Ervin Mahrer & Partners v Strathfield Municipal Council

[2002] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION:	Ervin Mahrer & Partners v Strathfield Municipal Council [2002] NSWLEC 47
PARTIES:	APPLICANT: Ervin Mahrer and Partners RESPONDENT: Strathfield Municipal Council
FILE NUMBER(S):	10088 of 2000
CORAM:	Bignold J
KEY ISSUES:	Development Application :- Whether the proposal satisfactorily complies with Urban Design Considerations for development within the Mixed Use Zone-Whether the proposal satisfactorily complies with the requirements of the DCP20-Impact on heritage item
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 79C
CASES CITED:	Ervin Mahrer and Partners v Strathfield Municipal Council (2001) 115 LGERA 259; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	10-14/12/01, 17/12/01
DATE OF JUDGMENT:	04/05/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr M J Astill, Solicitor, with Mr C R Ireland, Solicitor SOLICITORS Blake Dawson Waldron RESPONDENT: Mr D J Baird, Solicitor, with Ms J Warchope, Solicitor SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT:

IN THE LAND AND

Matter No. 10088 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

5 April 2002

ERVIN MAHRER & PARTNERS

Applicant

v

STRATHFIELD MUNICIPAL COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979, (the EP&A Act) against the deemed refusal by Strathfield Municipal Council (the Council) of an amended development application to erect a mixed residential and commercial development of five buildings with 272 dwelling units and underground car parking at Nos 55-67, 71-77 Parramatta Road and Nos 14-24 Powell Street, Homebush (the appeal site).

2. Shortly before the commencement of the hearing, the Council determined the amended application by refusing consent for multitudinous reasons which effectively adopted the issues raised in the Council’s Statement of Issues filed in these proceedings on 7 September 2001.

3. In hearing this appeal, I have had the assistance of Commissioner Watts pursuant to s 37(1) of the Land and Environment Court Act 1979.
B. THE APPEAL SITE

4. The appeal site is situated on the northern side of Parramatta Road to the south of Powell Street approximately 200 m north of Homebush Railway Station. It has an area of 7,883.2 m2 and frontages to Parramatta Road of 20 m and 57.5 m and Powell Street of 65 m, is generally level at the two street frontages, although Parramatta Road itself is falling to the west and Powell Street is rising toward the east. The appeal site is shown on the map annexed hereto and marked “A” in its immediate context comprising the block bounded by Parramatta Road, Powell Street and Underwood Street.

5. The appeal site, which amalgamates a number of adjoining lots has been held by the one owner for the past decade, during which it has made a number of development proposals for the site, but has not obtained any development consent.

6. The appeal site falls from the north-east down to the south-west corner. The highest point on the land is near the north-western corner of the “Niterider Theatre Restaurant” (a heritage Item) occupying No 55 – 57 Parramatta Road, from where the land then falls in several directions. The land is relatively flat with a maximum fall of about 2.8 m towards the south-west corner.

7. There is a single driveway at the western end of the site at Parramatta Road and two existing driveways onto the land at Powell Street.

8. Erected on the appeal site is:
· a disused theatre on Parramatta Road opposite the intersection with Knight Street;
· a disused single storey timber building toward the western end of the site fronting Parramatta Road with a driveway crossover at Parramatta Road.

9. The remainder of the appeal site is vacant but fenced with large asphalt covered area having access to Powell Street.

10. To the north of the appeal site is Powell Street and the grassed bank to the elevated M4 Motorway (some 3.5 m above the level of Powell Street) and only some 40 m distant from the appeal site.

11. To the east in Parramatta Road at Nos 45-53 are a number of two-storey buildings of either residential, commercial, retail, industrial or restaurant uses and Nos 2-10 Powell Street which were single storey disused cottages, now demolished, and No 12 Powell Street which is a single storey fibro and timber dwelling-house and on the eastern side of Powell Street, a single storey motor cycle showroom;

12. To the south across Parramatta Road at Nos 62-96 are a number of single and two storey commercial/retail/industrial/hotel/cafe uses, a number of which are vacant.

13. To the west are also a number of similar single and two storey commercial, car yard and residential buildings, as well as a two-storey hotel on the western side of Underwood Street, some of which are vacant.

14. No 69 Parramatta Road is surrounded on three sides by the appeal site. Erected on this property is a part one-storey and part two-storey commercial building with a driveway down the eastern side providing access from Parramatta Road to a car parking area at the rear.

15. The immediate context of the development site is of existing ribbon development, generally run down in appearance (except that further west along Parramatta Road there is an abundance of car sales developments which are not run down). The cause of the run down condition probably is the construction of the M4 in the late 1970’s running parallel to Parramatta Road and effectively cutting off this Parramatta Road Corridor from the suburban development situate to the north of the M4.
C. RELEVANT PLANNING CONTROLS APPLICABLE TO THE APPEAL SITE

16. The relevant planning controls are contained in the Strathfield Planning Scheme Ordinance, as amended by the Strathfield Local Environmental Plan No 79 (the LEP).

17. Under the provisions of the LEP, the appeal site is included in the “Mixed Use Zone No 10” . That Zone was introduced into the LEP by Strathfield Local Environmental Plan No 79 which came into force on 4 February 2000 and embraces land fronting Parramatta Road (north and south) for a linear distance of some 2 km which over recent years has come to be known as the Parramatta Road Corridor Area. The “Mixed Use” Zone permits the following development:-

Column 2 Without development consent -

Nil

Column 4 Only with development consent -

Any purpose other than those permitted by Column 2 or prohibited by Column 5

Column 5 Prohibited -

Boarding houses; brothels; bulk stores; bus depots; caravan parks; extractive industries; gas holders; generating works; industries (other than light industries); junk yards; liquid fuel depots; mines; offensive or hazardous industries; roadside stalls; sawmills; stock and sale yards; transport terminals.

18. It is common ground that the proposed development is a permissible form of development on the appeal site. It only became so with the making of LEP 79. That fact explains why the original development application sought consent for “serviced apartments” development but that application was amended to “residential flat development” after LEP 79 came into force.

19. Strathfield Local Environmental Plan No 79 principally applies to the land included in the Mixed Use Zone. It included three particular clauses (41D, 41E and 41F) relating exclusively to development within that Zone.

20. It also contained provisions relating to residential zones in the municipality implementing key parts of the Council’s Housing Strategy to increase residential densities and housing choices.

21. The express aims of the Plan recognise the special character and function of the Parramatta Road Corridor, create the Mixed Use Zone and “enable the Council to prepare development control plans for the purpose of providing additional details, controls and guidelines, including details of preferred types of development in different parts of the area of Strathfield to which this plan applies”: cl 2(f).

22. Clauses 41D, 41E and 41F are in the following terms:

Clause 41D - Development within the Mixed Use Zone

(1) The Council shall not grant consent to development on land within Zone No. 10 for the purposes of shops unless it is satisfied:-


(a) suitable land for the development is not available in any nearby business centre; and

(b) the proposed development will not detrimentally affect the viability of any business centre within the locality and the development is unlikely to encourage illegal parking or dangerous traffic movements on Parramatta Road.


(2) Subject to subclause (3), the Council shall not grant consent to development on land within Zone No. 10 for the purpose of a supermarket, department store, discount department store, clothing or footwear shop or small electrical appliances shop or for any other purpose, which the Council considers, would be more appropriately located in a business centre.

(3) This clause does not apply to -


(a) the retailing on land of goods produced or stored on the same land where such retailing is secondary and ancillary to a manufacturing or storage use; or

(b) a small supermarket which, in the opinion of the Council, is primarily intended to serve local residents and has a floor area consistent with that function.


Clause 41E - Traffic and Parking within the Mixed Use Zone

(1) Subject to subclause (2), the Council shall not grant consent to any development within Zone No. 10 unless it is satisfied that-


(a) the proposed development will be capable of accommodating its parking and servicing needs and associated vehicle movements on the land on which the development is to be carried out; and

(b) the proposed development will not adversely affect any planned improvements to Parramatta Road or any associated local area traffic management schemes; and

(c) the proposed development is unlikely to generate increased traffic movements, particularly by heavy vehicles, in any residential street in the vicinity; and

(d) the particular traffic generating characteristics of the proposed development will be unlikely to cause any significant or cumulative change to the level of performance and safety of Parramatta Road; and

(e) the proposed development will not involve the creation of additional vehicle access points to Parramatta Road.


(2) The Council may grant consent to development on land within Zone No. 10 which does not satisfy any or one of the criteria set out in subclause (1) where it is satisfied that the traffic, servicing, access and parking measures proposed in, or in association with, the development are likely to create a net improvement over existing actual or potential conditions.

(3) As a condition of a consent referred to in this clause, the Council may require the consolidation of allotments of land within Zone No 10 prior to any increased intensity of development taking place, so as to enable improvements to access, servicing and parking arrangements.

Clause 41F -Urban Design Considerations within the Mixed Use Zone

The Council shall not grant consent to development on land within Zone No. 10 until the Council is satisfied that an assessment has been made of the extent to which the development will:


(a) complement significant elements of the built environment in the vicinity of the land; and

(b) improve the appearance of the built environment in the vicinity of the land, particularly in the relationship of buildings to each other and from the perspective of motorists, pedestrians and employees; and

(c) complement established landscaping themes or landscaping themes that the Council considers to be desirable; and

(d) enable the removal of unsightly or visually intrusive structures.

23. As earlier mentioned, part of the appeal site includes an heritage item situate at Nos 55-57 Parramatta Road and known as the “Niterider Theatre Restaurant”. Clauses 59A-59F of the LEP contain detailed heritage provisions which must be considered in the assessment of this development application in terms of its impact of partially demolishing the “Niterider” (cl 59A) and its impact of carrying out development elsewhere on the appeal site being “in the vicinity of the heritage item” (cl 59B).

24. As contemplated by cl 2(f) of LEP No 79, there also applies to the Mixed Use Zone a Development Control Plan known as “Strathfield Development Control Plan 20 – Guidelines for the Siting, Design and Erection of development within the Parramatta Road Corridor Area” (DCP No 20).

25. In fact, DCP20 was adopted by the Council on 20 September 1999 in anticipation of the making of LEP No 79. It came into force on 9 February 2000 a few days after LEP No 79 came into force. Indeed, the LEP and DCP 20 were processed together and their origins can be traced to a number of planning studies and the Council’s Housing Strategy undertaken since the mid 1990s.

26. The appeal site is included within the Parramatta Road Corridor being located towards the eastern end of that corridor in an area known as the “Eastern Sector” in close proximity to Homebush Railway Station.

27. DCP 20 contains detailed provisions dealing with the following subjects:

Clause 1.0 –Introduction;

Clause 2.1 -Site Analysis;

Clause 2.2 -Building Footprint;

Clause 2.3 -Building Height;

Clause 2.4 -Built Form;

Clause 2.5 -Roof Form;

Clause 2.6 -Facade Composition;

Clause 2.7 -Heritage and Conservation;

Clause 2.8 -Visual and Acoustic Privacy;

Clause 2.9 -Private Open Space;

Clause 2.10 -Ecologically Sustainable Development Design;

Clause 2.11- Stormwater, Sewerage and Drainage;

Clause 2.12 -Access for People with Mobility Disabilities;

Clause 2.13 -Vehicular Access and Car Parking;

Clause 2.14 -Site facilities and Services;

28. DCP 20 requires all applications to be based on a site analysis, which considers the existing characteristics, opportunities and constraints of the site and surrounding area. This process is designed to enable designs to respond in a sensitive manner to their context.

29. DCP20 requires developments to satisfy the following design principles:
1. Compliance with height limits.
2. Compatibility with the predominant height, bulk, scale and future character of the locality.
3. Consistency with Parramatta Road Corridor Masterplan.
4. Height, scale, character and external detailing of any development to be compatible with any adjoining heritage item.
5. Development not to adversely affect the amenity of any existing residential development in terms of overshadowing, privacy, excess noise, loss of view or otherwise.

30. In terms of DCP 20, the appeal site is subject to the following maximum building heights and form:
· Parramatta Road frontage: 6 storeys
· Powell Street: 3 storeys, with projecting fingers oriented north- south between the street frontage buildings up to 6 storeys

31. DCP20 adopts a Masterplan which delineates the following requisite features of any redevelopments—
1. Buildings to form a hard edge to the road frontages, with finger projections and open squares towards the centre of blocks.
2. Buildings to have an average width of 12 m (excluding balconies).
3. Provision of an accessway along the length of the block at its mid-section linking Powell Street to Underwood Road.
4. At least 35% of the site area to be retained as deep soil landscaped area. This area is to be free of basement parking structures and the like and is to allow the planting of large trees.
D. THE DEVELOPMENT PROPOSAL AND ITS HISTORY

32. The original development application No 9900/139 was lodged with the Council on 19 December 1999. The amended plans, (Series B Plans – Exhibit A Drawing Nos SK-01b TO SK-14B) that are now before the Court, were lodged with the Council in December 2000, and leave was granted by the Court on 29 June 2001 permitting the Applicant to rely upon these amended plans. (See Ervin Mahrer and Partners v Strathfield Municipal Council (2001) 115 LGERA 259)

33. The amended development application proposes to erect a mixed development comprising five buildings with ancillary car parking, details of which are as follows—

(i) Building 1 at Nos 59-67, Parramatta Road (10 storeys) comprising—

· 479 m2 of commercial floor space;

· 62 dwellings

· basement car parking having access via Powell Street

(ii) Building 2 at Nos 55 – 57 Parramatta Road (part 4- storeys and part 5-storeys) comprising—

· refurbishment of the heritage item (ie “Niterider”)

· 664 m2 of commercial floor space -

· 24 dwellings

(iii) Building 3 at Nos 14 - 24 Powell Street (part 5 storeys and part 12 storey tower) comprising

· 114 dwellings

· basement car parking with vehicular access at its eastern end.

(iv) Building 4 at the western boundary and behind part of Building 3 (7 storeys) comprising

· 35 dwellings

· basement car parking having access to Powell Street.

(v) Building 5 at Nos 71 – 77 Parramatta Road (6 storeys) comprising

· 115 m2 of commercial floor space;

· 37 dwellings

· basement car parking for 49 vehicles having access to Parramatta Road.

34. In summary, the total amount of commercial space is 1,258 m2 and the total number of dwellings is 272. The large underground car park under Buildings 1, 3 & 4 contains 370 car spaces.

35. A copy of the site plan showing the respective locations on the appeal site of the five proposed buildings is annexed hereto and marked “B”.
E. PUBLIC NOTIFICATION OF PROPOSAL

36. The amended development application was publicly notified from 25 to 29 August 2001. Two submissions were received from the adjoining owners of Nos 21 – 38 Powell Street, NSW Teachers Credit Union, and the owner of No 69 Parramatta Road, flanked on 3 sides by the proposed development, Mr McMonigal.

37. Issues raised in these two submissions included:
· Height and scale of proposed buildings, gross over development in relation to other buildings in the area
· Non-compliances with the height controls of DCP 20
· Site consolidation and isolation of 69 Parramatta Road which is contrary to the objects of the EPA Act and Masterplan principles of DCP 20
· Traffic implications to Underwood Road/Powell Street intersection
· Impacts during construction
· No site dilapidation reports
· Seek to remove reciprocal ROW from 69 Parramatta Road
· Overdevelopment of the site
F. THE ISSUES RAISED BY THE COUNCIL

38. On 7 September 2001 the Respondent Council filed its Statement of Issues raising the following issues—

1. Whether there is insufficient information accompanying the application to enable a proper assessment of the development, particularly in terms of:

Strathfield Planning Scheme Ordinance ("the SPSO");

(i) ramp details (including spot RLs) to assess the entry and exit driveways to Parramatta Road and Powell Street: clause 32(b )(i) of the SPSO;

(ii) (ii) the location and provision of, loading docks for service vehicles to all buildings 5: clause 32(b)(iv) of the SPSO;

(iii) commercial access for Building 5;

(iv) the location and queuing effects of roller shutters and boom gates;

(v) lack of information about boundary fire source features and protected openings in vicinity of such fire source features;

(vi) inadequate widths of travel in Buildings 1 and 2

(vii) inadequate details about windows to enable complete assessment of views, privacy issues, solar access;

(viii) lack of illustration of relationship of proposed development to neighbouring buildings including visual and acoustic privacy interaction, fire source issues, amenity and solar access (particularly to/from 69 Parramatta Road, 12 Powell Street and adjoining developments);

(ix) inadequate detail of facade composition, including details of materials or contextual information; and

(x) lack of information about massing and design information, particularly in context of adjoining development;

(xi) lack of a complete assessment as to the ability of the proposed development to comply with the provisions of the Building Code of Australia ("BCA ").

2. Whether the proposed development is inconsistent with clause 32(a) of the Strathfield Planning Scheme Ordinance ("the SPSO") by reason of the proposed development creating an unacceptable aesthetic appearance when viewed from Parramatta Road.

3. Whether the proposed development is inconsistent with clause 32(b) of the SPSO by reason of the proposed development having a likelihood of increasing vehicular traffic on the roads in its vicinity (both Parramatta Road and Powell Street) and:

b. that inadequate space has been provided within the development for the loading and unloading of vehicles and for the picking up and setting down of passengers.

5. Whether the Court, as consent authority is satisfied pursuant to clause 41 E(1) of the SPSO that:

a. the development is capable of accommodating servicing needs and associated vehicle movements on the land, particularly garbage vehicles, servicing and commercial uses and emergency services vehicles: clause 4IE(1)(a).

b. the development is unlikely to generate increased traffic movements in residential streets in the vicinity and particularly, Powell Street and Underwood Road.

c. the development will not cause a significant or cumulative change to the level of performance and safety of Parramatta Road by reason of vehicular access from Building 5 to Parramatta Road.

7. Whether the Court as consent authority is unable to grant consent to the proposed development by reason that:

a. an assessment has not been made of the extent to which the development will complement significant elements of the built environment in the vicinity of the land, including the Horse and Jockey Hotel: clause 41F(1)(a) of the SPSO;

b. an assessment has not been made of the improvement (if any) to the appearance of the built environment from the perspective of motorists, pedestrians and employees: clause 4IF(1)(b) of the SPSO;

c. an assessment has not been made of the extent to which the development will complement landscaping themes that the Respondent considers desirable, particularly landscaping requirements contained within DCP 20: clause 41F(1)(c) of the SPSO.

8. Whether the proposed development is inconsistent with clause 2.7 of DCP 20 and should be refused having regard to the Niterider Theatre Restaurant heritage item by reason of:

a. the demolition and alterations destroying the fabric of the heritage item;

b. the demolition and alterations being inconsistent with retention of existing form and materials of the door and window openings;

c. the demolition and alterations being inconsistent with retaining the historical significance of the item in terms of its use as a cinema;

d. the demolition and alterations destroying the large volume of internal space of the heritage item;

e. insufficient separation between the existing heritage item and the proposed towers;

f. the only remnant of the original building to remain following the proposed development would be the facade;

g. intrusion of the proposed development on the significant urban conservation node at the intersection of Knight Street and Parramatta Road;

h. the incompatibility of the proposed development with retention of the significance of the heritage item, and lack of any mitigation of negative impacts on the heritage item.

9. Whether the proposed development is contrary to the Design Principles contained in Clause 2.1 of DCP 20, and particularly:

a. that the development is inconsistent with the Masterplan for the Parramatta Road Corridor area;

b. in terms of the building footprints, provision of mid-block access lane and building heights envisaged in DCP 20.

10. Whether the proposed development is inconsistent with clause 2.2 of DCP 20 by reason of the proposed building footprints not complying with the footprints required by Figure 8.

11. Whether the proposed development is inconsistent with Sydney Water's requirements for building setbacks from any easement or public sewer main: clause 2.2 of DCP 20.

12. Whether the proposed development is unacceptable having regard to the maximum building heights specified in Clause 2.3 of DCP 20, which permit a maximum of 6 storeys to Parramatta Road where 10 storeys are proposed, and a maximum of 3 storeys to Powell Street where between 5 and 12 storeys are proposed.

13. Whether the proposed development is inconsistent with clause 2.4 of DCP 20 by reason of its non-compliance with Figure 18 of DCP 20, particularly having regard to:
(a) the maximum of 6 storey residential development behind development facing onto Parramatta Road;

(b) the requirement of deep soil landscaping behind development facing onto Parramatta Road;

(c) daylight and natural ventilation to carparks,

14. Whether the proposed development is inconsistent with clause 2.5 of DCP 20 by reason of the development not:

a. generating an interesting skyline;

b. enhancing views from adjoining developments;

and particularly the simple roof forms to Buildings 1 and 3 which contribute to an excessive repetitive mass.

15. Whether the proposed development is inconsistent with clause 41F of SPSO and clause 2.6 of DCP 20 by reason of:

a. a fundamentally inappropriate design approach having regard to:

(i) the basic structure of the proposed development as an internalised fortress atop a podium;

(ii) overdevelopment of the site ( evidencing an intention to maximise the yield of the site with little regard to town planning and heritage considerations);

(iii) the restriction of desirable normal urban access and circulation patterns; and

(iv) the failure to incorporate properties at 69 Parramatta Road and 12 Powell Street.

b. the destruction of the fine grain and pedestrian scale of the surrounding area;

c. presenting a development proposal that undermines the planning intention presented by DCP 20 and in turn undermining proper and orderly development under the Environmental Planning and Assessment Act 1979.

16. Whether the proposed development is inconsistent with clause 2.8 of DCP 20 by reason of:

a. the proposed development resulting in unreasonable overlooking towards the adjacent property at 12 Powell Street;

b. the acoustic privacy of all units being unacceptable having regard to the adjacent dwellings and the layout of units in Buildings I and 2 and along the Powell Street frontage of Building 3;

c. the acoustic environment of units within the tower element of Building 3, given their proximity to the M4 Motorway.

16. Whether the development is inadequate having regard to clause 2.9 of DCP 20 by reason of:

a. the requirement that at least 35% of the site area be free from any structure, including basement parking areas to be available for planting of large trees;

b. whether the internal Courtyard will contain and sustain large trees;

c. inadequate areas of private open space to units including inadequate balcony sizes and the placement of balconies on the south side of buildings;

d. the internal Courtyard having limited solar access, pedestrian access, privacy, general amenity and resident convenience.

18. Whether inadequate solar access is available to units within the development in accordance with Clause 2.10.1 of DCP 20, particularly units within Buildings 1, 2, 4 and 5 and south facing units within the development.

19. Whether the proposed development maintains inadequate solar access to the approved development at 2-10 Powell Street in accordance with Clause 2.10.1 of DCP 20.

20. Whether the proposed development is inconsistent with clause 2.10.2 of DCP 20 by reason of natural ventilation not being provided to the proposed buildings.

21. Whether the development is inconsistent with clause 2.13 of DCP 20 and AS 2890.1 - 1993 and is unacceptable having regard to the overall car-park design, in particular:

(m) provision of car wash bays.

23. Whether the isolation of the properties at 69 Parramatta Road and 12 Powell Street, Homebush, as a result of the proposed development, is unacceptable, having regard to:

(a) the objects of the Environmental Planning and Assessment Act 1979, particularly the promotion and co-ordination of the orderly and economic use and development of land, arid

(b) the impact of the proposal on the redevelopment potential of both sites and the Masterplan for the Parramatta Road Corridor as set out in Development Control Plan 20.

24. Whether the Court, as consent authority is satisfied that the proposed development is capable of complying with the BCA having regard to section 80A(11) of the EPA Act and clause 78A of the Environmental Planning and Assessment Regulation 1979 and in particular:

a. egress travel distances in relation to:

(i) the basement car park;

(ii) the ground floor of Building 2;

(iii) the residential floors of Building 2;

(iv) a stair discontinuity in Building 2

(v) egress stair at northern end of Building 4, egressing through another building;

m. physical connection of two separate fire-isolated stairs serving Building 4.

25. Issues raised by objectors.

39. The Statement of Issues essentially repeated the Issues which had been raised against the Applicant’s original proposal (except for those few issues which have been crossed out).

40. From this staggering welter of issues, there emerged four fundamental issues, namely—

(i) whether the proposal’s non-compliance with the requirements of DCP 20 is justified or is otherwise acceptable;

(ii) whether the urban design attributes of the proposed development are acceptable;

(iii) whether the proposal’s impacts on the heritage item, the “Niterider” are acceptable;

(iv) whether the proposal is acceptable in its impacts on two separate isolated adjoining properties, No 69 Parramatta Road and No 12 Powell Street.
G. THE HEARING

41. At the hearing, the Court received written and/or oral evidence on behalf of the Council from the following witnesses:
· Ms S Haetsch, consultant town planner
· Professor Weirick, consultant landscape architect
· Professor Droege, urban designer
· Mr P Conroy, building consultant
· Mr C McLaren, traffic consultant
· Mr S Cooper, acoustic engineer,
· Mr L Tropman, heritage consultant, and
· Mr G McMonigal, objector who owns No 69 Parramatta Road.

42. On behalf of the Applicant written or oral evidence was given by the following witnesses:
· Mr J Nangle, consultant town planner
· Mr P Rossello, building consultant
· Mr R Staas, heritage consultant
· Mr M Colston, traffic engineer
· Mr G Burton, traffic engineer
· Mr K Tara, traffic engineer
· Mr J Andrew, acoustic engineer
· Mr P Glass, landscape architect.

43. A site inspection was taken in company with the parties on 13 December 2001 which involved a detailed view of the appeal site and the Parramatta Road Corridor (to which DCP 20 applies), together with an inspection of the interior of the “Niterider”.

44. Although there was an abundance of expert evidence covering a wide range of disciplines, I shall confine my consideration to the evidence relevant to the four principal issues which I have earlier identified.
H. THE PROPOSAL’S NON-COMPLIANCE WITH DCP 20

45. The Applicant adopted a dual approach to the question of the non-compliance of the proposed development with relevant requirements of DCP 20. Firstly, in reliance upon the opinions of its Planning Consultant, Mr J Nangle, it submitted that the proposed development generally satisfied the intent of objectives of the DCP and that to the extent that it did not do so, the relevant variations from the requirements were reasonable and justified.

46. Secondly, it submitted that in particular, the height controls imposed by the DCP should not be applied in the present case because they were arbitrary or otherwise lacked ultimate planning justification.

47. I shall consider these submissions in reverse order.

48. In particular, it was submitted that the reduction in development densities or potential of re-development sites achieved by an across the board reduction in the maximum heights of buildings to be erected on Parramatta Road frontage lands (9 storeys reduced to 6 storeys) and of buildings to be erected on Powell Street frontage lands (4 storeys reduced to 3 storeys) was an arbitrary planning decision of the Council which was not reasonably based or otherwise justified. In this respect, the Applicant led evidence criticising as overly conservative the findings and recommendations of the Traffic Study undertaken in respect of the Parramatta Road Corridor Area by the Council’s Consultant Traffic Engineers (McLaren Traffic Engineering) and the Council’s responses to those findings and recommendations.

49. The Council’s consideration of the Traffic Study is recorded in its adoption of the report submitted to an extraordinary Meeting of the Council held on 20 September 1999 by its Strategic Planner Mr Mark Peppering. (It was at this meeting that the Council adopted DCP 20 and decided to proceed with LEP 79).)

50. That Report had included the following relevant content concerning recommended changes to the draft DCP 20—

The major change to the DCP however, has been the need to vary building heights. In light of Council’s decision not to retain the proposed link road between Station Street and Elva Street in the DCP, a supplementary Traffic Study for the Corridor area was prepared so as to determine whether the dwelling densities needed to be revised. A copy of the Supplementary Traffic Study minus the figures is attached .

The Traffic Consultant has concluded that following Council’s decision not to retain the link road proposal as a future road linkage to the south of the railway line, densities within the Parramatta Road Corridor Area east of the Markets must be reduced to compensate. The consultant has indicated that the potential number of dwelling units needs to be reduced by between 700 and 800.

In Council’s Supplementary Housing Strategy submitted to DUAP, it was estimated that the redevelopment of the area had a potential yield of approximately 4000 additional dwellings. The draft DCP for the Parramatta Road Corridor Area prepared by Consultants provided for an estimated potential increase of 3956 dwellings. Following the public exhibition this was revised up to 4405 due to alterations to building envelopes and development opportunities in the Columbia Lane area and along Loftus Crescent between Subway Lane and Crane Street.

As stated earlier, the Traffic Consultant has indicated that given the existing traffic constraints within the area, a reduction of between 700 and 800 dwellings is required to satisfy future traffic demands. Consequently, the revised potential dwelling increase for the Parramatta Road Corridor is limited to a maximum of 3600 dwellings or 400 less than originally estimated.

In real terms and as a percentage of the potential across the whole of the Strathfield Municipality which was estimated to be 6 351, a reduction of 400 dwellings is not substantial and therefore not expected to be questioned by DUAP. Council has, by undertaking a supplementary Traffic Study, justified on traffic grounds what the maximum development potential of the area can ultimately be.

The fairest way of reducing the required net number of dwellings units is best achieved by reducing the heights across the whole area east of the Markets. The optimum number of dwellings can be achieved by the following actions

1. Reducing the four storey buildings to three storeys

2. Reducing the nine storey buildings to a combination of six and seven storeys

3. Reducing a couple of the twelve storey buildings to nine storeys

51. The McLaren Traffic Study had been commissioned by the Council in August 1999 following its decision not to proceed with a suggested link road between Station Street (north of the railway line) and Elva Street (south of the railway line). The Study was asked to review the traffic and parking study for the Parramatta Road Corridor Area in view of the Council’s decision not to proceed with the North/South link. Having estimated a traffic generation potential of 1800 vehicle trips per hour during morning and afternoon commuter peak periods for the fully developed potential of the Parramatta Road Corridor Area (estimated at 4405 new dwellings) and assigned the journey to work distribution of that traffic (according to 1996 journey to work data) the Study identified as a “critical localised road system constraint” Subway Lane and Bridge Street linking with The Crescent (situate south of the railway line). Thereafter the study examines the “mid block capacity” of The Crescent as currently trafficked in order to determine its “spare capacity” to accommodate increased traffic usage by the traffic generated by the fully developed Parramatta Road Corridor Area concluding that there was a spare capacity of 110 vehicles per hour in peak traffic. Next, the Study estimates traffic generation from the fully developed Parramatta Road Corridor Study Area travelling eastbound in the Crescent in peak traffic hour at 143 vehicles per hour exceeding the estimated spare capacity by 33 vehicles per hour.

52. The Study then concludes:

In view of the foregoing, it is evident that a reduction of 33 vehicle trips to the south is required. This can be achieved in a number of different ways; some suggestions are to:

q Remove Block 1 from the strategy, until the future of the bus/rail interchange and rezoning of the Arnotts site is better known (total 655 units).

q Remove Blocks 5 & 6 from the strategy and 52 units from Blocks 2 to 4 (total 702 units).

q Remove Blocks 13 to 17 from the strategy (total 559 units).

q Reduce intensity across each Block as follows:

· A total of 151 units from Block 1

· A total of 159 units from Blocks 2 to 5 inclusive.

· A total of 129 units from Block 6.

· A total of 246 units from Blocks 7 to 12 inclusive.

· A total of 131 units from Blocks 13 to 17 inclusive.

· The above totals 816 units.

Any of the above suggestions are feasible, however, in our view the preferred suggestion is to remove Block 1 from the strategy due to the unknown factors associated with the future bus/rail interchange and the Arnotts site.

Council officers have reviewed the above four options and favour the last suggestion whereby development intensity is reduced across each of the identified blocks (ie Block Nos 1 to 17 inclusive). Further discussions between Council officers and Hill Thallis representatives resulted in an achievable reduction of 700 units (rather than the suggested reduction of 816 units) as a consequence of economic and building structure considerations.

53. It is apparent that the Council’s decision, earlier mentioned, adopted the last-mentioned of the four suggested means of implementing the recommendation contained in the Traffic Study. In this respect it is to be noted that the appeal site is contained within Block 6 in the 22 Blocks designated in the Traffic Study which blocks comprise the whole of the Parramatta Road Corridor Area.

54. In his report on traffic and parking implications of the proposed development (Exhibit Q), Mr Michael Colston, Traffic Engineer, included comment at pars 3.44 to 3.52 on the McLaren Parramatta Road Corridor Traffic Study. After noting the content of the Study recommending reduction in overall development density in the Parramatta Road Corridor Area, Mr Colston’s Report contains the following comments:

3.46 The analysis depends on a number of assumptions. Variations in any one of those assumptions would significantly alter the conclusions of the analysis. Thus, for example, if a slightly lower proportion of development traffic used this section of road that forecast then the need to reduce the scale of development would be lessened.

3.47 More importantly, the analysis chooses to reduce the capacity of The Crescent by 10 per cent from 900 to 810 vehicles per hour. The analysis also increases base flows by 0.5% over 20 years. There is no basis, in the document used to derive the capacity, for reducing the figure. Indeed, the document allows for a higher capacity to be used under some circumstances. If there was no reduction of the capacity then there would have been no need to reduce the scale of the development.

3.48 Finally, it is important to note that the report identified four options to achieve a reduction in the required number of units. The report recommended the first option Removing Block 1 from the Strategy). However, Council adopted the fourth option of reducing intensity across all blocks.

3.49 This resulted in a reduction of 129 units in Block 6, which contains the subject site, as part of an overall reduction of 816 units in the whole study area. Apparently subsequent discussion lowered the total reduction to 700 units which would presumably mean a reduction in Block 6 of about 110 units, giving a total of some 470 new units in Block 6.

55. In my judgment, the Applicant has wholly failed to establish that the Council’s decision to reduce the maximum heights of re-development within the Parramatta Road Corridor Area was arbitrary or lacking in planning justification.

56. In this respect, I note that Mr McLaren, the author of the Study, was extensively cross- examined but as a result of that process, he did not depart from the opinions he had expressed in the Study.

57. Far from establishing that the Council’s decision was arbitrary or lacking in planning justification, the evidence clearly establishes the contrary. The Council’s decision to reduce the re-development potentiality of the area was both reasoned and reasonable being based upon the findings and recommendations of the McLaren Study and being implemented by what the Council reasonably regarded as “the fairest means” of reducing development potentialities “across the board”.

58. Of course, it is the case as Mr Colston’s Report points out, that the McLaren Study depended upon a number of assumptions relevant to predicting traffic generation, distribution of traffic flows and the traffic capacity of the relevant road system. But this is merely to state the obvious so far as inherently concerns any traffic predictions (generation, distribution and capacity).

59. The point is simply this – the Mclaren Study provided a reasonable planning basis for the Council’s decision to reduce, across the board, the development potentialities of lands within the Corridor Area. That Study was adhered to in the evidence of Mr McLaren and was not undermined by Mr Colston’s testimony. That the Study was founded upon traffic assumptions, predictions and estimates does not erode its reasonable planning basis because such must inevitably be the essential and true nature of all traffic predictions and estimates.

60. The Applicant additionally submitted that the Council’s decision to reduce redevelopment potentialities was contrary to the conclusions on the economic feasibility of redevelopment contained in the Report commissioned by the Council by JBA and Berkhout (February 1999) which provided an analysis and the Masterplan for inclusion in the proposed Development Control Plan for the Parramatta Road Corridor Area. In Section 5.3 under the heading “Redevelopment potential and zoning overview” the Report noted that the Masterplan’s density and height controls would yield 4,000 additional dwellings which was in line with the Council’s original Housing Strategy target. However, the Report then notes:

The distribution of the densities and heights differs from the Scheme already adopted by Council. This has been a result of further more detailed urban form analysis, public consultation and economic analysis. Of particular note is the decision to recommend fewer six storey developments as this style of development was found to be economically unfeasible in the area at present.

61. The Report contains in Appendix E details of financial modelling undertaken for four optional hypothetical generic residential developments (4 storey walk-up flats, 6 storey mid-rise, 9 storey high-rise and 8 storey high-rise) which shows the 6 storey mid-rise option yielding a profit margin of 17.1 percent (compared with 19.5 percent, 18.6 percent and 24.1 percent respectively for the other three options).

62. These results of the financial modelling doubtless informed the following conclusions that are expressed in the Report in respect of “the land market”

It is important to note that only very high priced areas of Sydney such as the Eastern Suburbs and Lower North Shore provide examples of residential buildings with full basement parking. The economics doesn’t allow it in this area. The six-storey option with full basement parking is not feasible because of the combination of high construction costs and not being able to attain the sought (sic) of premium that comes with units on the upper most levels of high rise buildings. It is likely that these sites would be redeveloped for 3 and 4-storey walk up units with semi-basement parking rather than as 6 storey mid rise units.

Options to improve the feasibility or likelihood of development include the following:

· Increasing the height of the 6 and 8 storey buildings to 9-10 storeys. This will gain a further premium with the upper level units.

· Reducing the amount of basement parking and incorporating it into the ground floor and/or first floor.

· Removing visitor parking requirements altogether, or at least moving the spaces from the basement parking level to ground level in front of the building.

63. The Draft DCP 20 that was publicly exhibited between 1 March 1999 and 30 April 1999 reflected the recommendations for height and density contained in the Masterplan inasmuch as the maximum height for development on land fronting Parramatta Road was 6 storeys but the maximum height of 9 storeys was prescribed for development behind the Parramatta Road frontage development and the Powell Street frontage development. The maximum height of 4 storeys was prescribed for Powell Street frontage development.

64. Accordingly, the Council’s decision to reduce redevelopment potentialities (that had been reflected in the draft DCP) was effected in DCP 20 as approved, so that the 9 storeys height limit was reduced to 6 storeys and the 4 storeys height limit along Powell Street frontage was reduced to 3 storeys.

65. The Applicant submitted that because the Council’s decision flew in the face of the economic feasibility analysis contained in the JBA and Berkhout Report, its decision must be regarded as being fundamentally flawed and lacking in planning justification.

66. I am entirely unable to accept this submission. Nor do I think that a sufficient evidentiary basis has been established to truly support the submission. In this respect it is to be noted that the Applicant’s case did not itself contain any positive evidence that the form of the proposed development was dictated by economic feasibility results or mandates. Rather, it simply relied upon the content of the February 1999 Report of JBA and Berkhout which had concluded that there should be “fewer” (not “none”) 6 storey developments because “this style of development was found to be economically unfeasible in the area at the present” (my emphasis). Whether that position continues to be the case, three years after the Study simply was not addressed in the present case. In times of a strong real estate market (such as is currently being experienced in the Sydney market and has been so for the past few years) an opinion on the state of the real estate market that is 3 years out of date , can provide no real evidence of the current state of the market.

67. Moreover, it must not be overlooked that the McLaren Traffic Study upon which the Council based its decision to reduce the redevelopment potentiality across the board, had expressly acknowledged the assistance provided to the Study by JBA and Berkhout.

68. In these circumstances, the Applicant’s submission that the Council’s decision “flew in the face” of the economic feasibility analysis of the Council’s Consultants simply has not been substantiated.

69. Accordingly, I would firmly reject the Applicant’s case than the Council’s decision to reduce the development potentialities was arbitrary or otherwise lacking in planning justification.

70. This means that I do not need to consider the Council’s submission that it is not open to an applicant on a development appeal to “subliminally” attack the validity of a development control plan. In advancing this important submission, it needs to be noticed that the Council’s case did not simply take its stand upon the relevant content of DCP 20. Rather, the Council’s case supported the application of the DCP to the present development proposal with expert planning, urban design, landscape architectural and acoustical expert evidence supporting the merits of applying DCP 20 to the proposed development. I would however make two general observations concerning attempts to go behind the text of a development control plan (DCP) to question its planning rationale or justification—

(i) that the status and function of a DCP is not merely equivalent to an expert planning opinion which is susceptible of simply being passed over in favour of a different expert’s opinion; and

(ii) that there is very little scope for the curial review of the merits of a DCP as opposed to the validity of a DCP and the two types of review are not to be confused or merged.

71. Finally, the Applicant sought to make an independent assault upon DCP 20’s height control of three storeys on lands fronting Powell Street, namely that it was an unnecessary control on height because it would be possible to design and acoustically treat a much higher building (such as its proposed building No 3 containing part 5 and part 12 storeys) on the Powell Street frontage.

72. The planning genesis for the three storey height control on land fronting Powell Street is found in the Parramatta Road Corridor Study (November 1997) prepared for the Council by Mike George Planning Pty Ltd and others. At p 26 in the context of discussing “the opportunity to increase development density around the Homebush Railway Station”, the following comments are made:

The northern sites to Powell Street can be developed to three storeys and should not exceed this due to freeway noise constraints

73. This written text is reinforced by notations on the “Site Analysis” plan showing freeway noise as a constraint on development on lands situate immediately south of the Motorway and on the “Development Strategy” plan which include the following notation in respect of lands (including the appeal site) forming the “Eastern Sector” of the Study Area:

Major Development area. Encourage mixed development. Re-establish Town Centre Character. Building Heights from 3 storeys adjoining M4 to 12 storeys adjoining station

74. The Applicant’s case that the 3 storey height limit for a redevelopment of land fronting Powell Street was an unnecessary control was founded entirely upon the acoustical report of Mr Graham Andrew dated November 2001 (Exhibit V).

75. Mr Andrew’s Report included the noise data derived from a logger placed midpoint on the Powell Street boundary 1.5 metres above ground level for three days in February 2000. His Report notes that the M4 is elevated some 3.5 metres above the level of Powell Street and is situate approximately 40 m distant from the nearest proposed residential façade on Powell Street. His Report notes from these facts that:

there is thus considerable shielding of the true reading which would be experienced at an elevated location

76. The Report notes that the logarithmic average measured noise levels at the Powell Street Boundary were as follows:

LAeq 15 hr 0700 – 2200	LAeq 9 hr 2200 – 0700	LAeq 24 hr 0000 – 2400	LA 10 24 hr 0000 – 2400
73	69	72	76

77. The “conclusions” expressed by Mr Andrew in his Report at p 20 are as follows:

The development is not in full compliance with the external noise level goals of the EPA road traffic noise criteria. This is due to the high existing surrounding noise levels.

The goals expressed in the EPA road traffic noise criteria are aspirational and there would be few sites in Sydney that would comply with these external noise level goals.

The objective of acoustic assessment and acoustic design in this case, as recognised by the EPA road traffic noise criteria, is to ensure that adequate noise attenuation measures are incorporated into the design of the proposed development. This report recommends noise attenuation which applied to the proposed development by way of conditions of development consent, would result in a satisfactory outcome for residential amenity even having regard to the proximity of the M4 Motorway noise source.

The development will comply with the recommendations of AS2107 assessed in accordance with AS3671 generally provided that external windows and doors are closed. Internal noise levels due to road traffic noise can be adequately and satisfactorily controlled.

The development does not comply with clause 2.8 of DCP 20 in all its respects. In our opinion some of the requirements of clause 2.8 of DCP 20 are unnecessary and inappropriate requirements.

DCP 20 should not, in our opinion, be interpreted or applied in a prescriptive fashion. It is an instrument containing general and non-specific goals, standards and matters for consideration. The proposed development, if the noise attenuation measures recommended in this report are applied to it, substantially complies with clause 2.8 of DCP 20.

78. Mr Andrew’s Acoustical Report was subjected to a devastating critique by Mr Steven Cooper, an Acoustical Consultant retained by the Council which is summarised in his Report in reply (Exhibit 18) as follows:

There are three major deficiencies in the report in that the Consultant has chosen the wrong criteria from AS2107-200, based on AS3761, has under insulated the building and has selected the wrong external noise level for the requirement of mechanical ventilation.

79. Each of these alleged deficiencies is elaborated upon in Mr Cooper’s Report in Reply, the conclusion of which included the following comment:

The acoustical assessment of the above project that has been carried out by PKA Acoustic Consulting is incorrect in that they have used the wrong internal noise design goal and it would appear that the external noise level is too low. As a consequence of using incorrect design goals the noise control measures set out are insufficient.

80. Both acoustic experts gave oral testimony and I have no hesitation in accepting as overwhelmingly cogent the criticisms made by Mr Cooper of the acoustical report relied upon by the Applicant.

81. Mr Andrews, following a conference between the experts (Exhibit 25), agreed that he had applied the wrong internal noise level criteria from the relevant Australian Standards. However, he expressed the opinion that the relevant criteria “are unrealistic in the present case”.

82. I do not accept Mr Andrew’s opinion which had the unmistakable flavour of attempting to “salvage something out of the wreckage”. His acoustic Report was demonstrably flawed and the flaws were not overcome or remedied in the course of the oral testimony. I decisively prefer Mr Cooper’s opinions and find that the proposal has not been supported by an appropriate acoustical appraisal.

83. In so finding, I would also note that the Council first called upon the Applicant on 23 November 1999 to provide “an acoustic report which assesses the impact of road traffic noise on the proposed development” and that it was not until November 2001 that Mr Andrew’s Report was finally provided to the Council as part of the Applicant’s expert evidence filed in these proceedings. Mr Andrew freely admitted under cross-examination that he had not been consulted by the Applicant on any aspect concerning the design of the proposed development. It is obvious that he was consulted “after the event” and that his acoustical assessment was fundamentally flawed, and provides no sound or reliable evidentiary basis upon which the Applicant entirely mounts its attack on the 3 storey height control on land fronting Powell Street.

84. It follows that the Applicant’s attack upon the planning rationale or justification for limiting to a maximum of 3 storeys the height of any redevelopment on land fronting Powell Street fails, and fails lamentably. The Applicant’s somewhat desperate submission that the acoustical evidence would support the Court granting a deferred commencement consent to the proposal must be roundly rejected.

85. Even if Mr Andrew’s acoustical assessment had been flawless, it would not in any event have undermined the planning rationale or justification for the 3 storey height limit on redevelopment of land in Powell Street in the immediate vicinity of the M4. As I have shown, that limit was recommended in recognition of the constraints upon redevelopment caused by traffic noise emanating from the M4, as long ago as the 1997 Parramatta Road Corridor Study and there has been nothing in the evidence in this case that brings into question that original planning recommendation or its justification.

86. For all the foregoing reasons, the Applicant’s claims that the height controls imposed by DCP 20 are lacking in planning justification, have wholly failed.

87. This brings me next to the Applicant’s case, based upon the evidence of Mr Nangle, that the proposal “complies with the objectives and intent of the DCP without slavishly following its detailed controls” or that where it departs from the controls the departure “is justified”.

88. In his Report (Exhibit J), Mr Nangle expresses the opinion that the proposal “complies or is satisfactory” with 23 of the 24 referenced requirements of DCP 20. (The only requirement that he considered the proposal did not comply with or otherwise satisfy, was the requirement for “solar power”).

89. In stark contrast, it was the opinion of Ms S Haertsch, Consultant Town Planner, that the “revised development proposal now before the Court continues to display a total lack of regard for the primary elements of the DCP and has again made no attempt to revise the podium development form, or building footprints and heights which are contrary to the DCP”: Report Ex 1 p 20.

90. Faced with such starkly opposing opinions on a matter that inherently was capable of a clear cut opinion or judgment, I directed that the town planning experts confer with a view to their seeking to reach agreement on the question of the extent of compliance or non-compliance of the proposed development with the requirements of DCP 20.

91. The result of this conference was that the experts agreed to disagree and the following document (Exhibit 23) was tendered:—

As requested by the Court, the following table has been prepared as a response to the DCP 20 compliance assessment presented at pages 13 and 14 of the Statement of Evidence prepared by James Nangle.

Clause	Requirement	Compliance Complies (C), Satisfactory (S), Not satisfactory (NS)
James NangleSue Haertsch
1.3	Objectives	SNS
1.9	Masterplan	SNS
2.1	Site analysis	CS
2.2	Building Footprint	SNS
2.3	Building Height	SNS
2.4	Built Form	CNS
2.5	Roof Form	CNS
2.6	Façade Composition	CNS
2.7	Heritage and Conservation	CNS
2.8	Visual and Acoustic Privacy	SNS
2.9	Private Open Space	SNS
2.10.1	Solar Access and Natural Lighting	CNS
2.10.2	Natural Ventilation	SNS
2.10.3	Glazing	SNS
2.10.5	Solar Power	SN/A
2.11	Stormwater, Sewerage and Drainage	CS
2.12	Access for Mobility Impaired	CC
2.13.1	On-site Parking	CC
213.2	Vehicle Access	SS
2.14.1	Garbage Facilities	CNS
2.14.2	Electricity Sub Station	SNS
2.14.3	Letter boxes	CS
2.14.4	TV Antennas	CS
2.14.5	Clothes Drying Facilities	CC

92. It is not necessary, in my judgment, to consider each of the relevant requirements of DCP 20 and I will confine my consideration to the following key requirements:

(i) building footprint;

(ii) building height; and

(iii) building form.

93. In deference to Mr Nangle’s opinion that the proposal was “satisfactory” (as an alternative to “compliance”) I should at once note a peculiar feature of DCP 20, much relied upon by the Applicant (and Mr Nangle) namely the self-acknowledged status and function of many of its requirements as “guidelines” or “guidance” for developers.

94. Thus, the Introduction to DCP 20 includes the following statements:

…..Development Control Plan No 20 (DCP20) has been prepared to control and guide the nature, form and scale of multiple-unit housing and mixed use developments within the Parramatta Road Corridor Area.

The purpose of DCP20 is to encourage developers and property owners to submit residential and mixed use development proposals which are attractive, appropriate for the surrounding built and natural environment, affordable and enjoyable in which to live and work.

…….Development guidelines included in the plan have been prepared as advice to developers in an attempt to encourage innovative and imaginative design based on sound environmental principles and to enhance the quality of the landscape and streetscape character of the Parramatta Road Corridor Area which has a high exposure.

95. Under the heading “Aims and Objectives” the following is stated:

This DCP is intended to be a comprehensive guide for developers on the minimum standards required by Council. It should be noted that each proposal will be determined according to how well it assimilates with its surrounding and general locality. Compliance within the DCP will not lead to automatic approval

96. Section 1.7 is headed “Use of these Guidelines” and states the following:

Persons seeking to redevelop or alter sites within land the subject of this plan will be expected to consider carefully the context of their proposal and identify those design guidelines which will apply. Council may refuse consent to a development which does not comply with this DCP, or may modify the development by way of conditions so that it does comply.

Compliance with this DCP does not necessarily mean the application will be approved. All applications will be determined on their individual merits, taking into account these guidelines together with other matters under Section 79C of the Act and the Strathfield Planning Scheme Ordinance.

Where a proposed development departs from any controls contained in this DCP, the applicant must put forward reasons why particular controls should not be strictly adhered to and substantiate that the development can still meet the broad objectives of the plan.

Council’s preparedness to apply the DCP guidelines in a flexible manner will depend on the applicant demonstrating that the integrity of the overall Masterplan will not be compromised and that urban design and economic development advantages would result from the proposal whilst still achieving the overall objectives.

97. Mr Nangle’s opinions that the proposal measures up “satisfactorily” to the various requirements of DCP 20 obviously largely depend upon the Council’s expressed “preparedness to apply the guidelines in a flexible manner”. This evidently provided the basis for his “flexible interpretation” of the relevant requirements.

98. Before adjudicating upon the competing opinions of Mr Nangle and Ms Haertsch, it is necessary for me to note the precise requirements of DCP 20 in respect of the particular matters to which I have confined my attention, namely (i) building footprint; (ii) building height; and (iii) built form.
(i.) “Building Footprint”

99. This is dealt with in cl 2.2 of DCP 20 which states:

Developments within the Corridor Area are to conform generally with the building footprints as illustrated on Figures 8 to 10 of the DCP.

(ii.) “Building Height”

100. This is dealt with in cl 2.3 of DCP 20 which states:

Buildings within the Corridor Area are to comply with the height limits illustrated on Figures 8 to 10 of this DCP.

101. Figure 8 is the relevant figure showing the section of the Corridor Area that includes the appeal site. It shows the building footprints for development of the appeal site which include perimeter development on Powell Street, with a 3 storey height limit and perimeter development on Parramatta Road frontage with a 6 storey height limit and 2 finger developments on either side of a mid access laneway each with a height limit of 6 storeys. A copy of figure 8 is annexed hereto and marked “C”.

(iii.) “Built Form”

102. This is dealt with by cl 2.4 of DCP 20 which states:

Developments within the Corridor Area are to conform generally with the Built form guidelines as illustrated on Figures 14 to 19 of this DCP.

103. It is to be noted that all of the foregoing provisions are found in s 2 of the DCP which is headed “Development Guidelines”. Section 2.1 is headed “Site Analysis” and requires all applications to include a “Site Analysis” drawing.

104. A subset of s 2.1 is headed “Design Principles” and states the following:

Council will consider the results of the site analysis, and will not grant consent to a development unless it is satisfied that:

1. The development is consistent with the height limits illustrated in figures 8 to 10.

2. The development is compatible with the predominant height, bulk, scale and future character of the locality.

3. The development is generally consistent with the Masterplan for the Parramatta Road Corridor area.

4. The height, scale, character and external detailing of the development is compatible with any adjoining heritage.

5. The development is unlikely to adversely affect the amenity of any existing residential development in terms of overshadowing, privacy, excess noise, loss of views or otherwise.

105. The reference to the “Masterplan” is to reference to s 1.9 “Masterplan” which states:

A Redevelopment Strategy Masterplan for the Parramatta Road Corridor Area has been formulated (Refer to Figures 2 to 6). This plan encompasses objectives, standards and controls for both public and private land. The Masterplan objectives, strategies and controls relating to private land form the basis of this DCP.

106. Figure 3 shows that part of the Corridor Area that includes the appeal site, a copy of which is annexed hereto and marked “D”.

107. Although Figure 3 speaks for itself, I am content to adopt the following interpretation of it contained in Ms Haertsch’s Report (Exhibit 1).

The Masterplan envisages narrow buildings fronting Parramatta Road and Powell Street with “ fingers ” projecting into the block behind creating landscaped space/courtyards in private land.

108. That interpretation is uncontroversial and would appear to have the support of all other experts who considered the elements delineated in the Masterplan.

109. Notwithstanding Mr Nangle’s flexible interpretation of the DCP requirements, I am satisfied on the evidence that the proposal does not comply with the DCP requirements in respect of (i) height limits and (ii) building footprints; and (iii) the Masterplan (Figure 3).

110. Its non-compliance with the height controls is most obvious and clear-cut. Clause 2.3 of DCP 20 requires buildings “to comply with” the height limits.

111. Obviously, the proposed building No 3 (part 5 and part 12 storey) development does not comply with the 3 storey height limit on the Powell Street frontage and the proposed Building No 1 (10 storeys) does not comply with the 6 storey limit on Parramatta Road frontage.

112. The proposal’s non-compliance with the building footprint requirements of cl 2.2 of the DCP 20 is less obvious because here the relevant criterion is “conform generally”. Nonetheless, the elements of non-conformity identified in Ms Haertsch’s Report satisfy me that the proposal does not “conform generally” with the building footprint requirements of DCP 20. Her overlays (Exhibit 10) clearly enough demonstrate very significant variations from the footprint requirements, even when they are interpreted flexibly.

113. Similarly, I accept Ms Haertsch’s opinion that the proposal does not comply with Figure 3 of the Masterplan. Here, again the relevant criterion is more flexible “be generally consistent with”. The form of podium development proposed is not generally consistent with Figure 3, particularly in respect of its non-provision of (i) the mid block lane access; and (ii) private landscape space (with deep soil planting). Her opinions in this respect are fully supported by the opinions of Professors Droege and Weirick (hereafter referred to).

114. Having established that the proposal does not comply, to the requisite relevant standard, with the requirements of the DCP in respect of building height, building footprint and Masterplan built form, it remains for me to consider whether the Applicant has substantiated the departures from the relevant standards as provided for and as required by s 1.7 of DCP 20.

115. I should first note that Mr Nangle, in his Report (Exhibit J) criticised the concept of mid block laneway access in the present case because the appeal site is flanked by the adjoining NSW Teachers Credit Union Building at Nos 28 to 38 Powell Street which building fully extends the depth of the block to the Parramatta Road frontage and by an approved development at Nos 2 to10 Powell Street which does not incorporate the mid block lane access. In these circumstances, he thought that the Council’s reliance upon that aspect of the Masterplan in the present case was entirely irrelevant or unreasonable.

116. He was also critical of the building footprint requirements of DCP 20 because they were depicted on a map having a scale of 1 to 4,000 and as such could only reasonably be expected to depict “conceptual” requirements in the absence of full cadastral detailing.

117. Having regard to the express objects of the DCP concerning building height and built form, Mr Nangle was of the opinion that a case had been made out to justify variation of the requirements. In respect of “building height” he expressed the following opinions as justifying the variation from the DCP requirements:—

• the proposed development provides increased open space by providing some higher built forms with less footprint
• proposed development provides a coherent street scale and reinforces the concept of development at the streetfront
• provides a vibrant urban form
• maintains good solar access to all apartments

118. Ms Haertsch’s competing opinion was to the following effect (p 23 Exhibit 1)

The non-compliances with the DCP 20 height controls are substantial and represent a major departure from the intended built form of the DCP. The non-compliances impact both street frontages and the relationship of the site to the adjoining property to the west. No reasonable justification is given for the departure from this primary control of the DCP. By comparison, the redevelopment site at 2-10 Powell Street has a current approval for 5 storeys. The approved building is reasonably consistent with the intentions of the footprint and height controls of DCP 20.

119. In respect of these competing opinions, I prefer Ms Haertsch’s opinion which has the support of Professors Droege and Weirick. In particular, the proposal’s significant and substantial exceedance of the height limits imposed by DCP 20 clearly have not been justified by the Applicant.

120. Ms Haertsch’s opinions are corroborated by the following comments contained in the Report of the Urban Design Review Panel (which assessed the proposed development on 24 September 2001).

The site lies within the Masterplan that is part of the Parramatta Road Development Control Plan, but what is proposed here does not appear to take note of that Planning Control. No reasons are given with the set of drawings attached to the submission why this is so .

121. But even more important is the evidence of Professor Peter Droege whose Report (Exhibit 5) contains a devastating critique of the absence of acceptable urban design features of the proposal, as is reflected in the following excerpts from his Report:

The six-storey height limit provided for in the DCP has been disregarded, and there are no grounds for variation. Quite to the contrary, this provision is a maximum allowance and should not be reached here at all, where the predominant height is two and three stories at the street face. In my view, the maximum DCP provisions can only be achieved in a form that is set back from Parramatta Road.

I have previously indicated that I feel that 6 storeys along Parramatta Road are excessive and out of context with the traditional streetscape and certainly feel that 10 storeys are completely unacceptable and in crass violation of the context. Similarly, the proposed 5-12 storey heights along Powell Street should be lowered to 3 to make possible a reasonable street frontage without the deleterious amenity costs that would be incurred by the proposed heights.

122. Accordingly, I find that the proposed development fails to comply to a significant and substantial degree with the requirements of DCP 20 in respect of building height, building footprint and building form.

I. CONSIDERATION OF URBAN DESIGN FEATURES OF THE PROPOSED DEVELOPMENT

123. In referring to urban design features, I include considerations of the proposed development’s architectural design and streetscape impacts.

124. The overwhelming weight of evidence on these issues reflected most adversely on the proposal.

125. In particular, Professors Droege and Weirick gave devastating critiques of the proposal’s lack of fit, and respect for, its context including the streetscapes of both Parramatta Road (including the collocation of two heritage items at the intersection of Knight Street with Parramatta Road) and Powell Street.

126. Professor Droege’s Report (Exhibit 5) contains the following comments in respect of the proposal’s adverse impacts on Parramatta Road:—

Residential design quality is a major concern through the metropolitan area. In this context this part of western Sydney needs careful concern for the aesthetic future of the area, and also for future economic development, identity and market acceptance reasons. The general quality of the Sydney residential market and consumer awareness have climbed significantly in the decade or so since which this proposal has been developed. Were it to be built today it would risk instant stigmatisation and rejection of the project and with it, the entire area, certainly among market participants with choice.

The small-scale setting at this crowned, slightly bent U spot along Parramatta Road has its own important and qualitatively high significance which must be respected and worked with. The absurd dwarfing of the theatre and the building enclave is most grotesque, but unfortunately not the only aspect of the development’s proposed appearance which should be rejected.

Notwithstanding the paucity of graphic material presented it is sufficient to ascertain its inconsistency with SPSO by virtue of constituting a seriously negative aesthetic impact of the proposed hulking presence of the development on Parramatta Road, out of scale with the context.

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Had a basic urban design analysis been applied to the site in its setting the applicant may well have arrived at similar conclusions as did the authors of the Parramatta Road Corridor Masterplan, that is, that the site is too large to be sensibly developed as an isolated project, but will benefit from separation into two manageable city block halves: one along Parramatta Road and one to the rear of the present site. The Masterplan outlines a rational structure in which a coherent street system along these lines can be developed at some point in the future. Indeed, there is at least one development in the block in question which has foiled this worthy goal in its pure form; still, reasonable efforts can still achieve a variation of this concept, albeit at a normalised scale, height and density, and without reliance on a massive – podium parking structure.

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The development flies in the face of clause 2.5 of DCP 20 in that it threatens to not only not create an interesting skyline, and does not enhance views from adjoining development but, to the contrary, mars the skyline of the area and represents an unhappy view onto a generic development that has not been designed with specifically relevant qualities in mind.

The excessive height, in combination with an insensitive architectural language, results in a less-than-interesting, urbanistically insensitive skyline and the downgrading of views from adjoining developments across the site boundaries and as well as across Parramatta Road.

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The concept is basically misguided, structured as an internalised world on a podium, where a more carefully considered approach should be deployed, to set the project in harmony with its surroundings and to create a set of more internal areas which are manageable and open in fit their urban outcome. This would not be possible at the development intensity proposed –an illustration of the fact that the site and its inhabitants would suffer from project overdevelopment under this scheme.

127. To similar effect are the following criticisms contained in Professor Weirick’s Report (Exhibit 8):

The proposed development locates a 10-storey building (Building 1) next to the Homebush Theatre, and a 5-storey building (with roof deck) two doors away at 71-77 Parramatta Road (Building 5). The bulk and scale of these buildings – which feature minor setbacks, inconsistent fenestration and awkwardly articulated balconies – will overwhelm the form and façade of the cinema building, rob it of its landmark status, and generally dominate the heritage node it forms with the Horse & Jockey Hotel. This will diminish tho heritage value of the two listed buildings, and significantly degrade the rare streetscape quality of this section of Parramatta Road.

The scheme attempts to mitigate the scale and bulk of the major new buildings by (1) creating a south-facing alley entranceway from Parramatta Road, which separates Building 1 from the Homebush Theatre; and (2) incorporating a minor, 2.0m, setback from the property line at Level 1 behind a screen wall which mimics, in outline, the traditional 2-storey scale of commercial buildings in the neighbourhood. Building 5 has a similar screen element incorporated in its south façade. Building 1 has a further setback, and south-facing terrace, at Level 6.

These elements will not significantly reduce the perceived scale and bulk of the new blocks, particularly as seen from the south side of Parramatta Road. This is due to the general awkwardness, and aggressiveness of the architectural composition, with its inconsistent fenestration, blank walls and heavy balconies.

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The architectural and landscape elements which aim to mitigate the bulk of Buildings 1 & 5 are incidental in the context of a 10-storey building mass, 30m high and 31m deep in the case of Building 1; 21m high and 38m deep in the case of Building 5. DCP 20 aims to establish a building height of 6-storeys in this location, with indicative built form 19m high and 18m deep. DCP 20 has been formulated to ensure a coherent street scale and compatibility with the existing urban fabric. The proposed development does not meet these objectives, and if approved, the result will be visually prominent in the approach to the subtle but distinct highpoint of the shale ridge at Homebush. The proposal will diminish the significance of the heritage buildings and compromise, if not destroy, the well-proportioned containment of street space in this location.

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The architectural expression of the project is undistinguished, if not crude, with what appear to be full-height blank walls in face brick, on the north, south, east and west facades; splayed verandahs divided down the middle by blade walls; and a prominent pattern of punched fenestration. This is a landmark Sydney does not need.

128. The Applicant’s evidence really contained no answer to, or a rebuttal of, these quite devastating critiques of the proposed development made by eminent experts, whose opinions I entirely accept.

129. Accordingly, I find that the proposed development is significantly lacking in desirable urban design features or qualities with the consequence that the proposed development would have adverse impacts on the built environment (including the streetscapes of Parramatta Road and Powell Street).

J. CONSIDERATION OF IMPACTS OF PROPOSAL ON THE HERITAGE ITEM “THE NITERIDER”

130. As I mentioned earlier, cll 59A and 59B of the LEP require an assessment to be made of the affect of the proposed development upon the heritage significance of the “Niterider” building, being a heritage item designated by the LEP.

131. Clause 59A applies because the proposed development involves

(a) the demolition or alteration of the (heritage) building; and

(e) the erection of a building on land on which the (heritage) building is situate

132. Clause 59B applies because the appeal site is in the “vicinity of a heritage item”.

133. Clause 59B would apply not only in respect of the “Niterider” building but also the “Horse and Jockey Hotel” directly opposite the “Niterider” on the corner of Parramatta Road and Knight Street.

134. Additionally, cl 59D of the LEP required the submission by the Applicant to the Council of a heritage assessment or statement concerning the heritage significance and conservation of the heritage building and the steps proposed to mitigate any impact of the development on the heritage significance of the heritage building. The Applicant had submitted with its original development application a heritage assessment prepared by Architectural Projects Pty Ltd (Exhibit 9).

135. It may also be noted that the same Applicant, on behalf of the same owners of the appeal site had submitted a heritage assessment report prepared by a different heritage consultant some 9 years earlier in support of an earlier re-development proposal for the appeal site (Exhibit 22).

136. In the 1990 proposal, the “Niterider was to be substantially conserved and retain its theatre restaurant usage. In the present proposal, the “Niterider is to be altered to be put to adaptive reuses (or commercial development on the ground floor with the creation of four residential levels).

137. The Court had the benefit of competing opinions of two eminent consultant heritage architects (Mr Staas for the Applicant and Mr Trotman for the Council) as to the heritage significance of the “Niterider” and as to the heritage impacts of both aspects of the proposed development on the appeal site that I have identified.

138. Additionally, it had the benefit of the opinions of Professors Droege and Weirick upon one aspect of the heritage issues, namely the impact of the proposed development on the “Niterider” in particular and to a lesser extent the “Horse and Jockey Hotel” and the collocation of those two heritage items at the junction of Knight Street and Parramatta Road.

139. Mr Tropman stated that very little of the significant original internal fabric remains of the theatre that was constructed in around 1925. The most important aspect of the interior of the heritage item lies in the relatively intact internal spaces. He continued:

The extent of the proposed demolitions and alterations to the Niterider Theatre Restaurant would essentially result in the only remnant of the original building being the façade. This would result in the majority of the significance of the heritage building being lost.

140. He considered that the proximity of the proposed ten storey and twelve storey residential towers adjacent to the heritage item would reduce its significant landmark qualities.

The proposed development is incompatible with the retention of the significance of the Niterider Theatre Restaurant and no effort has been made to mitigate any of the numerous negative impacts the proposed development has on the heritage item.

141. Mr Staas in reply to Mr Tropman was of the opinion that:

· The Niterider Theatre Restaurant is listed in the Movie Theatre Heritage Register and the interiors of the building are not significant;

· The front façade forms the focal point of the vista along Knight Street and this is one of its primary points of significance;

· The original building was an exercise of commercial facadeism as the sides of the theatre are relatively plain with simple functional window openings;

· the level of significance of the relatively intact internal spaces in a building, which retains little of the significant internal fabric intact is questionable. The remnant spaces described here have no original significance, are not the original spaces and are now inaccessible to the public because of the closure of the restaurant;

· It is unlikely that any average person regarding the Parramatta Road frontage in conjunction with oblique views of the western façade would be unable to interpret that the building had formerly been a theatre or that it had been adapted for residential use.

· In this application there is no impact on the important street façade and the overall form of the original building;

· This proposal is not facadeism, a considerable amount of the building including its overall mass and a large extent of its external fabric is retained;

· The proposal is an adaptive re-use which appropriately retains significant aspects of the building’s existing character;

· The impressive façade of the former theatre will however remain unaltered and there is no effect on the building’s ability to form a focal point to the vista along Knight Street;

142. He concluded that:

There is nothing in the evidence of Mr Tropman, which adequately suggests why the adaptive reuse of the existing structure is not an acceptable form of conservation for the former cinema building, which would otherwise continue to deteriorate. I continue to believe that the residential adaptation of the building is a legitimate course, which will retain and conserve the significant aspects of the place identified in the Heritage Assessment and the Heritage Listing. In this regard I consider the application as it relates to these aspects of the case is acceptable under the terms of the Strathfield PSO and should be approved by the Court.

143. The gutted cinema has a Category 1 heritage status and the façade provides a strong “end-stop to the vista, looking north along Knight Street. It is a landmark structure in Parramatta Road. In order to maintain that significance I accept the evidence of Mr Tropman that the proposal should be designed to recognise the significance of the “Niterider” Theatre Restaurant and maintain the six storey heights proposed for the Parramatta Road frontage under DCP 20. Such a height would reflect the height of the cinema façade and not physically dominate it. The fact that the western façade would be thereby largely obscured from view would not be significant as the original building was designed to address the street.

144. The opinion of Mr Tropman in respect to the adverse impacts of the proposal on the “Niterider” which has the powerful corroborative support in the relevant opinions of Professors Droege and Weirick which I have earlier noted, is preferred to Mr Staas’ competing opinion.

145. On the question of the adaptive reuse of the “Niterider” I also prefer the opinion of Mr Tropman over Mr Staas’ competing opinion and if a use could reasonably be found for the building that would utilise the large internal space and not partition that space off as proposed, it would be an outcome far more respectful of the existing building and its heritage significance and result in its conservation as a whole, rather than merely its street façade.

146. Accordingly, I find that the proposed development would have an unacceptably adverse impact of the heritage significance of the “Niterider” and not result in its conservation except for its street facade.
K. THE PROPOSAL’S IMPACT UPON ADJOINING PROPERTIES, NO. 12 POWELL STREET AND NO. 69 PARRAMATTA ROAD

147. As can be readily appreciated from the plan annexed hereto and marked “A”, No 69 Parramatta Road and No 12 Powell Street are two sites which will be isolated by the proposed development in the case of No 69, and by the combined effect of the proposed development and the approved development at Nos 2 to 10 Powell Street in the case of No 12.

148. Not only will these two sites be so isolated, but they will be dwarfed by the height and mass of the proposed development.

149. At the present time, No 12 is a derelict cottage and No 69 is a small building used for commercial purposes.

150. In speaking of these sites being isolated and dwarfed by the proposed development, I am referring to the height and mass of the proposal (far exceeding the height, building footprint and built form requirements of DCP 20) and to the isolation of the sites as redevelopment sites with the potentiality for re-development accorded by DCP 20.

151. As earlier noted, the owner of No 69 has consistently opposed the proposed development, including upon the ground that it would prejudice future redevelopment options for No 69. He is also concerned about the adverse impacts of the proposal upon his existing development. He gave evidence at the hearing to this and other effect.

152. There was no evidence of objection from No 12 Powell Street, which appears to be owned by a deceased estate. Certainly the derelict house appears uninhabited.

153. As a matter of general planning principle, I would readily accept Professor Droege’s criticism that the proposal’s isolation of the two sites represents unacceptable practice and outcomes under current standards for urban redevelopment.

154. There are, however, some qualifications that need to be added in the present case, most notably concerning No 12 Powell Street. This is because it has only recently been earmarked for partial acquisition by the Council as part of its proposed mid-block road or laneway system. The Council, as recently as 28 August 2001 resolved to prepare a draft LEP to rezone lands (including at least part of No 12) as proposed roads. These proposed zonings appear to reflect the pattern for mid block laneway access shown in the Masterplan incorporated in DCP 20, but now incorporating a dog leg to Powell Street over No 12, instead of access through Nos 2 – 10 Powell Street (the approved redevelopment of which did not include creation of that laneway access).

155. Accordingly, the proposal’s isolating of No 12 Powell Street appears to have been overtaken by the Council’s recent decision to rezone part of No 12 for road purposes.

156. However, I do accept Professor Droege’s criticism of the proposal’s isolating of No 69 Parramatta Road. This does not represent good urban redevelopment practice even though it is no doubt possible that No 69 could be redeveloped as an isolated lot. However, the redevelopment options are obviously much reduced than would be the case had No 69 been incorporated in the appeal site. This conclusion is not to dictate site amalgamations as a necessary prelude to redevelopment, especially in the context where the detailed provisions of DCP 20 do not themselves address the issue. However, it remains my opinion, that the proposal does have that particular adverse impact on No 69 Parramatta Road.
L. CONCLUSIONS AND ORDERS

157. Having regard to my findings and conclusions on each of the four principal issues that I have just considered, the question is how should the development proposal be evaluated conformably to the EP&A Act, s 79C?

158. In my judgment, the cumulative weight of my findings on each of the four principal issues that I have considered inevitably lead to my ultimate evaluation that development consent should be refused in the present case.

159. Of the four principal issues that I have distilled from the plethora of issues raised in the case, the proposal’s non-compliance with DCP 20 and the proposal’s lack of favourable urban design qualities would, in combination, be more than sufficient in themselves to require the same planning evaluation of the proposal, and probably each in insolation would be sufficient of itself to require the same evaluation.

160. However, ultimately it is not necessary to separate out these two considerations because in large measure they are complementary to one another if not more fundamentally interrelated. Not only does the proposal significantly not comply with the requirements of DCP 20 but it significantly lacks favourable urban design quantities or attributes.

161. I would, however, say that in the present case, the proposal’s significant and substantial departures from the requirements of DCP 20 (including the Masterplan incorporated therein) tells very strongly against the proposal. This is more particularly the case where, as here, the DCP has been developed in tandem with LEP No 79 which rezoned the Parramatta Road Corridor Area to the Mixed Use Zone (thereby creating the legal possibility for the proposed development to occur) and where both that LEP and DCP were founded upon the same comprehensive prelude planning studies. The two planning controls are fundamentally interrelated.

162. The significance of the departures from the requirements of DCP 20 in the present case is heightened by two additional factors—
(i) the very large scale nature of the redevelopment proposal; and
(ii) its crucial timing in the early stages of implementation of DCP 20 (and the Masterplan it incorporates).

163. These factors, in combination would, if the proposal were to be approved, so seriously undermine the integrity and planning intent of DCP 20 (including the Masterplan) as to effectively emasculate it and thereby to set at nought the fruit of the sustained planning processes which undergird DCP 20.

164. To approve the proposed development would not only create a planning precedent very adverse to the integrity of DCP 20, but would virtually ignore the content of DCP 20, in circumstances where no justification for departing from the requirements of DCP 20 has been substantiated by the Applicant.

165. Although it is trite law (as the Applicant has submitted) that the weight to be given to DCP 20 is ultimately a matter for the decision-maker acting in accordance with s 79C of the EP&A Act (in this case the Court), and that law has not been abrogated by the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 nonetheless the judgment of the Chief Justice in that case (which was concurred in by the other Judges) emphasised at 387 that the discretion conferred by s 79C

is not at large and is not fettered. DCP No 23 had to be considered as a fundamental element in or a focal point of the decision-making process. A provision so directly pertinent to the application for consent before the council as was cl 4.0 of DCP No 23 was entitled to significant weight in the decision-making process, but was not, of course, determinative.

166. For similar reasons, I would in the present case assign significant weight to DCP 20 and to the fact that the proposed development does not comply to a significant degree with its requirements concerning building footprint, building height and built form.

167. The Applicant has known since the development application was originally lodged with the Council at the end of 1999 or soon thereafter that the development proposal it has pursued (including the amended plans that it has relied upon at hearing of the present appeal) did not comply with DCP 20 (and the Masterplan). I mention this as an unexceptional fact (because clearly it was entitled to prosecute its development proposal) but would emphasise that it must be taken to have acted deliberately and consciously in this respect. Its primary case has been that the proposal is a major redevelopment of an under-utilised land resource that will upgrade the rundown condition of this part of the Parramatta Road Corridor Area and may stimulate similar other major redevelopments to the benefit of the run-down area. But its case was, from the very beginning, knowingly set on an unavoidable collision course with DCP 20. The collision has duly occurred and it is the proposal that has been stopped in its tracks and not DCP 20, the integrity of which (if not its very survival) has been severely threatened by the proposal.

168. To the extent that the Applicant has relied upon other development consents granted for major re-developments occurring in this general area of the Municipality (they are collected in Exhibit E) the existence of these consents or the developments undertaken pursuant to the consents does not undermine the integrity or operation of DCP 20. This is because many of the cases involve lands located beyond the boundaries of DCP 20 and in the two cases that involve lands within those boundaries the consents were granted at a time prior to the commencement in February 2000, of DCP 20.

169. Conversely, the Council relies upon the development consent it recently granted for redevelopment of No 123 Parramatta Road and 50 Powell Street (Exhibit 32) as demonstrating that re-development proposals are currently emerging that comply with the requirements of DCP 20 and fulfil the aspirations of the Masterplan.

170. For all of the foregoing reasons I make the following orders:
1. The appeal is dismissed.
2. Development consent is refused.
3. The exhibits are returned.
4. No order as to costs.