GM Architects Pty Ltd v Strathfield Council

[2016] NSWLEC 1216

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1216

Hearing dates:

9, 10 and 11 March 2016

Date of orders:

03 June 2016

Decision date:

03 June 2016

Jurisdiction:

Class 1

Before:

Maston AC

Decision:

See Paragraph [103]

Catchwords:

DEVELOPMENT APPLICATION - MULTI – STOREY MIXED USE DEVELOPMENT: whether development entitled to rely on the provisions for Key Sites under Strathfield Local Environmental Plan, 2012; suitability of vehicular access from Parramatta Road; STATUTORY INTERPRETATION – WORDS AND PHRASES meaning of “comprises a key site;” interpretation of maps; whether alternative request for variation of height and floor space ratio controls ought to be upheld.

Legislation Cited:

Environmental Planning and Assessment Act, 1979;
Interpretation Act 1987 (NSW)

State Environmental Planning Policy (Infrastructure), 2007;

State Environmental Planning Policy 65 – Design Quality of Residential Apartments

Strathfield Local Environmental Plan 2012

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] 239 CLR 27 at [47]

Chain Bar Mill v Wild (1939) 56 RPC 446

Climate Change and Water [2012] NSWCCA 82 NSWLR 12 at [24]

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 305

Courallie Avenue Pty Limited v Strathfield Council (2015) NSWLEC 128 (30/4/2015) at [31] to [35]

Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 146LGERA 313 [36]

Four2Five Pty Ltd v Ashfield Council (2015) NSWLEC 90; (2015) NSWCA 248

General Clutch Corporation v Sbriggs Pty Ltd (1997) 38 IPR 359 at 373-376 (Lindgren J.);

Gill v Humberstone & Co Ltd [1963] 3 All ER 180 at 183

Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 at [8]

Grey v Pearson (1857) 6 HLC 61 at 106

Lane Cove Council v Orca Partners (No. 2) (2015) NSWLEC 52 at [268], [269] and [273]

Modern Motels Pty Limited v Fairfield City Council (2013) NSWLEC 138 (12/8/2013)

NSW Crime Commission v Kelly [2003] NSWCA 145; 58 NSWLR 71 at [21]-[22]

Project Blue Sky Inc v Australian Broadcasting
Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ

Randwick City Council v Micaul Holdings Pty Ltd (2016) NSWLEC 7

Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42]-[45]

Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]

Walker Corporation Pty Ltd v Director-General, Department of Environment

Zraika v Walsh [2015] NSWSC 485

Texts Cited:

The New Shorter Oxford Dictionary;

The Macquarie Dictionary (3rd Edition);

Category:

Principal judgment

Parties:

G M Architects Proprietary Limited (Applicant)

Strathfield Municipal Council (Respondent)

Representation:

Mr A Pickles SC (Applicant)
Ms K. Gerathy, Solicitor (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2016/161836 (formally 10709 of 2015)

Publication restriction:

No

JUDGMENT

1. These proceedings are an appeal pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 (The EP&A Act) against the deemed refusal by Strathfield Municipal Council (the Council) of the development application numbered 2015/065 (DA) of the Applicant, GM Architects Pty Limited. This appeal was commenced on 14/8/2015. A notice of determination refusing consent was issued on 18 August 2015.

2. The Council maintains that the DA should be refused.

The proposal:

3. The proposal seeks development consent for:

• Demolition of existing structures;

• Consolidation of three lots into one site;

• Construction of a 13 storey mixed use development containing two ground floor commercial tenancies and seventy two (72) residential units above three levels of basement car parking.

• The residential mix of units proposed was:

• 26 x 1 bedroom units;

• 44 x 2 bedroom units; and

• 2 x 3 bedroom units.

• New vehicular access and driveway crossing facilitating vehicular access from and egress to Parramatta Road; and

• Strata Subdivision.

The site:

4. The development application site (the DA site) comprises three lots being Lots 13, 14 and 15 in Section B in DP 7876, commonly known as 153 Parramatta Road, Homebush. The total DA site area is 1,756 m2.

5. The site has a frontage to Parramatta Road of 30.18 metres and this is the only street frontage.

6. The site is generally regular in shape; and approximately 60 metres deep.

7. The site is part of land which has the benefit of a previous consent DA2013/075 approved by the Council on 19 November 2013 for the demolition of existing structures and construction of 1 x 6 storey residential flat building fronting Hillcrest Street and 1 x 13 storey mixed use development at 153 Parramatta Road, comprising a total of 70 residential units and also 5 commercial tenancies on the ground floor above 3 levels of basement car parking.

The locality:

8. The site forms part of the Parramatta Road Corridor which is well connected to the existing public transportation network and which has been zoned for mixed use and high density residential development under Strathfield Local Environmental Plan 2012.

9. The surrounding streetscape is a precinct which is undergoing transition from low density residential, and light industrial and commercial uses, primarily characterised by car sale yards and mechanical workshops, to a medium and high density residential area with commercial ground floor uses. A number of medium to high density residential developments have been approved and/or constructed within the vicinity of the site.

The statutory controls:

10. The relevant statutory controls are:

• State Environmental Planning Policy No.55 – Remediation of Land (SEPP 55)

• State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)

• State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development

Apartment Design Guide (June 2015)

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

• Strathfield Local Environmental Plan 2012 (SLEP)

• Strathfield Development Control Plan No. 20 - Parramatta Road Corridor

• Strathfield Consolidated Development Control Plan 2005, specifically:

Part H - Waste Management

Part L - Notification of Development Applications

Overview

11. The subject site has a frontage to a classified road (Parramatta Road) and as such clause 101 of the SEPP (Infrastructure) 2007 applies.

12. Clause 102 of the SEPP (Infrastructure) 2007 also applies and the impact of road noise or vibration on the residential development has been considered.

13. The proposed development includes 105 car parking spaces with access to Parramatta Road which is a classified road. As such, the proposal is deemed 'Traffic Generating Development' under clause 104 and Schedule 3 of the SEPP (Infrastructure) 2007.

14. The proposal includes a residential flat building as relevantly defined in SEPP 65 and as such its provisions apply. Specifically, SEPP 65 in its current form applies as amended by Amendment 3 of that Policy. The Development application was lodged on 25 June 2015. Amendment 3 to SEPP 65 was published on the NSW Legislation website on 19 June 2015 and commenced one month following its publication being 17 July 2015.

15. By virtue of clause 31(3) of SEPP 65, the current Policy applies as amended by Amendment 3 because the development application has been made or submitted after its notification and it has not been finally determined by the Court before the commencement of that amendment.

16. The provisions of the Apartment Design Guide (June 2015) apply accordingly.

17. The DA site is zoned Mixed Use B4 under SLEP and as such mixed use development is permissible in the zone. The site is located on a zone interface with an adjoining High Density Residential R4 zone immediately to the north of the site.

18. The DA site is identified as a part of a “key sites area” numbered Key Site 16 (KS 16) on the Key Sites Map (KS Map) forming part of SLEP. KS16 is a consolidation of four allotments including the three allotments the subject of the applicant's proposal and the additional allotment being 16 Hillcrest Street (lot 8 section B, DP 7876), which is 10.06m wide and 407m2 in area.

19. The Council contends that the key site provisions of SLEP seek to promote the orderly and economic development of land through site consolidation and incentives and reinforce the hierarchy of centres and nodes through built form and that the incentive height and/or FSR controls provided by SLEP are available only where the relevant consolidation pattern on the KS Map is achieved.

20. The configuration of KS 16 is such that vehicular access is able to be provided from Hillcrest Street rather than Parramatta Road.

Issues:

21. The Council raised 9 contentions as grounds for refusal of the DA. These can be broadly grouped under the following 4 contentions:

1. The bonus height and floor space ratio (FSR) development controls under clause 4.3A and 4.4A of SLEP do not apply to the proposal, and accordingly the proposal should be refused.

2. The DA has not satisfied the requirements of clause 4.6 of SLEP with respect to the Applicant’s Requests to contravene the development standards in clauses 4.3 and 4.4 of SLEP.

3. The DA has not satisfied the requirements of clause 101(2)(b) of SEPP (Infrastructure) as a result of the design of the vehicular access to the DA site from Parramatta Road;

4. The proposal fails to comply with SEPP 65 and the minimum standards recommended by the Apartment Design guide (June 2015).

5. The proposal will adversely compromise the development potential of 16 Hillcrest St;

Compliance with SLEP

22. The applicant contends that the development standards for Height and FSR in clauses 4.3A and 4.4A apply to the proposal. The council submits that they do not. The most important provisions of SLEP for present purposes are clauses 4.3, 4.3A, 4.4, 4.4A, 4.6 and 6.9, which are relevantly in the following terms:

4.3 Height of buildings

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

(a) to ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area,

(b) to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area,

(c) to achieve a diversity of small and large development options.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map .

4.3A Exceptions to height of buildings (Parramatta Road Corridor)

Despite clause 4.3, the height of a building on land in “Area 1” identified on the Height of Buildings Map that comprises a key site shown in Column 1 of the Table to this clause and is identified as a key site on the Key Sites Map is not to exceed the maximum height shown opposite in Column 2.

Column 1	Column 2
Key site number	Maximum height
75	20 metres
4, 7, 9, part of 10, 12, part of 19, 23, 24, 38-41 or 53	22 metres
Part of 8, 14, 33, 46, or 56	26 metres
Part of 11, 17, part of 19, 25, 26, 30, part of 43, part of 44, part of 45, 47-49, 60, part of 62, part of 64, part of 65, part of 66, 67-69, part of 76, part of 77, 80-82, 85 or 86	29 metres
27, 29, 52, part of 70, part of 78, part of 87 or 91-93	32 metres
18, 51, 57 or part of 71	35 metres
16, part of 31, part of 83 or part of 88	42 metres

4.4 Floor space ratio

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

(a) to ensure that dwellings are in keeping with the built form character of the local area,

(b) to provide consistency in the bulk and scale of new dwellings in residential areas,

(c) to minimise the impact of new development on the amenity of adjoining properties,

(d) to minimise the impact of development on heritage conservation areas and heritage items,

(e) in relation to Strathfield Town Centre:

(i) to encourage consolidation and a sustainable integrated land use and transport development around key public transport infrastructure, and

(ii) to provide space for the strategic implementation of economic, social and cultural goals that create an active, lively and people-orientated development,

(f) in relation to Parramatta Road Corridor-to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map .

4.4A Exceptions to floor space ratio (Parramatta Road Corridor)

Despite clause 4.4, the floor space ratio of a building on land in “Area 1” identified on the Floor Space Ratio Map that comprises a key site shown in Column 1 of the Table to this clause and is identified as a key site on the Key Sites Map is not to exceed the floor space ratio shown opposite in Column 2.

Column 1	Column 2
Key site number	Floor space ratio
1-4, 6, 34, 35, 38-41, 47-50, 53, 63 or 67-69	2:1
7, 9, 10, 28, 46, 52, 54, 58, 60, 61 or 72-74	2.25:1
12-14, 17, part of 19, 22-24, 36, 37, 51, 56 or 57	2.5:1
5, 8, 11, 27, 33, 43, 44, 75, 79-82, 84-86, 88-90, 92 or 93	2.7:1
15, 16, 18, part of 19, 59, 62, 64-66, 83, 87 or 91	2.95:1
45 or 55	3.1:1
20, 21, 25, 26, 29-32, 70, 71 or 76-78	3.15:1

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.

……

(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

6.9 Additional provisions for development in Parramatta Road Corridor

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

(a) to encourage a mix of commercial and residential land uses,

(b) to encourage the integration of developments that require large floor areas with other land uses.

(2) This clause applies to land identified as “Key Sites Area” on the Key Sites Map.

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

(a) the general mix of residential and non residential land uses in the area, and

(b) the vertical and horizontal integration of land uses in the area.

Evidence:

23. The hearing occupied 3 days and commenced with a view on site in the presence of the parties. Mr. L. Moses, an objector attended the view. He made an oral statement on site in which he summarised his own objection and that of his parents’ company reflecting submissions that were made to the Council during the public notification process for the DA. Also, Mr. B. Daintry, town planner and Mr. C. Mclaren, traffic engineer attended on behalf of M. & B. Moses Investments Pty Ltd (the company) the owner of the adjacent property at 16 Hillcrest Street, Homebush. Both experts had earlier presented written statements by way of objection to the Council. Mr. Moses and the company were not a party the proceedings and neither he nor the company had been given leave to file expert evidence. The applicant’s counsel objected to Messrs. Daintry and McLaren giving expert evidence. Following discussion it was agreed that I would allow them to summarise the opinions they had expressed in the written submissions that they had lodged with the Council on behalf of the company. The submissions raised were:

• Loss of opportunity to consolidate 16 Hillcrest Street with 153 Parramatta Road;

• 16 Hillcrest Street was included in KS 16 to enable vehicular access from Hillcrest Street (Mr Daintry);

• Isolation of 16 Hillcrest Street;

• Proposal failed under clause 4.6 of SLEP and on the merits (Mr Daintry);

• Unsafe and unsatisfactorily vehicular access from Parramatta Road, contrary to planning objectives of key sites provisions (Mr McLaren).

24. The expert evidence of the parties for which leave had been given was called from town planners Mr. W. Nino for the applicant and Ms. S. Olsen for the Council; Urban Designers Mr.G. Baker for the applicant and Mr. R. Ollsen for the Council; and traffic engineers Mr. P. Corbett for the applicant and Mr. J.R. Hollyoake for the Council. All experts gave concurrent evidence and were cross-examined.

First Issue:

25. It is convenient to begin by addressing the first issue and in particular the fundamental question whether the applicant is entitled to the benefit of the height and floor space ratio (FSR) of buildings provisions in clauses 4.3A and 4.4A of SLEP (set out above) which I will refer to jointly as the “A” clauses.

26. Part 4 of SLEP contains the principal development standards. Relevant to the present case, the generally applicable development standards for the maximum height of buildings and maximum FSR of buildings are contained in clauses 4.3 and 4.4 of SLEP. These provisions are in the form of simple development standards as defined in s 4(1) of the Environmental Planning and Assessment Act, 1979 (EP&A Act) and do not operate conditionally or as prohibitions on development. These provisions refer to Maps which form part of SLEP. In the case, for example, of clause 4.3 the Height of Buildings Map (the HOB Map) shows by distinctive letters, colours and numbers the maximum height of buildings that may be erected, subject to development consent, on particular land. In the case of clause 4.4 the FSR is similarly shown on a FSR Map.

27. The “A” clauses operate as exceptions to clauses 4.3 and 4.4 by providing for greater height limits and floor space limits in certain circumstances. The “A” clauses are also development standards but within them there are three distinct requirements to be fulfilled in order to trigger their benefits. If the requirements are fulfilled the limitations generally applicable under clauses 4.3 and 4.4 are able to be overridden by the large increases in allowable building Height and FSR under the “A” clauses. The requirements are directed to the location and categorization of the land that is proposed to be developed. It is useful to focus on the terms of the height clause 4.3A, because clause 4.4A has the same structure.

25. The first requirement is the locational requirement: the land that is the subject of a development proposal must be ‘in "Area 1" identified on the HOB Map’. That area is depicted in solid blue outline on the relevant sheet of the HOB Map. There is no dispute that the land the subject of the development application (the DA site) is situated within Area 1. It is to be noted that this is the only reference to the HOB Map in the clause and that it relates only to the first requirement of the clause.

26. The second requirement is that the land “comprises a key site shown in Column 1 of the table” to the clause. This is easily identified as the table contains two columns, the column 1 lists groups of key site numbers and the second column matches them with a maximum height in metres. Relevant to this case the Key Site number 16 appears in column 1 and beside it column 2 assigns the maximum height of building of 42 metres for that key site number. There is, however a dispute as to the meaning of the word "comprises" in the clause and the applicant claims there is an ambiguity arising out of the fact that the words “part of” appears in front of the key site numbers.

27. The third requirement is that the land “is identified as a key site on the Key Sites Map”. I will refer to that map as “the KS Map” and generally to the phrase Key Site as “KS”.

28. The KS numbers in the table to clause 4.3A coupled with the KS map alone enable one to identify the precise location of any whole numbered KS in the table. The reference in the third requirement to the “KS Map” addresses this by defining each KS pictorially on the KS map being individual areas of land on which a building may be erected up to the designated maximum height nominated in the table to clause 4.3A. In this way it is possible to precisely identify land that may be developed to the given height because it is required to be land that “is identified as a key site on the KS Map”. Only then can the development standard in clause 4.3A apply “despite clause 4.3” of SLEP.

29. Clause 4.3A contains two references to “a key site”: first, the land to be developed up to the maximum height under the clause must “comprise” a KS in the table and secondly be identified as a KS on the KS Map. The base map over which the key sites areas are printed is the cadastral map of Area 1. This enables the reader to accurately identify the position of each of the lots that together make up each of the “Key Sites Areas” on the KS map. The locational description of the land is by KS number and KS area within the broad “Area 1” and not otherwise.

Applicant’s submission:

33. As mentioned earlier, the development site in the applicant’s DA is part of KS Area 16. The whole of the KS area is four allotments but the DA site is only three of the four lots. The fourth lot is known as 16 Hillcrest St. By reference to the KS Map, the blue out line which encloses KS Area 16 shows that 16 Hillcrest St has a frontage to that Street on the western boundary and its eastern (lot) boundary is a common boundary with the remainder of KS 16.The Council argues that clause 4.3A requires the whole of a key site before clause 4.3A can apply.

34. The applicant’s senior counsel focused on the phrase “that comprises a key site” in clause 4.3A. Reference was made to the Macquarie Dictionary (6th edition) and the New Shorter Oxford Dictionary for the meaning of “comprises”. It was submitted that “there is a tension between the concept of “comprise“, which means on the one hand “includes” and on the other “consists of. . .” Reference was made to Walker Corporation Pty Limited v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210, (2012) 82 NSWLR 12 in which the Court of Criminal Appeal referred (at [24]) to the analysis by Lindgren J in General Clutch Corporation v Sbriggs Pty Limited, (1997) 38 IPR 359 at 373-376, noting that the correct interpretation of the word depends on the context in which it is used. Reliance was placed by the applicant on several contextual ‘indicators’ for the interpretation of the A clauses which were said to lend support to its submission that it was not necessary to include the whole of KS 16 in the D/A site in order for it to gain the benefits of the “A” clauses.

Relevant Principles of Interpretation:

35. Environmental planning instruments under the EP&A Act are statutory instruments (s.3 Interpretation Act 1987) and should be interpreted in accordance with the general principles of statutory interpretation: Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 146 LGERA 313 at [36] .A construction should be preferred that is consistent with the language and purpose of all the provisions of the instrument: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at[69].

36. In some local environmental plans definitions and expressions are used less than precisely with the result that some flexibility has to be given to the words used , in order to make sense of them. Where the drafter has been less than fastidiously precise in his or her choice of language, only limited weight may be given to relatively minor features: cf Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379 at [54] per Leeming JA, with whom Macfarlan JA agreed, both agreeing with Basten JA. Leeming JA adopted the statement of Lord Reid in Gill v Humberstone & Co Ltd [1963] 3 All ER 180 at 183 that the regulations in that case “ought to be construed in the light of practical considerations rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament.”

37. The process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky (supra) at [69]. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”: Project Blue Sky at [70}. Further, the Court must strive to give meaning to every word of the provision: Project Blue Sky at [71].

38. The Applicant’s primary argument is that clause 4.3A does not require that land proposed to be developed must be the whole of a Key Site in order to enjoy the incentive of the bonus maximum building height in the table to the clause. I have discussed above the structure of the clause and the three requirements that must be satisfied in order to engage the provision. The third requirement is that the land to be developed “is identified as a key site on the KS Map”. All the Key Site areas of land on the key sites map identified as individually numbered key sites are whole key sites as the thick blue line around their perimeter shows on the KS Map, as does the legend to the KS Map where each key site is described as a “Key Sites Area”. The Macquarie Dictionary defines the verb “identify” relevantly as:

1. to recognize or establish as being a particular… thing ;

2. to make, represent to be, or regard or treat as the same or identical;

3. the state or fact of being the same one.

Thus, only a development site that can be recognised as a key site on the KS Map or is established by that map to be such, or if the development site and the KS are the same or identical or “the same one” will meet the third requirement.

39. Selection of part of a key site as the development site clearly does not answer the description of “a Key Site on the Key Sites Map”, nor is it “identified” as a key site on that map. Three out of four parts of KS16 is not the “same one” as KS16 and KS16 is not the “same one” as the DA site proposed.

40. In that context, the word “comprises” in the second requirement is used in the sense of “consists of” or as the equivalent of “composed of”. The Applicant’s substitution of “includes” would read: ‘land that includes a KS shown in the table to clause 4.3A and is identified as a KS on the KS Map is not to exceed the maximum height in column 1.’ This makes no sense. It does not identify the proposed development site in terms of the clause. The use of ‘Includes’ indicates a non-exclusive description of an area of land. The DA site is only part of a single KS and contains no land other than the three lots mentioned. Also the repeated reference to a ‘key site in the Table’ unambiguously in this case is referring to the whole numbered key site 16.

41. Further it is important to note that the second and third requirements make no reference at all to the HOB Map. Rather, the requirement for identification of the ‘land’ is as a key site on the Key Sites Map coupled with reference to the Table to clause 4.3A.

42. The applicant's senior Counsel argued that the decision of McClelland CJ at CL in the Walker Corporation case (supra) is an authority which assists in determining in the present case that the word "comprises" in clause 4.3A is used in the sense of "includes" and not in the sense of "consists of". There are a number of reasons why this does not solve for present purposes the inherent ambiguity of the word standing alone. First, McClelland CJ referred at [24] with evident approval to the "exhaustive analysis" of Lindgren J at 373-376 in the Sbriggs decision (supra), regarding the meaning of the word ‘comprises’. Having considered numerous dictionary definitions and works of English usage, Lindgren J held:

"an exercise of construction of the present kind is not usually determined by authority, but authority can bear upon it".

In the Walker Corporation case, McClelland CJ added:

" as Lindgren J’s analysis makes plain, the correct interpretation of the word "comprise" depends upon the context in which it is used".

43. In General Clutch (supra) Lindgren J was concerned with the interpretation of a claim in a patent which was alleged to have been infringed. He held that "comprising" in the phrase "a spring clutch comprising….[a list of parts]”meant "consisting of", "made up of", “composed of", or "constituted by". Lindgren J cited Chain Bar Mill v Wild (1939) 56 RPC 446 in which Sir John Bennett VC said in another Patent case:

"one would, I think, most naturally expect the word "comprising" to be followed by several items making up the whole"

and concluded that it meant  “consisting of".

44. The use of the word was described by Lindgren J as a construction in which the subject of the verb was the noun indicating the whole as distinct from the parts and that it prima facie means "consists of", "is made up of", "is composed of” or “is constituted by"; but it is a misuse of language where the parts are the subject of the verb.

45. In the Walker Corporation case "comprises" was used in a different context. The case was an appeal against a conviction for the offence of causing the clearing of indigenous native vegetation without consent. Native vegetation was defined in the legislation as indigenous if it comprises a species of vegetation that existed in the State before European settlement. The prosecutor successfully argued that the offence of unlawful clearing of land was committed where an entire area cleared contained one or more of several species of indigenous native vegetation, even if not exclusively made up of such vegetation. The Court of Criminal Appeal accepted (at [33]) that a purposive interpretation required that the word “comprises” be construed as “includes” because to construe is as meaning “consists of” in that case would frustrate the Act’s stated objectives of protecting native vegetation and preventing broadscale clearing.

46. In the present case the relevant construction is: "a building on the land that comprises a key site shown in column 1 of the table…“where column 1 is a list of available numbered Key Sites. The subject of the verb "comprises" is the land and the object is a key site listed in column one. The subject of the verb is the whole of the land in the development site in question and the object is one or perhaps more (see Interpretation Act s.8(b)) of the key sites listed. This is not the same construction as in General Clutch or Walker Corporation.

47. The subject here is the physical land, and the object is the corresponding key site number for the same land in a document (the table). It is comparable to the construction that has been for more than 100 years and is still in use in the Real Property Act 1900 :(see s.33(5)) – “land comprised in a Certificate of Title” of a certain volume and folio or folio identifier. This is a complete reference to or definition of physical land that is recorded in a numbered document. The physical land is the subject of the verb and the numbered land referred to in the document “consists of” the same land as the subject. Similarly, in its context within clause 4.3A "comprises" means "consists of" and not "includes".

48. Further, the immediate context within clause 4.3A includes the third requirement which shows that the area of land referred to in the table by number must be a whole key site on the key sites map.

49. The Applicant’s argument places much weight on the HOB Map. But this is not directly relevant to construing the second and third requirements. The argument seems to be that there is an anomaly created by the presence in the Table to clause 4.3A of the words “part of” in front of several of the key site numbers and, it is said, the identification by the map-maker of the maximum height of 42 metres on the HOB map of only the three lots in key site 16 that constitute the DA site. These are said to be textual indicators that ‘the failure to include [in the Table] the words “part of” for KS16 is probably ‘a drafting error’.

50. There are difficulties with these propositions. There are three separate questions which need to be considered separately: first, whether clause 4.3A requires “the land” to be developed to consist exclusively of whole key sites, secondly, the relevance of the HOB Map to that enquiry; and thirdly, the interpretation of the words, marks, colours and symbols on the HOB Map, if it is relevant.

51. As to the first of these questions, for the reasons already given as well as a proper consideration of the object, scope and purpose of clause 4.3A gleaned from it’s terms and context indicates that it must be answered in the affirmative. The clause does require the land to consist of one or more whole key sites as identified in the KS Map. The construction of clause 4.3A and the word “comprises” which best harmonises with the other provisions of SLEP is not only the literal meaning but also the meaning derived from context and purpose. There are no stated aims or objectives in clause 4.3A but it is directly linked to clause 4.3 which provides the standard height limit being the lower of the two tiered height controls. Clause 4.3 does have stated objectives. Relevantly, these objectives include:

1. to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area,

2. to achieve a diversity of small and large development options.

As to objective (c) small and large development options are in effect set by the two clauses and does not in my opinion contradict or ‘undermine’ (b) which provides the opportunity for optimum height subject to a fixed maximum. This is not inconsistent with the exception for Key sites under clause 4.3A. Also, It is significant that a planned ‘consolidation pattern’ is tied to optimum height.

52. There are also express objectives for Key Sites in clause 6.9 of SLEP. The clause includes a prohibition on the grant of development consent for development on land identified as “Key Sites Areas” on the Key Sites Map unless the consent authority is satisfied that the development will contribute to (a) the general mix of residential and non-residential land uses in the area, and (b) the vertical and horizontal integration of land uses in the area. The objectives of the clause are to encourage a mix of commercial and residential land uses, and to encourage the integration of developments that require large floor areas with other land uses. This provision clearly indicates that mixed use development on land identified as a “Key Sites Area”on the Key Sites Map, that is to say, a whole key site, was the form of development that is encouraged.

53. As to the applicant’s submission that if only whole Key Sites were meant to enjoy the higher maximum height, a 42 metre building would be allowed on 16 Hillcrest Street and that this could not be the intent of the provision: It is not accurate to say that such a building could be erected on the Hillcrest allotment alone. The maximum height of building is a development standard which applies to the Key sites Area as a whole. Where the highest parts of it are located depends on the design in a particular development application. This is because if a developer chose to seek consent under clause 4.3A to a building up to the maximum height it would need to satisfy the consent authority that merit assessment under s. 79(c) of the EP&A Act justified approval. In any case there is no building proposed to be erected by the applicant on 16 Hillcrest Street as it is not included in the DA site. It is also to be noted that Clause 4.4A, the floor space provision and table is in the same format as clause 4.3A, lists Key Site16 as a whole Key site number in the table and assigns the single floor space ratio of 2.95: 1 to the whole of it. This also indicates by comparison that there was no drafting error in 4.3A fixing a single maximum height to the same Key Site.

Argument as to the words ‘part of’ in the table to cl. 4.3A:

54. This leaves the question of whether the argument based on the presence of the words “part of” in front of 19 of the Key Site Numbers in column 1 of the Table to clause 4.3A assists the applicant. Having determined that the clause requires an applicant seeking to obtain the benefit of the exceptional height limit to, at the outset, meet each of the three requirements of the clause and in particular to demonstrate that a development application under the clause must be with respect to land that is the whole of a Key Site Area, it is strictly unnecessary to explore the concept of development on part of a key site and to do so by reference to the HOB Map. As discussed earlier the HOB Map was relevant to the first requirement and to determining whether the land the subject of the DA was within Area 1 on the map. This was not a matter that was the subject of any dispute – it was common ground that the three lots making up the DA site were within Area 1. Beyond that, the HOB Map was not relevant, at least in this case, to the determination of the meaning and effect of the second and third requirements. However, in case it is suggested otherwise I will briefly state my views.

55. The applicant asserted that the presence of the words ‘part of’ coupled with a KS number in the table to clause 4.3A shows that the clause could not have been intended to apply only to developments that are made up of whole Key Sites Areas. The claim is that contextual proof of this is available in the case of Key Site 16 by reference to the HOB Map where it indicates the maximum height for the 3 lots the subject of the DA is 42 metres, but not for the part of the key site that is 16 Hillcrest Street. From this the applicant concludes that it could not have been the intention of the drafter to require whole key site areas for development and that “comprises” in the second requirement must mean ‘includes’.

54. I do not accept this argument. It fails to give a consistent meaning to all the words of the clause and SLEP as a whole or appropriate weight to the three requirements and the table to the clause. With respect to those Key Sites Areas referred to in Column 1 of the table which are preceded by “part of”, the maximum height given by the table applies only to a part of the particular Key Sites Area. The precise location of the part to which the maximum height in the table applies is not identified by the clause or the table but can be found on the HOB Map. Key site 19 shown on the KS Map is exceptional. It has frontages to both Parramatta Road and Park Road. KS 19 appears in the table to clause 4.3A twice, both preceded by "part of". The two parts account for the whole KS area. The table to clause 4.3A appears to show the Parramatta Road frontage lots as having a maximum height of 29 m (predominantly edged yellow) and the other frontage 22 m (predominantly red edging). Apart from the instance of KS 19, the remainder of a Key Site where there is a specified “part of” the Key Site in the table is governed by clause 4.3. This is because the overriding of clause 4.3 by clause 4.3A is only to the extent of the part of the KS area indicated in the table and the HOB Map.

55. In the present case only KS 16 needs to be considered. Reference to KS 16 in the table is not preceded by ‘part of’. The mere fact that there are maximum heights for whole numbered Key Sites listed in the table and that there are maximum heights for ‘part of’ other Key Sites does not indicate that the dichotomy was not deliberate or that it is inconsistent with the second or third requirements for the development site to be the whole of a key site. The maximum height in the table for KS 16 is 42 metres and this applies to the whole of the Key Sites Area. Practically speaking, it may be unlikely that this height would be sought to be exploited on the 16 Hillcrest lot in a development of the whole of KS 16. SLEP is a town planning instrument and it is obvious that the part of KS 16 that is 16 Hillcrest Street provides KS16 with the possibility of vehicular ingress and/or egress to the development on the Key Site, other than to or from Parramatta Road, a Classified Road, as well as for additional residential accommodation on the Hillcrest Street site as the 2013 development consent demonstrates.

Relevance of the HOB Map:

58. The Applicant states that the HOB Map assigns to 16 Hillcrest St. a maximum building height of 20 metres.

59. If the 3 requirements of clause 4.3A are not satisfied then development under clause 4.3A cannot occur and the whole of KS16 would have the maximum heights under clause 4.3 and the HOB map, which is 22 metres (brown colour with “R2”) for the three lots fronting Parramatta Road and 20 metres (faun colour with “Q)” for 16 Hillcrest Street according to the HOB Map and its main legend which would be expressly engaged by clause 4.3. If, as is the position in the present case, the DA site is limited to the 3 lots fronting Parramatta Road, on the view I take the 3 requirements in clause 4.3A cannot be satisfied with the result that the maximum height for buildings is 22 metres to Parramatta Road and 20 metres to 16 Hillcrest Street although Hillcrest Street would not be relevant as it is not part of the DA site.

60. It is relevant to note the structure of the HOB Map and the two parts of its legend. The first part lists the maximum building heights using 19 different colours with distinctive letters, beside each of which there is the applicable height in metres ranging from zero to 54. These are clearly the maximum heights for buildings referred to in Clause 4.3(2) of SLEP. Heavy blue edging provides the outline of “Area 1”on the map. Beside the legend for this the words “Refer to Clause 4.3A”appear. Beneath that is the lower part of the legend headed in bold print: ‘(In certain circumstances refer to clause 4.3A)’. There is then a further list of 7 areas each edged in a distinctive colour beside each of which is a corresponding height in metres ranging from 20 to 42 and the words “ –Refer to clause 4.3A”.

61. The arrangement of the HOB Map, especially the coloured edged areas on the map, and the references to clause 4.3A expressly acknowledge the primacy of clause 4.3A and the Table in it, over the HOB Map. In the present case, the maximum height of buildings for Key Site 16 is 42 metres. To the extent, if at all, the map is inconsistent with that limit, the clause is intended to prevail. It operates as the “leading provision” in accordance with the decision in Project Blue Sky (Supra) at [70] and the map must give way to it. Relevantly, the table to the clause lists Key Site 16 beside the maximum height of 42 metres. The words “part of” are absent. The second and third requirements of clause 4.3A are not satisfied and the clause simply does not apply. Although it is not strictly necessary to decide, in the cases where the table to the clause refers to one ‘part of’ a Key Site and assigns a maximum height to it, the residue of the land in the Key Site Area has the maximum height given under clause 4.3. This is because the words “Despite clause 4.3” at the beginning of clause 4.3A enable clause 4.3A to take precedence over 4.3 with respect only to the one part of the key site to which 4.3A applies. But this cannot occur to the remaining part of the key site that is not referred to in the table. If the applicant’s contention that the developer is free to select whichever part of a key site listed in the table as a whole key site it chooses to develop were correct, which in my opinion it is not, this would not preserve the integrity of the set of controls in these provisions. There is no basis for the assertion that there has been a drafting error in clause 4.3A.

Interpretation of the HOB Map:

62. In order to address the applicants arguments, it is instructive to attempt to construe the lines, colours and symbols on the HOB Map that might apply to 16 Hillcrest Street if it were subject to clause 4.3A and could be separately developed. However, ignoring the fine black cadastral boundaries of lots which are common to all the maps, and the heavy black line on the western boundary, which, it is common ground, is not a line to which the legend applies at all, the Hillcrest property has faun colour and the letter "Q", which clause 4.3 and the main part of the legend indicates, only relate to development under clause 4.3. Disregarding that, there are only two coloured edged lines to the single lot that is the 16 Hillcrest Street land. It is to be noted that the map-maker has adopted the convention of overlaying the colours, letters and numbers which signify the clause 4.3 height limits with thin coloured lines marking the perimeter of land to which clause 4.3A might apply. Further only one coloured line per boundary is used in every instance. On the eastern boundary of the 16 Hillcrest Street land there is a purple line signifying the 42 metre maximum height. The northern boundary of 16 Hillcrest Street is coloured orange signifying 26 metres maximum height, however this is one side of an orange edged rectangle marking out Key Site 14. The southern and western boundaries of the property are uncoloured. Contrary to the Applicant’s submission, it is by no means clear on the proper construction of the HOB Map that it designates a maximum height other than 42 metres. However, it is unnecessary for present purposes to determine that question.

63. The issues in this case would not be resolved by adopting the Applicant’s interpretation of clause 4.3A. Again, if small or large parts of Key Sites were allowed to be developed at the choice of developers, tall buildings up to 42 metres would prima facie be permissible on small areas selected by the developer without any adjustment to the maximum height (or FSR) on that account. The evident planning aspirations for site consolidation and the assignment of heights and floor space in KS Areas could be frustrated. I therefore reject the Applicant’s construction of clause 4.3A. It follows that, unless the submissions regarding clause 4.6 of SLEP are upheld, development consent would have to be refused.

Issue 2: Variation of development standards in clauses 4.3 and 4.4 of SLEP

64. In case the court rejected the Applicant’s contention that it was entitled to rely on the “A” clauses the applicant made two written Requests for the purposes of clause 4.6 of SLEP seeking to justify the contraventions of the general development standards in clauses 4.3 and 4.4 of SLEP. As finally amended the Requests dated 25/2/2016 were relied upon by the Applicant. The most relevant sub-clauses of clause 4.6 are, for convenience, repeated in the following paragraphs.

65. The objectives of clause 4.6 are set out in sub-clause 4.6(1):

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

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

66. Development consent may, subject to clause 4.6, be granted for development even though the development would contravene a development standard imposed by SLEP: Clause 4.6(2).

67. Sub-clause 4.6(3) provides that development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written Request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

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

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

68. Also, development consent must not be granted unless the consent authority is satisfied that:

1. the applicant's written request has adequately addressed the matters required to be demonstrated by sub-clause (3), and

2. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, [Also, the concurrence of the Secretary must be obtained.

69. The applicant's written Requests are contained in annexures D and E in exhibit 2. Exhibit 2 also contains the Planners Joint Expert Report (PJR) of Mr. W Nino, the applicant's town planner, and Ms Sophie Olsen, the Council's town planner. The written Request in annexure “D” is to the development standard for Floor Space Ratio in clause 4.4 of SLEP. It begins by identifying the objectives of clause 4.4 noting that the floor space ratio standard for the DA site at 153 Parramatta Road, Homebush is 1.8:1 according to the FSR Map. With a site area of 1,756.5 m², the permitted gross floor area at 1.8:1 is 3,161.7 m². The request seeks consent for an FSR of 2.95:1 or a gross floor area of 5180 m² which clearly does not comply with the FSR standard under clause 4.4 but would have complied with the FSR standard under clause 4.4A had the land at 16 Hillcrest Street been able to be included in the DA site.

70. The written request in annexure “E” is to the development standard for Maximum Height of buildings under clause 4.3 of SLEP. It begins by identifying that the request is for consent for a thirteen storey building that is 44.7 metres in height. This is 22.7 metres greater in height than that permitted by the standard which is 22 metres.

The Request with respect to Height of building (clause 4.3):

71. In this Request Mr. Nino includes the following points in Annexure “E” of exhibit 2 with respect to the first objectives of the height standard (compatibility and appearance)

• the site has already been granted development consent for a height of 44.7 metres or 13 stories under DA 2013/075, although the approval includes the land at 16 Hillcrest Street;

• a building that complied with clause 4.3 would not be reflective of the desired future character as illustrated in a study obtained by the Council before the making of SLEP in 2012. It was called the Parramatta Road Corridor Urban Design Study of 2011 prepared by Sustainable Urbanism and Strathfield Council (The Study). It shows a prospective building on the site as a tower of roughly similar proportions to the proposal;

• The vision for the corridor under SLEP and the Study is for a 13 storey tower for the site and a 7 storey tower would nor reflect the emerging character for the precinct of a high density area;

• the proposal satisfies at the least the first alternative of 5 set out by Preston CJ in Whebe v Pittwater Council [2007] NSWLEC 82 of establishing that compliance with a development standard is unreasonable or unnecessary in order for an objection to be well founded. This is, that compliance with the standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding non-compliance with the standard.

• SLEP and the Study envisage a 13 storey tower with podium where the podium forms a consistent street wall to Parramatta Road and the tower proposal would harmonise with that form. If there is no tower and only a 7 storey podium the height would be incompatible, not consistent with the desired future character and would not result in a better outcome for the site.

• the proposed height and scale would not increase beyond that which would be contemplated for the site given the available controls .

• a 44.7 metre building will improve the appearance of the area and streetscape

72. As to the second objective of the height standard which is to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area, Mr. Nino’s analysis included the following points:

• three lots are to be consolidated to form the DA site and further consolidation is not possible;

• the owner made reasonable attempts to obtain 16 Hillcrest Street and it’s non-inclusion does not compromise the second objective because 16 Hillcrest Street is not isolated and can be developed on it’s own or consolidated with an adjoining lot facing Hillcrest Street;

• It would be unreasonable in this particular case not to permit achievement of the maximum sustainable height under clause 4.3A given the existing approval under DA 2013/075;

73. As to the third objective -to achieve a diversity of small and large development options, Mr. Nino noted:

• the proposal will deliver a large high density development option;

• there are no privacy or amenity impacts to adjoining properties and the development retains the approved height under DA 2013/075.

74. As to the B4 Zone objectives- to provide a mixture of compatible land uses; to integrate suitable business, office, residential, [and] retail …development in accessible locations so as to maximize public transport patronage …; to facilitate mixed use urban growth around ….transport corridors …..; to provide local and regional employment and live and work opportunities: Mr. Nino included the following points:

• the proposal is for a mixed use development;

• 72 home units will be provided in an accessible location;

• there is a mix of 1,2 and 3 bedroom apartments and two ground floor commercial tenancies that will assist in activating the street frontage;

• the proposal complies with the objectives of the zone.

• The proposal satisfies the criteria under Wehbe (supra), with justification being particular to the circumstances of the application;

• there are sufficient environmental planning grounds that demonstrate that compliance with the development standard in clause 4.3 is unreasonable or unnecessary in the circumstance of the case

75. Based on the considerations canvassed by Mr Nino in Annexure E to exhibit 2 it was concluded that the proposal satisfies sub-clause (3) of clause 4.6 of SLEP, that the request adequately satisfied the relevant test to establish that compliance was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify the contravention of the height standard in clause 4.3 of SLEP.

76. As to sub-clause (4) and (5) of clause 4.6 the request asserts that it has adequately addressed the requirements that the development will be in the public interest because it will be consistent with the objectives of the standard and the zone. Also, the request referred to the objectives of clause 6.9 of SLEP. This was considered to be relevant because it applies to key sites and the DA site is within a key sites area. The objectives of the EP&A Act in section 5(a)(i) and (ii) were referenced noting that the development facilitates the orderly and economic use and development of the site. Finally, the request states that the numerical non-compliance is not contrary to any matter of State or Regional planning significance and that the concurrence of the Secretary was not required.

The Request with respect to FSR (clause 4.4):

77. A similar request was made for contravention of the FSR development standard in clause 4.4 of SLEP. In summary, Mr. Nino included the following points as to the environmental planning grounds that justified the contravention of the FSR standard:

• DA 2013/075 was approved by the Council on key site 16 in November 2013. The FSR was 2.95:1. The site in the consent included 16 Hillcrest Street and the approval included a 6 storey building on the part of the site that is 16 Hillcrest Street in addition to the 13 storey building on 153 Parramatta Road.

• the proposed general built form for the DA site under the present DA is said to be almost identical to the approval under DA 2013/075 with the exception of the proposed vehicle entry ramp from Parramatta Road and associated ground floor amendments;

• it is unreasonable and unnecessary to comply with clause 4.4 when the land already benefits from a consent under clause 4.4A to develop it in accordance with an FSR of 2.95:1.

• the site is unique in this respect and the grounds for the clause 4.6 request are particular to the circumstances of the proposed development and not grounds that would apply to any similar development in the vicinity;

• the proposal complies with the objectives of clauses 4.4 and 6.9 as elsewhere discussed; It also complies with the aims of SLEP in clause 1.2;

• the Study is referenced and from it, the high density mixed use aspiration for the area and the DA site will be achieved;

• the proposal reflects the desired future character of the area;

• the proposal would not achieve the planned optimum floor space capacity;

• the points made with respect to amalgamation and consolidation in the Height Request are repeated for FSR;

• there is no adverse planning outcome as a result of the requested FSR;

78. The objectives of clause 4.4 relevantly are to ensure dwellings are in keeping with the built form character of the local area; to provide consistency in the bulk and scale of new dwellings in residential areas; to minimize the impact of new development on the amenity of adjoining properties; in relation to the Parramatta Road corridor - to encourage a sustainable consolidation pattern that optimizes floor space capacity in the corridor;

Mr. Nino included the following points:

• he repeated the clause 4.3 submissions that compliance with the standard is unreasonable or unnecessary because the objectives of it are achieved notwithstanding the contravention;

• the proposal aligns with the desired future and emerging character of the area;

• as to minimizing impacts, acoustic impacts, overshadowing and solar access are acceptable, and there are no privacy or overlooking issues because building separation is suitable and apartments face away from proposed future apartments on adjoining properties by orienting them north-south;

• as to corridor issues:

• the objective of sustainable consolidation is achieved without the small site at 16 Hillcrest Street and results in a reasonable consolidation pattern;

• the Study is referenced to indicate that the site and adjoining sites are to take the character of a high density area as recommended in the Study;

• the proposal optimizes the floor space capacity that it can sustainably accommodate;

• there will be no effect on the sustainable consolidation of other lots and the proposal will deliver an optimum floor space capacity within the corridor;

• additionally, the objectives under clause 6.9 to encourage a mix of commercial and residential land uses and to encourage the integration of developments that require large floor areas with other land uses will be met;

• There are no public benefits from maintaining the development standard in clause 4.4 in this case.

79. It is claimed by Mr. Nino that the departure from the relevant standard can be supported as the application satisfies the first and third criteria in Wehbe (supra) as well as the decision of Pain J in Four2Five Pty Ltd v Ashfield Council (2015) NSWLEC 90. An application for leave to appeal to the Court of Appeal from that decision was dismissed, see (2015) NSWCA 248. Mr. Nino states that there are sufficient environmental planning grounds to justify the variation and that these grounds are particular to the circumstances of the proposed development as opposed to grounds that would apply to any similar development in the vicinity of the subject site. Some of the matters about which I am required to be satisfied before being able to grant development consent which contravenes the Height and FSR standards are those set out in clause 4.6(4)(a). One of them is that "the applicant’s written request has adequately addressed the matters required to be demonstrated by sub-clause (3)". In Randwick City Council v Micaul Holdings Pty Ltd (2016) NSWLEC 7, Preston CJ held at (38), (39) in relation to these provisions:

The two matters in sub-clause (3) are that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (para (a)) and that there are sufficient environmental planning grounds to justify contravening the development standard (para (b)). Hence, the Commissioner did not have to be satisfied directly that compliance with each development standard is unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the applicant’s written request has adequately addressed the matter in sub-clause (3)(a) that compliance with each development standard is unreasonable or unnecessary.

If I am satisfied that the Requests have adequately addressed the matters required to be demonstrated by sub-clause (3), as I am, and if the proposed development will be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the B4– Mixed Use Zone, as I find it is, then the requirements of sub-clauses 4.6(3) and (4)(a) are satisfied. As to sub-clause 4.6(4)(b), it is common ground that the concurrence of the Secretary was not required for the contravention of clauses 4.3 and 4.4, presumably because of clause 64 of the Environmental Planning and Assessment Regulation, 2000 and the issue of a Departmental Circular stating that concurrence with respect to clause 4.6 could be assumed: cf Lane Cove Council v Orca Partners (No. 2) (2015) NSWLEC 52 at [268], [269] and [273].

Conclusions as to clause 4.6 Requests:

80. Mr. Nino concluded that the requirements of clause 4.6 of SLEP are satisfied by virtue of the two Requests in respect of both clause 4.3 and 4.4 and that it is appropriate to permit the contraventions of both. Mr. Nino’s analysis of the clause 4.6 Requests was discussed in the PJR in exhibit 2 commencing with paragraph [13]. Ms. Olsen agreed "to some extent" with Mr. Nino's justification for the clause 4.6 objection to the FSR development standard in clause 4.4 of SLEP. Also, there was agreement that the proposed development would be consistent with the objectives in clause 4.4(1), sub-clauses (a) (dwellings in keeping with built form and character of the local area); (b) (consistency in the Bulk and scale of new dwellings in residential areas); and (c) (minimise the impact of new development on the amenity of adjoining properties). However, Ms. Olsen disagreed that the development satisfied objective 4.4(1)(f) – (In the Parramatta Road corridor to – encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor). Ms. Olsen also asserted that the "sustainable consolidation pattern” to which the objective relates is demonstrated in the KS Map and that the result will be isolation of 16 Hillcrest Street. I prefer the evidence of Mr Nino on these two issues for the reasons he has given in the Requests. I do not consider that 16 Hillcrest Street will be isolated. As to achieving optimised floor space capacity through a consolidation pattern, the proposal satisfied objective 4.4 (1)(f)

81. The council granted development consent to DA 2013/075 on 19/11/2013 for the mixed-use development of 13 stories on the DA site and a six-storey building on 16 Hillcrest Street Homebush, which is not part of the DA site in the present case. That consent remains valid. The present DA seeks consent for substantially the same development on the land at 153 Parramatta Road Homebush as was granted by the Council in it’s 2013 consent for KS16. It had an FSR of 2.95:1. This circumstance is particular to the land and the proposed development; the objectives of clause 4.4 and clause 6.9 are addressed in the Request. The application is said to be consistent with the six objectives of clause 4.4 and the objectives of clause 6.9. and clause 1.2 of SLEP (minimum lot size) The desired future and emerging character for the site and immediately adjoining site uses are for high density mixed-use development comprising podium buildings with residential towers. The 13 storey building already approved reflects the desired future character for the area. Insistence on compliance with an FSR of 1.8:1 would thwart the intent and objective of clause 4.3, 4.4 and, 6.9 of SLEP as well as not achieving the intent for development of the Parramatta Road corridor urban design.

82. Further, the amalgamation of 153 Parramatta Road and 16 Hillcrest Street is not necessary to achieve the desired form of development. The circumstance of this case where acquisition of part of a Key Site is not possible should not frustrate the development of the larger parcel particularly when, as in this case, it is capable of facilitating the provision of future parking needs for 16 Hillcrest Street if required. There is no planning reason why 16 Hillcrest Street could not consolidate with an adjoining lot facing Hillcrest Street. Evidence has been tendered to show that it could be developed with the adjoining lots at 18 – 22 Hillcrest Street. There is no adverse planning impact as a result of the proposed Height or FSR of the proposal. The shadow generated is acceptable. Satisfactory vehicular entrance and exit has been provided in accordance with Roads and Maritime Serviced (RMS) requirements and the apartments attain compliance with SEPP 65 and the Apartment Design Guide. On this basis it has been established that the approval of an FSR of 2.95:1 and the proposed Height provides a better planning outcome as it allows the subject lot to achieve the planned residential density for the locality without generating an adverse impact.

83. In the Five2Four case (supra) an important requirement of clause 4.6 was discussed by Pain J, namely, that there should be environmental planning grounds which are particular to the subject development and the land in order to justify the contravention of the development standard in question. I have already found, agreeing with Mr. Nino, that particular grounds exist in this instance. They include the acceptance in principle by RMS that vehicular ingress and egress to and from Parramatta Road for the development would be suitable subject to the access adopting an exclusively “left-in and left-out” arrangement. The traffic engineers agreed that this arrangement would operate with an acceptable traffic delay for the road and the property. This rendered the consolidation of 16 Hillcrest Street unnecessary. Coupled with these matters, it happened that consolidation of the now unnecessary property at 16 Hillcrest Street was no longer commercially possible; in addition the grant of the 2013 development consent had clearly indicated the councils acceptance of the architectural and environmental suitability of a building of the design, scale, height, and floor space of the subject proposal for 153 Parramatta Road alone. The combination of these factors are likely to be unique in the corridor, and provide strong reasons for allowing the contraventions of the two development standards as sought by the applicant. They in turn help to set a limit for the "appropriate degree of flexibility” of the two development standards for the purposes of clause 4.6.

84. In this context, the adjective "optimum", which the Macquarie dictionary defines to mean "best or most favourable" in the objective to clause 4.3 (1)(b) "to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area”; and in relation to the objective for the "Parramatta Road corridor- [in clause 4.4(1)(f) of SLEP] – to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor", where the verb "optimises" means "to make the best of" and "make the most effective use of" by the same dictionary, the approved building can be seen as fulfilling those aims.

85. These objectives are also relevant when considering the objectives of clause 4.6 set out in sub-clause (1) of "achieving better outcomes for and from development by allowing flexibility". There are no numerical limits on the degree of flexibility. In this case the proposal is for a relatively large increase above the base standards of height and FSR. I am guided by the tests applied to the express requirements of clause 4.6 as well as an evident intention to encourage consolidation to achieve the optimum or most favourable outcome height and to make the most effective use of floor space. Having regard particularly to these matters, I am satisfied that the degree of flexibility sought in this case by Mr Nino in the Requests is appropriate and should be allowed.

86. It was emphasised by the applicant that the better outcomes referred to are "for and from development” and that this is very important because "one has to have regard to this site and the opportunities for the developer of this site to accommodate the FSR and the height which the council has envisaged for the site and not just its impacts, but also the impact on this developer for developing this site to its potential use."

87. If I determine that the Requests are well founded under clause 4.6 and this leads to development consent being granted, then in my opinion that would be a better outcome than restricting development to the base development standards under clauses 4.3 and 4.4 in all the circumstances discussed.

88. It was concluded in summary by Mr Nino, that the purpose of the standard is being achieved by the development’s compliance with the objectives for FSR under SLEP, that the planning outcome is consistent with the desired future character of the area, that the density bulk and scale and built form is reasonably contemplated for the site, the resulting impacts from the numerical non-compliance are minimal, that restriction of the site to FSR of 1.8:1 would not be consistent with the intent of SLEP, the application represents a high-quality orderly and economic use and development of the site achieving an appropriate building form, that variation to this standard is in the public interest as it responds to the site constraints by an exceptional design and maintains a high level of residential amenity for the occupants and adjoining properties.

Issue Three: Does the DA satisfy the requirements of clause 101(2)(b) of SEPP Infrastructure

89. Clause 101 provides:

(1)The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emissions on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or all vehicle emissions within the site of the development arising from the adjacent classified road.

90. The respondent argues that clause 101 (2)(b) prohibits the grant of consent because the land has frontage to Parramatta Road, a Classified road, and that vehicular access to the site should be provided by a road other than the classified road. There is no basis for this assertion. The land the subject of the DA is the three lots known as 153 Parramatta Road, Homebush. It does not have a frontage to any road other than the Classified road.

91. The applicant submitted that the whole idea of clause 101 was to require a developer to use another road frontage where the land has a second frontage if that is a practicable option. There is no second frontage in the present case.

92. Clause 101 was considered by Preston CJ in Modern Motels Pty Limited v Fairfield City Council (2013) NSWLEC 138 (12/8/2013). In that case, development consent was sought for takeaway food premises on land which had frontage to the Hume Highway (a classified road) and frontage to another road. It was held that these were factual circumstances to which clause 101 (2) applies.

93. Preston CJ held at [30] that clause 101 has two concerns:

That in construing clause 101 (2)(a) the individual circumstances of a particular development on particular land with frontage to a classified road, achieving vehicular access to the land by a road other than the classified road may not be possible. In this event vehicular access to the land can be provided wholly by the classified road. The considerations in clause 101 (2) (b) would then be applicable. Preston CJ concluded as to clause 101 (2) (a) at [42] to [46] that practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road. The considerations in clause 101 (2)(b) would then be applicable. However, in this case there was ultimately no issue raised concerning the safety, efficiency and ongoing operation of the Classified Road or the matters referred to in clause 101 (2)(b) and (c) or that notice had been given to RMS as required by s.104 (3) (Traffic – Generating Development). Also, the views expressed by RMS with respect to the DA have been taken into account.

94. I agree with the submission of the applicant that in the absence of a second road frontage there is no option other than to use the classified road as the only means of providing vehicular access to this site. It is not to the point that at an earlier time in different factual circumstances there may have been potential for creating an access other than from the classified road by converting adjacent residential land to a roadway.

95. In the joint expert report of the traffic engineers it was accepted that 16 Hillcrest Street was not included as part of the current proposal and no issue was taken as to clause 101 (2) (a). Further, the traffic engineers acknowledged the position taken by Roads and Maritime Services which was that subject to the incorporation of a central median which would restrict all movements to left-in and left-out. There was no objection to the access arrangements designed by Mr Corbett from the applicant's traffic engineer. By the conclusion of the hearing, the traffic engineers had reached substantial consensus as to the need for a raised concrete median within the subject land at the exit from the land to Parramatta Road, crossing the pedestrian footpath and grass verge.

96. An amended plan by Mr Corbett was ultimately tendered, to be coupled with conditions which require signage to prevent right turn exit manoeuvres. It shows the position of the exit lane and a large painted left pointing arrow on the pavement of the exit Lane and two median structures, one within the site and the other on the green verge between the footpath and Parramatta Road on which a standing sign with "left turn only” is to be erected. Also, Mr Corbett made adjustments to the geometry of the egress lane by proposed conditions to the geometry of the egress lane.

97. I find the proposed amended ingress and egress arrangements to and from the site proposed by Mr. Corbett to be satisfactory and I reject any criticism by Mr. Hollyoake of them. The Supreme Court decision in Zraika v Walsh [2015] NSWSC 485, was used as a basis of his objection to Mr. Corbett’s proposal. However in that case as the applicant’s counsel demonstrated by his analysis of the decision in final submissions, the facts were not comparable to the present circumstances as the cause of the accident in Zaika was “all about the absence of a sign.”

Waste Management Vehicles

98. Mr Corbett provided a detailed plan in the joint traffic expert report which demonstrated the feasibility of waste removal from the loading dock and bin storage areas in the basement of the building by use of a small rigid vehicle (SRV). This involved the proposal that all deliveries and waste removal should be by a vehicle whose dimensions are no greater than 6.4 m in overall length and maximum overall body height of 3.5m. This is because waste removal by the council’s contractors would not be possible and would need to be by a private contractor. Mr. Corbett recommended this as an appropriate arrangement.

99. Strathfield DCP 2005 contains provisions in Part H dealing with waste removal from properties of the present kind. Ms. Olsen was concerned that the proposal would set a precedent for the use of private contractors in Strathfield leading to traffic impacts in the locality. However, the traffic engineers in their joint report agreed that there was no statutory impediment which would prohibit the applicant using a private contractor for waste removal and that this could be suitably controlled by a planning condition. It is not true to say that the use of private waste contractors would create a precedent in Strathfield because this Court has at least in one recent decision recognised the acceptability of such an arrangement: see Courallie Avenue Pty Limited v Strathfield Council (2015) NSWLEC 128 (30/4/2015) at [31] to [35]. Strathfield DCP 2005, Part H, is entitled Waste Minimisation and Management Plan. It commenced on 28/7/2015. Clause 3.3.1 states that waste collection for the purposes of mixed use (residential/commercial) development must be provided on-site and underground and there should be minimal need for reversing manoeuvres for collection vehicles on the site. There was no suggestion that there would be any breach of the requirements of the DCP. I am satisfied that the arrangements are satisfactory and worthy of development consent.

Conditions

100. Before the end of the hearing both parties prepared conditions of consent, exhibit 6 in the case of the Council, and exhibit “O” in the case of the applicant, for use in the event that I decided that development consent should be granted. However, in final submissions both parties requested that I deliver judgment without making final orders so that a set of agreed draft conditions could be prepared reflecting my findings, particularly as to the design of the vehicular egress from the site, about which there was conflicting expert evidence.

100. On that basis, I will defer making final orders to give the parties the opportunity to agree on the conditions.

Orders and directions

102. Accordingly, I make the following orders and directions:

1. I publish my findings in this matter;

2. I direct the parties to settle short minutes of orders including conditions of consent reflecting my findings and to forward them to the Court by email marked for my attention by 8/6/2016.

3. The proceedings will be listed before me for any argument as to the terms of the conditions (if not agreed) at 4.15pm on Thursday 14/6/2016.

4. If I receive orders as required by (2) above, I will make orders in chambers, vacate the mention in (3) and notify the parties.

Addendum made on 27 June 2016

103. In accordance with the directions in paragraph 102 of my judgment of 3 June 2016, the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent accord with my findings and accordingly I make orders in chambers as follows:

1. The appeal is upheld

2. To the extent that leave has not already been granted for the applicant to rely on the plans in exhibits A, F and J, leave is granted

3. Development Application No. DA2015/065 for demolition, consolidation of three lots into one site, construction of a 13 storey mixed used development containing ground floor commercial tenancies and seventy two (72) residential units above three levels of basement car parking, new vehicular access and driveway crossing for vehicular access and egress to Parramatta Road, and Strata subdivision, on lots 13, 14 and 15 in section B and DP7876 known as 153 Parramatta Road, Homebush, is approved subject to the conditions contained in Annexure A hereto.

4. The exhibits may be returned with the exception of exhibits A, F and J.

John Maston

Acting Commissioner

161836.16 Maston (C) (419 KB, pdf)

Amendments

27 June 2016 - Addendum made by Commissioner Maston

09 June 2016 - Amendment to legal representative name & the Commissioner has corrected a formatting error in paragraph 43.

Decision last updated: 27 June 2016