FPG Powell Pty Ltd v Strathfield Council

[2017] NSWLEC 1096

Land and Environment Court

New South Wales

Medium Neutral Citation:	FPG Powell Pty Ltd v Strathfield Council [2017] NSWLEC 1096
Hearing dates:	31 January 1 February 2017
Date of orders:	01 March 2017
Decision date:	01 March 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: residential flat building; design. amenity impacts; drainage and flooding
Legislation Cited:	Strathfield Local Environmental Plan 2012; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development; State Environmental Planning Policy (Building Sustainability Index Basix) 2004; State Environmental Planning Policy No 55 – Remediation of land
Category:	Principal judgment
Parties:	FPG Powell Pty Ltd (Applicant)   Strathfield Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Mr T Hale SC (Respondent) Solicitors: Mr G Hartley Hartley Solicitors (Applicant) Mr S Shneider Houston Dearn O’Connor (Respondent)
File Number(s):	263468/2016

Judgment

1. FPG Powell Pty Ltd (FPG) lodged development application No 2016/113 with Strathfield Council on 5 July 2015 seeking consent to demolish an existing sign and commercial building and construct a residential flat building comprising three levels of basement parking including a car lift and twenty nine residential apartments above at Nos. 37 Powell Street and 103 Underwood Road, Homebush.

2. The council had not determined the application within the prescribed period and FPG is appealing its deemed refusal.

The site and its context

3. The site is legally described as Lot 4 in DP 260729 and Lot 10 in DP 711389, with street addresses of 37 Powell Street and 103 Underwood Road, Homebush. The two lots form a site located on the north western corner of Powell Street and Underwood Roads with the M4 motorway to the immediate north.

4. It is an irregularly shaped parcel with a combined frontage of 38.7m to Powell Street, a curved frontage to Underwood Road of 26.2m and total site area of 924.3m2.

5. No 37 Powell Street (No 37) contains a large double sided pylon advertising structure in the northern corner of the site and, prior to works associated with the widening of the motorway, had been develop with a paved pedestrian and vehicle pathway, decorative street lamps, seating and landscaping and had the appearance of a local park. The embellishments works had been required as conditions of consent relating to the advertising structure which would be demolished if consent is granted.

6. No 103 Underwood Road (No 103) contains a single storey commercial building with basement parking.

7. The immediate locality is characterised by a mix of residential flat buildings and commercial development. Immediately adjoining the site to the west is a four storey residential flat building with basement parking (38-45 Powell Street). A four storey mixed use building with basement parking is located directly opposite the site with parking and service areas also fronting Powell Street located along its southern side associated with business that front Parramatta Road.

8. The site is relatively flat however is affected by a gradual fall from north west to south east. It is affected by overland flow of stormwater runoff in a 1 in 100 year storm event. The 1 in 100 year ARI and PMF flood levels in the vicinity of the site are 5.9m AHD and 6.6m AHD respectively.

Background and the proposal

9. The application originally lodged with the council proposed a 2 stage development with the first stage being constructed on No 37 and the second on No 103.

10. The applicant sought and was granted leave during the hearing to amend the application to remove the staged development proposal so that development consent is now sought to develop the proposed building as a whole.

11. The proposed building would comprise three levels of basement parking with the upper level accessed from a ramp off Powell Street setback 3m from the western boundary. A hydraulic car lift is proposed to provide access from the upper level to the two lower parking levels. A total of 38 parking spaces are provided of which six are accessible spaces. Individual storage areas are also provided within the basement levels that would be associated with each apartment.

12. A total of 29 apartments in six levels above the basement would be provided, two on the ground floor, six on levels 1-4 and three on level 5. The apartment mix comprises 10 x 1 bedroom and 19 x 2 bedroom units. A communal terrace is located at ground level in the north western corner of the site with a large rooftop terrace at the eastern end of the site. Balconies are provided to each apartment, the majority of which have a northern aspect.

The planning controls

13. The site is zoned B4 Mixed use under the provisions of Strathfield Local Environmental Plan 2012. Residential flat buildings are permissible with consent in that zone. Clause 2.3 (2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To facilitate mixed use urban growth around railway stations and transport nodes and corridors, commercial centres and open space.

• To provide local and regional employment and live and work opportunities.

14. Part 4 of the LEP applies to Principal development standards with clauses 4.3 Height of buildings, 4.4 Floor space ratio (FSR) and 4.4A Exceptions to floor space ratio (Parramatta Road Corridor) relevant considerations. Pursuant to the provisions of those clauses the maximum building height for the site is 20m and the maximum FSR is 1.35:1 however, the key sites provision gained through consolidation of the two lots that comprise Key Site 28 increase that FSR to 2.25:1 (clause 4.4A).

15. The applicant relies on a written request pursuant to the provisions of clause 4.6 of the LEP in relation to non-compliance with the maximum building height. This is discussed in later in this judgment.

16. Clause 6.3 of the LEP is in the following form and relevant to determination of the application due to the floodprone nature of the site:

6.3 Flood planning

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

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

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

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

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to    which this clause applies unless the consent authority is satisfied that the    development:

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

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

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

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

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

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause.

(5) In this clause:

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

17. Other relevant environmental planning instruments are State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development; State Environmental Planning Policy (Building Sustainability Index Basix) 2004 and State Environmental Planning Policy No 55 – Remediation of land. None of the contentions in the case relate to these instruments and the council is satisfied the proposal is not contrary to any of those provisions.

18. Strathfield Consolidated Development Control Plan 2005 (DCP) and Strathfield Development Control Plan No 20 (DCP20) also apply to the site.

The issues

19. Through the grant of leave to the applicant providing for the amendment of the application which removed the staged consent proposal from the application, the council is now satisfied that its first contention that related to the Key Site Control in clause 4.4A of the LEP is resolved and the site will be developed as one building over the two lots to a FSR that is compliant.

20. The remaining contentions are:

1. Building design

2. Privacy

3. Drainage/Flooding and

4. Inadequate information.

The evidence

21. The hearing commenced on site with evidence heard from one objector to the proposal, the owner and occupier of a ground floor unit at 38-45 Powell Street. His unit and its associated courtyard immediately adjoin the site. He was concerned about the privacy impacts from the proximity of the proposed balconies of the development overlooking that courtyard area which is used by his family for play space and private recreation.

Town Planners

22. Expert town planning evidence was heard from Mr A Betros for the applicant and Ms K Gordon for the council. Their joint report, Exhibit 4, addressed all of the contentions other than drainage and flooding which they deferred to engineering experts.

23. An agreed condition has been developed which ensures the site is consolidated into one allotment prior to an occupation certificate being issued so as to address the council’s initial contention that related to the Key site controls for FSR bonus. The council accepts that this condition fully resolves the contention.

24. Contention 2 relates to building design and a particular concern regarding the lack of connectivity between the apartments and the ground level communal open space. The applicant has prepared further amended plans that address these concerns, Exhibit P which Ms Gordon accepts as satisfying her concerns and therefore resolve that contention. The plans also provide for an improved streetscape appearance at this level.

25. The experts agree that if additional privacy measures are provided to the western side of the balconies of Apartments 4, 7, 10, 13 and 16 and to the western 2m of the northern side of the balconies of Apartments 3, 6, 9, 12 and 15, adequate privacy would be afforded to the private open space of the adjoining residential flat building. Ms Gordon explained these proposed amendments to the resident of the adjacent property during the site view and whilst he acknowledged this would improve the situation it did not result in him withdrawing his objection, remaining concerned about the loss of privacy in an area where his children play.

26. The condition proposed by the experts has been incorporated into the draft consent conditions, Exhibit 8 as condition 8. The experts agree that if imposed the works required involving the installation of additional privacy screens would result in acceptable impacts when combined with the setback of these balconies.

27. The contention in relation to inadequate information went to survey details, timing of staging and treatment of the blank wall of stage 1 and the need for landscape and stormwater plans. The first contention was resolved through the provision of a survey which was used by the planners to determine the height of the proposed building. They agree that the building height will breach the 20m development standard and Mr Betros has prepared a written objection to that standard. As discussed, staging in no longer proposed and therefore these contentions were not pressed. Landscape plans were provided and are assessed as satisfactory.

28. The drainage plans are subject to the engineering evidence.

Engineers

29. That evidence was heard from Mr P Kozarovski for the applicant and Mr R Rosadi for the council. They had not prepared any evidence in chief and were required to address the applicant’s objection to draft condition 7. That condition requires the preparation of a flood study and lists the criteria to be assessed in that study.

30. Mr Staunton, for the applicant, contends that the information provided to the council addresses the issues and concerns and that the Court can be satisfied that the considerations of clause 6.3(3)(a)(b) and (c) are met.

31. Mr Hale, for the council, submits that the council’s flood model for the Powell’s Creek catchment, which the council makes available to applicants, should be used to assess the impacts of flooding both on and off site.

32. The experts met to discuss the concerns of the council as articulated by Mr Rosadi. He says that no assessment of the flowpaths had been made and whilst the floor levels had been resolved be could not say whether the affection and redirection of flooding had been met.

33. Mr Kozarovski says that he does not only rely on models but also undertakes a view of a site to assess likely impacts. In this case he identified two large walls that presently prevent the flow of water along Powell Street. He says the 7ha catchment to the site is very small and based on his analysis of the levels and site conditions, there will be no impact on flood behaviour and what is proposed in the proposed design will slightly reduce the flood impacts through increased onsite storage capacity. He says the flood hazard is low and the site is affected by back flows for flood storage rather than direct flooding from Powells Creek.

34. Mr Rosadi conceded he had not visited the site and therefore could not define the flood hazard nor assess whether there would be any off site impacts despite the 100m3 of flood storage to be incorporated into the development. Despite the applicant filing the drainage details on 22 December 2016, no assessment of this information had been made because an engineer at council resigned.

35. In response to a question from the Court as to whether it would be likely that any works in addition to those proposed in the drainage design would be required to demonstrate that there is adequate protection for the proposal against the ingress of surface runoff as detailed in the condition Mr Kozarovski says the coefficient can be accommodated in the design whereas Mr Rosadi said at worst it would require the provision of an overland flow path. Mr Kozarovski said the design of the building, which provides for the flow of water between the roof of the basement and the floor of the ground level of the apartment building provides for such a flow path.

The clause 4.6 objection

36. The majority of the building would sit below the 20m height development standard apart from the southern lift overrun to the ramp below which has a building height of 21.02m. The applicant relies on a written request that seeks to vary that development standard (Exhibit N).

37. The relevant provisions of clause 4.6 of the LEP are in the following form:

4.6 Exceptions to development standards

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

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

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

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

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

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

(a) the consent authority is satisfied that:

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

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

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

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

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

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

38. According to the written request, the height variation is triggered by a partial degree of excavation on the part of the site at 103 Underwood Road. The variation is therefore of a technical nature due to the wording in the definition in the definition of building height (i.e. measured from existing ground level) and not due to the design seeking additional height or storeys beyond that contemplated by the height controls. In this regard, the 6 storey scale of the proposal and its presentation of built form of 20 metres are consistent with that contemplated by the Key Site Map 28 controls in the DCP.

39. Clause 4.6 of the LEP imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

Conclusion and findings

40. At the conclusion of the hearing, the majority of contentions had been resolved other than the wording of conditions relating to flooding and in particular, whether a flood study was required.

41. As required under the provisions of s79C of the Environmental Planning and Assessment Act 1979 those matters which I must are the provisions of the relevant environmental planning instruments, the DCP,  the likely impacts of the development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality,  the suitability of the site for the development,  any submissions made in accordance with this Act or the regulations and  the public interest.

42. The contentions that relate to relevant environmental planning instruments go to the building height development standard (clause 4.6) and the flood planning (clause 6.3).

43. Having regard to the written request I am satisfied that it addresses the matters required to be demonstrated in clause 4.6(3), in particular that compliance with the development standard would be unreasonable and unnecessary in the circumstances of the case. That is because I agree with the evidence in the written request that the development is consistent with the objective for development within the B4 zone and the objective of the building height development standard.

40. The variation is a result of site conditions, in particular an existing ramp that results in a portion of the site and therefore the vertical distance from ground level (existing) to the highest point of the building varies in that location from the remainder of the ground level (existing). That fact, in this particular case provides sufficient environmental planning grounds to justify contravening the development standard.

41. Based on the evidence of the engineers, I do not accept that there is a need to carry out a detailed flood study for the site in accordance with the requirements listed in draft condition 7 to be satisfied that the provisions of clause 6.3(3) of the LEP are met. Although not opposed by the applicant, I accept its position that I have sufficient information available to me at this time to determine the application.

42. In particular, I satisfied that the development is compatible with the flood hazard of the land; is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; incorporates appropriate measures to manage risk to life from flood; is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

43. I accept the evidence of Mr Kozarovski that the flood hazard is low, both in terms of depth and velocity; that the flood storage provided on site would exceed the current storage on site and that the proposed floor levels accord to the council’s flood planning levels.

44. I also note the design of the building caters for an overland flowpath between the basement and ground floor levels.

45. For these reasons, the provisions of clause 6.3 are met and not a reason to refuse consent or to impose the requirements of condition 7.

46. Having regard to the town planning evidence and the evidence of the objector to the proposal I am satisfied that subject to the inclusion of additional privacy screens as detailed in the Joint Report and included as condition 8, the development would satisfy the relevant provisions of the DCP and not result in any adverse impacts to adjoining development. The site would be suitable for the proposed development and the proposal would be in the public interest.

47. There being no reasons why consent should not be granted the Orders of the Court are:

1. The appeal is upheld.

2. Development application No 2016/113 for demolition of an existing sign and commercial building and construction of a residential flat building comprising three levels of basement parking including a car lift and twenty nine residential apartments above at Nos. 37 Powell Street and 103 Underwood Road, Homebush is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A, G, P and 3, are returned.

_____________________

Commissioner Sue Morris

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Decision last updated: 01 March 2017