so he is confident that the trees proposed in the front setback will successfully establish.

97. Mr Loughman proposes an additional root barrier, supported by Mr Kozarovski and Mr Rayner, on the eastern side of the trees in the front setback to prevent tree roots growing in to the absorption carpet, but in Mr Kozarovski’s view a root barrier is not required to protect the 525mm dia. drainage pipe which, if properly constructed, would prevent root ingress (Exhibit N).

98. However, to Mr Van Breda, who is a qualified arborist, the proposed root barriers would be 850mm apart and so would limit the area from which the roots can actively draw nutrition and also limit the stabilising roots to a north-south direction only.

99. According to the Applicant, the area is not confined vertically as there is no structure below the proposed location of the trees (AWSR, par 7).

100. While I accept Mr Van Breda’s concerns as to the prospects for the canopy trees in the front setback to achieve height, I give significant weight to the advice published in the Soil Handbook on which the Applicant relies. The advice appears tailored to the particular question of growth in contained environments, and considers multiple trees of the same species in a linear planting arrangement such as the proposed.

101. I also consider the trees, even if limited to a height of between 3-7m to make a meaningful contribution to the streetscape, along with the proposed lower planting in the front setback.

102. I consider the possibility of tree removal in the event of repair to the drainage infrastructure to be sufficiently speculative as to set aside as a concern, and because I consider it likely that, in the event that removal is required, the occupants of Townhouse 1 and 2, and the strata body will have a shared interest in tree replacement.

103. Finally I note the proposed distance between root barriers in the front setback is 1000mm, as depicted in Section A-A, on Drawing LDA-03 Rev E which is commonly held between the parties to have been the result of the expert conferencing that gave rise to Exhibit N, and which is re-produced below:

104. More broadly, in my view, the proposal balances the landscaped front setback desired by the SSDCP with sufficient private open space to ensure a high quality of amenity for the occupants, in the form of elevated terraces over deep soil as a means of accommodating overland flow in the event of flood, to which the site is subject. The elevated terraces to Townhouse 1 and 2 are 2400m wide in accordance with the Apartment Design Guide (ADG), even though the provisions of the ADG do not apply to the development.

105. Given the combination of layered planting and palisade fencing fronting Elouera Road, I do not accept that the impact on the streetscape is, or is likely to be in the future, unacceptable as contended by the Respondent.

106. On balance, I consider the landscape design to the front setback sufficiently achieves the requirements to make a positive contribution to the streetscape (Chapter 5, Objective 1.1 of the SSDCP) while providing opportunities for landscaping and infiltration of stormwater (Objective 2.1(3) of the SSDCP) and contributing to streetscape character, local habitat and the amenity of the public domain by using indigenous planting (Objective 4.1(1) of the SSDCP).

107. To the extent that the landscaped front setback and private open space overlap, it is my view that it operates to the benefit of both spaces for the following reasons:

1. Firstly, Control 4.2.2 of the SSDCP provides that ground floor courtyards must not extend into the 3m landscape strip along the frontage of the development. The elevated terraces to Townhouse 1 and 2 do not encroach in the 3m setback.

2. Secondly, the private open space to Townhouse 1 and 2 exceeds the area of 36m² required by Part 5, Control 5.

3. Thirdly, the Applicant has achieved 57% deep soil planting in the front setback, exceeding the numerical requirement of 50% at Part 4.2 of the SSDCP.

4. Fourthly, Part 5, Control 6 of the SSDCP permits private open space to be located in a front setback subject to the design of landscaping and fencing, which are accepted by the parties to be matters that may be deserving of conditions, or amendments to the plans. In particular, Mr Rayner advises that the low brick planter shown to Elouera Road should be amended to be open and flood compatible.

108. A matter related to the contention, and of interest to Ms Kelly and Mr Benn Hart of No 45 Kirkwood Road is the agreement of the arboricultural experts that the sewer line shown to the rear of the property will not compromise the health of the angophora located in the rear yard of No 45 Kirkwood Road.

Public submissions

109. For the reasons stated at [18], residents who wished to object to the proposed development were required to reduce their concerns to writing. Consideration of the submissions received in response to the development application, and the amended proposal, is given weight under s 4.15 (1)(e) of the EPA Act. In my view, a number of the issues raised in submissions are addressed in the consideration of the contentions outlined above.

110. In relation to the concerns held by Mr Plush, and Ms Simes as to the extent of overshadowing of the proposed development, I consider the provisions contained in the SSDCP at Control 5.2(9) to be satisfied by the proposal. In particular, I accept the Applicant’s submission that at least 10m² of private open space has 3 hours of solar access between 9:00am and 3:00pm at the winter solstice, and that the rear ‘studio’ to No 50 Elouera Road will receive 3 hours of solar access between 9:00am and 3:00pm at the winter solstice. I have no reason to doubt the accuracy of the shadow diagrams.

111. In relation to acoustic concerns held by adjoining residents, I consider the terraces providing private open spaces and living areas that may generate noise to be well setback from side and rear setbacks. In particular, the glazing line to Townhouse 5, which adjoins No 44 Elouera Road to the north, and No 45 Kirkwood Road to the east is more than 10m from the northern boundary. The glazing line to Townhouse 6, adjoining No 50 Elouera Road to the south and No 47 Kirkwood Road is setback in excess of 8m from the southern boundary.

112. More generally, I consider it relevant that there are no window openings shown in walls closest to the boundary adjoining neighbours. In particular, to setbacks to the north, south and east.

113. The application of ‘frosted’ glazing to 1500mm high to all windows that could overlook adjoining and nearby properties provides, in my view, sufficient safeguard to those submissions concerned by the potential loss of privacy.

114. In relation to concerns as to the related matters of the water table, and stability of the soil in the area, I am satisfied that the bore holes drilled to inform the Geotechnical investigations (Exhibit D) suggest the water table is below the floor level of the basement.

115. Finally, Ms Simes holds concerns that the level of flood water could be worsened by the proposed development. After careful consideration of the Flood Impact Assessment prepared by GRC Hydro (marked Exhibit B), which models flows ‘before’ and ‘after’ the development, I am of the view that specific measures in the proposal are likely to reduce the flood levels on neighbouring properties in the event of a flood that occurs on average once every 100 years.

Conclusion

116. The development the subject of the development application is for a 3-storey medium density development in a location zoned for that purpose. As the first such permissible development in the area, it is understandable that it introduces a form and scale that is not the same as the existing single dwellings in the street, but instead I am satisfied that it represents the desired future scale and character in the R3 zone.

117. Potentially adverse impacts arising from this scale are addressed through the positioning of windows, including their avoidance on side boundaries. The rear portion of the proposed development transitions to a similar scale as existing 2-storey buildings in the area, and addresses potential privacy concerns through a combination of increased setbacks, ‘frosted’ glazing and orientation of private open space to mitigate overlooking to adjoining neighbours.

118. I have considered the relevant matters at cl 6.16 of the SSLEP and I conclude that the proposal will enhance the existing character of the streetscape through the contribution it makes to the natural environment, and that it demonstrates an appropriate response to the natural landform of the site which is flood prone.

119. Furthermore, as required by cl 6.17 of the SSLEP, I have considered and I accept that the proposal provides a form of medium density housing desired in certain locations in the Sutherland Shire without imposing adverse or unacceptable impacts on adjoining properties.

120. While I conclude the application warrants the grant of consent, a number of issues arose from the joint expert reports, or in the course of the hearing that are not determinative but are, in my view, matters that would benefit from co-ordination through amendment of the drawings, and not by imposition of a condition alone.

121. That said, the parties are in agreement on the form of conditions of consent contained in the Applicant’s proposed conditions, except for Condition 4A which the Respondent, in submissions filed on 7 April 2020, contests.

122. The Applicant submits that the applicable levy under s 7.12 of the EPA Act should be calculated on the development the subject of the development application which consists of 6 townhouses, and not 8 as originally proposed.

123. According to the Respondent, the levy payable in the Sutherland Shire Section 7.12 Development Contributions Plan 2016 (Contributions Plan) is 1% of the proposed cost of carrying out the development, and as there is no evidence before the Court that the cost of the proposed development is less than that originally proposed, the condition proposed by the Respondent in Exhibit 7 should be preserved.

124. I accept and adopt the Respondent’s submissions as the Contributions Plan, at page 19, sets out the basis of the rate as set out in Contributions Summary, being a maximum rate of 1% for the proposed cost of the development over $200,000.

Directions

125. The Court directs that:

1. Within 14 days of these orders, the Applicant is to file amended plans and other documents that:

1. Amend the stair access to Townhouse 1 in accordance with the agreed position of the planning experts at Exhibit 3, par 7.3.

2. Confirm the location of, and any screening associated with, clothes drying facilities that may be visible from the street.

3. Revise the design for the brick planter to the street frontage in accordance with the advice of Mr Rayner at [106(4)].

4. Update the QS Report to estimate the proposed cost of the development based on the amended plans at [9] for which leave was granted.

5. Liberty to restore is granted on 24 hours’ notice.

2. Within 21 days of these orders, the Respondent is to file final conditions of consent confirming, at Condition 4A, the contributions arising from the proposed cost of the development.

Addendum made on 17 June 2020

126. In accordance with my directions at [125], the Applicant provided to the Court by online communication on 29 April 2020, and filed in hardcopy on 1 May 2020, the following plans and other documents:

• Amended plans in response to directions at [125(1)(a)]-[125(1)(c)]

• Updated QS Report in response to direction [125(1)(d)]

• Updated BASIX certificate

• The Applicant’s proposed draft conditions of consent in word in response to directions at [125]

127. On 12 May 2020, the Respondent advised that the parties had been unable to resolve differences required to be settled in order to agree the final conditions of consent. In particular, the Respondent contested the Applicant’s updated QS Report, and a number of the conditions contained in the Applicant’s proposed conditions of consent relating to landscape treatment.

128. The Court listed the matter for brief submissions via telephone hearing on 28 May 2020.

129. At the commencement of the hearing, the Applicant stated that the parties had reached agreement on the matters the subject of the Respondent’s concerns at [127], and that a further updated QS Report had been filed with the Court on 27 May 2020 that reflected the basis of the agreement on which the contribution under s 7.12 of the EPA Act would be levied.

130. As a result of the agreement, the Court directed that the parties confer to settle the final agreed conditions of consent on this basis, and the quantum of the sum of costs thrown away pursuant to s 8.15(3) of the EPA Act by 4pm, 28 May 2020.

131. The parties complied with the directions at [130] in their entirety on 10 June 2020.

Orders

132. The Court orders that:

1. The Applicant is granted leave to rely upon amended plans at Exhibits E, F, G and H subject to costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000.00.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA18/1347 for the demolition of existing dwellings and construction of a multi-dwelling housing development of 6 townhouses comprising 4x3-storey, 3 bedroom townhouses and 2x2-storey, 3 bedroom townhouses, and basement parking consisting of double garage and laundry at 46-48 Elouera Road, Cronulla NSW, subject to those conditions at Annexure A.

4. All exhibits are returned, except for Exhibits D, E, F, G and H, L, M and 7, 8 and 9.

……………………………

Tim Horton

Commissioner of the Court

Annexure A (303972, pdf)

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Amendments

17 June 2020 - See Addendum for final orders.

Decision last updated: 17 June 2020