Haiek v City of Parramatta Council

[2020] NSWLEC 1061

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Haiek v City of Parramatta Council [2020] NSWLEC 1061
Hearing dates:	28-29 November 2019; 3 December 2019
Date of orders:	25 February 2020
Decision date:	13 February 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted for the demolition of a single storey dwelling and the construction of a 3-storey residential flat building containing 6 residential apartments and basement car parking for 9 car spaces at 53A Thomas Street, Parramatta, subject to the conditions of consent contained in Annexure A.
Catchwords:	APPEAL – development application – 3-storey residential flat building within a special precinct – design inconsistent with desired character for precinct – alternative design solution appropriate – assessment of merits of alternative design solution – setbacks – landscaping – site width – precedent
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Texts Cited:	Apartment Design Guide Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	Charlie Haiek (First Applicant) Mary Rose Haiek (Second Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: M Wright SC (Applicants) H Irish (Respondent)   Solicitors: Macquarie Lawyers (Applicants) City of Parramatta Council (Respondent)
File Number(s):	2018/291812
Publication restriction:	No

Judgment

1. COMMISSIONER: East of the central business district of Parramatta and immediately north of the Parramatta River is an area known as the Morton Street Precinct, which is in the process of redevelopment to achieve higher densities and to create better connections to the river foreshore. Within the precinct, at 53A Thomas Street, Parramatta, Mr and Mrs Haiek (“the applicants”) seek development consent for the demolition of a single storey dwelling and the construction of a 3-storey residential flat building containing 6 residential apartments and basement car parking for 9 car spaces. There are proposed to be two 2-bedroom apartments located at the ground floor, a 2-bedroom apartment and two studio apartments on the first floor, and a 3-bedroom apartment located on the second floor. These proceedings are an appeal by the applicants against the refusal by Parramatta City Council (“the Council”) of an application seeking development consent for the same.

2. The Council opposes the grant of development consent on a number of grounds, which can be summarised as follows:

• The proposed development is inconsistent with the Morton Street precinct plan;

• The proposed development does not comply with the minimum requirements for lot width, side setbacks, landscaping and deep soil planting;

• The design of the proposed development has unacceptable internal and external amenity impacts; and

• The proposed development will create an undesirable precedent in the locality.

3. For the reasons set out below, I have determined that the proposed development is an appropriate design in the context of the site and in light of the applicable controls.

The site and the locality

4. The site is legally described as Lot 5 in DP 9551, and is known as 53A Thomas Street, Parramatta. It is regular in shape with a total area of 654.9m², a frontage of 14.35m to Thomas Street and a depth of 45.6m. The site has a fall of 6.26% from the northern front boundary to the southern rear boundary. It is a mid-block allotment within a residential block bounded by Thomas Street, Pemberton Street, Broughton Street and Morton Street.

5. Thomas Street is characterised by a mix of single and two storey residential dwellings on similar sized allotments. Immediately to the south and adjoining the site are multi-dwelling developments with frontage to Broughton Street. The site and Broughton Street fall within the Morton Street Precinct, which is bounded to the south by the Parramatta River. To the south of the site, between Broughton Street and the river are a number of high rise residential flat buildings, up to 40m in height. An aerial photograph of the site and surrounds is at Figure 1.

The planning context

6. The site is located at the northern edge of the area zoned R4 High Density Residential, pursuant to the Parramatta Local Environmental Plan 2011 (“PLEP 2011”). Opposite the site, across Thomas Street, is the R2 Low Density Residential zone. Residential flat buildings are a nominated permissible use in the R4 zone, but are an innominate prohibited use in the adjoining R2 zone.

7. Clause 2.3(2) of the PLEP 2011 requires the Court, in exercising the functions of the consent authority, to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

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

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

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

• To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities.

• To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood.

8. Pursuant to cl 4.3 of the PLEP 2011, the height development standard applicable to the site is 11m. The proposed development complies with this standard. The height development standard for the R2 zone immediately to the north on Thomas Street is 9m.

9. Pursuant to cl 4.4 of the PLEP 2011, the floor space ratio (“FSR”) development standard that is applicable to the site is 0.8:1, and the FSR development standard for the adjoining R2 zone is 0.5:1. The proposed development complies with the applicable FSR development standard.

10. As outlined above, the site is located in the Morton Street Precinct, pursuant to the Parramatta Development Control Plan 2011 (“PDCP 2011”). In the Introduction to Part 4 of the PDCP 2011, the operative control with respect to special precincts is at C1, and requires that “The consent authority, in considering a development application for land in a Special Precinct must have regard to the objectives and controls for the Special Precinct”. A note in the introduction, which does not form part of the objectives or controls, states that:

“NOTE: Development must comply with the objectives, principles and controls in Part 4 and any relevant objectives, principles and controls in Parts 2 and 3 of this DCP. Where there is any inconsistency Part 4 will prevail.”

11. Part 3, at Table 3.1.3.7, sets out a number of the built form controls for residential flat buildings. These controls, together with other general controls in Part 3, are considered further below.

12. In Part 4, Section 4.1.9, the design of the Morton Street Precinct is for perimeter block development of residential flat buildings with higher densities and taller built form located along the river foreshore, scaling back in density and height before it transitions to the R2 zone. The indicative building envelopes are shown at Figure 2.

13. The desired future character of the precinct is described as follows:

“Desired Future Character

The Morton Street Precinct is located adjacent to the Parramatta CBD with the capacity to accommodate more residential growth and supporting infrastructure. It will undergo managed growth and change in its urban form with anticipation of a mix of housing types with mixed use community activity centred on Morton Street.

New pedestrian and vehicular links will create better connections within the precinct and access to the Parramatta River. The river foreshore will provide a strong recreational and communal focus for the precinct and beyond. It will include an important riverside pedestrian and bike link between the Parramatta CBD and the University of Western Sydney. In the short term, the precinct’s larger sites will undergo change. This renewal will set the design and quality benchmark for other development within the precinct.

The built form will include some taller building elements along north / south orientated sites to reduce visual bulk, encourage more modulation, reduce overshadowing and encourage dual aspect apartments for enhanced access to sunlight and breezes. The building form for east / west sites will be lower in height to optimise solar access to private and public open space and allow view corridors from the south. Taller, slender “statement” buildings will be located along the foreshore to enable a strong visual relationship between the precinct and the CBD, mark the entry to Parramatta and provide a punctuated built edge to the river.

New pedestrian and vehicular links will create better connections between the site and the Parramatta River foreshore. The river foreshore will provide a strong recreational and communal focus. It will include an important riverside pedestrian and cycleway to facilitate the link between the Parramatta CBD and the University of Western Sydney.

The development of the precinct will allow for a greater emphasis and recognition of the riverside location and the opportunity for enhancing the foreshore and public domain with development that is both well-designed and strongly related to the river. The connection of the north and south banks of the river with a pedestrian bridge will be explored to provide better linked communities across the river.”

14. The objectives for development in the precinct are:

“O.1 To ensure that new development:

a. Provides buildings with articulation and an attractive composition of building elements.

b. Results in minimal overshadowing of adjoining development, particularly windows of living areas, solar collectors and outdoor recreation areas.

c. Provides building separation that supports private amenity.

d. Provides active ground floor uses along Morton Street to increase the safety, use and interest of the street.

e. Provides open space areas by way of an internal common area courtyard and / or private open space being an extension of the main living areas of individual apartments.

O.2 To encourage perimeter block development with a strong relationship between buildings and the streetscape, and providing a central common open space for the benefit of residents.

O.3 To ensure development fronting the public domain and foreshore provides a visual and physical connection to this area to improve surveillance and safety.”

15. The operative controls, and the specific building form typologies, are considered further below.

16. The State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (“SEPP 65”) also applies, and provides at cl 28(2) that:

(2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

17. Clause 30 of SEPP 65 provides:

(1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters:

(a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide,

(b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide,

(c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide.

Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings.

(2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to:

(a) the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

18. The Apartment Design Guide (“ADG”) is therefore relevant in the context of clauses 28 and 30, and is considered in more detail further below.

Evidence

19. Whilst none of the resident objectors were present at the site inspection, a number of written submissions were lodged with the Council with respect to the proposed development. Those written submissions did not raise any issue of substance that differs from the contentions raised by the Council, which are considered in the course of my consideration below.

20. Expert opinion evidence was given by Mr Jeff Mead, a town planner engaged by the Council, Mr Adam Byrnes, a town planner engaged by the applicants, Ms Jan McCredie, an urban designer employed by the Council, and Mr Nigel Dickson, an architect and town planner engaged by the applicants. Their evidence is discussed in my consideration below.

Consistency with the Morton Street Precinct Plan

21. Within the precinct plan, the operative control that sets out the built form requirements with respect to the site, is C2:

“C.2 Development in Areas 2 and 3 - Morton Street East and West must explore and assess the context of the site in relation to the indicative building envelopes, as shown in Figure 4.1.9.3. However, alternative design solutions to that of the indicative building envelopes may be acceptable in Areas 2 and 3 if it can be shown that the design will:

a. achieve a positive and cohesive relationship with other buildings;

b. achieve optimum solar access and overshadowing does not affect functional open space, or habitable rooms of adjoining development; and

c. respond to the principles embedded in the desired future character statement for Morton Street.”

22. The general precinct controls with respect to the built form include the following:

“C.5 The built form controls correlate with the indicative building envelopes shown in Figure 4.1.9.3. The design of buildings must comply with the relevant standards for each building type.

C.6 Building typologies have been specified to ensure that new buildings are consistent with the orientation of streets. This will achieve a more orderly pattern of development that is distinguishable, reflects the level of density while maximising solar access and minimising overshadowing impacts to all forms of open space.

C.7 The different typologies respond to different street conditions, for example new development along Macarthur Street responds to its location as a gateway by encouraging strongly defined vertical elements with no upper level setbacks to mimic the prominence of buildings within the CBD whereas in Morton Street, buildings are set back to encourage active street frontages.

C.8 Buildings should be designed to create streetscapes that are characterised by:

a. Clearly defined edges and corners, and

b. architectural treatments that are interesting and relate to the design and human scale of existing buildings.

C.9 Development is to establish a scale in the immediate vicinity of heritage items that does not overwhelm the item, and is sensitive to its curtilage and historic setting, and makes a transition to higher development in the precinct.

C.10 Opportunities for views to the City, northern escarpment and across the river are to be realised in the design of new buildings.

C.11 Buildings fronting the off-road pedestrian network are to be designed to provide for casual surveillance.

C.12 Building circulation cores are to be glazed with entrances / windows recessed into the structural form.

C.13 Balconies are to be a combination of projected and enclosed forms.”

23. Building form Type B, which is the identified form of building required for the site (shown in Figure 2 above) has the following description and controls:

“Building Form Type B

Description

These building typologies are to have very strong vertical elements divided into units of equal proportion. There should be a variety of projected and recessed balconies. A small setback to the street is required to enable incorporation of small landscaped courtyards and to ensure a suburban character, with individual entries to dwellings. Gabled roofs are encouraged, with the potential for dormer windows and attic rooms. This will blend new development with the adjoining residential area.

Table 4.1.9.6

Controls for Form Type B

Control	Building Form Type B
Street Setbacks	Minimum 4 metres and maximum of 6 metres from property boundary
Street Frontage Height	Frontage height is to be 11 metres for a 3 storey building and 14 metres for a 4 storey building
Depth of Building	Minimum of 16 metres and maximum 18 metres
Site Frontage	Minimum 24 metres in Areas 2 and 3

The Council’s position

24. The Council contends that the design of the proposed development is not consistent with the building form controls for Type B buildings, and that the exploratory task that requires the applicants to “explore and assess the context of the site in relation to the indicative building envelopes” has not been adequately undertaken so as to allow them to move to an alternative design solution as envisaged by C2.

25. In particular, the Council points out that the proposed development does not meet the minimum street setback (front setback) requirement, and provides a front setback ranging from 6.122m to 9m. It also does not comply with the maximum building depth control of 18m, and instead has a depth of 32.2m. Further, the site does not meet the site frontage width requirements of a minimum 24m, and has a frontage width of only 14.325m. The Council therefore says that the proposed development does not follow the indicative building envelopes, and does not achieve the objective for “perimeter block development with a strong relationship between buildings and the streetscape, and providing a central common open space for the benefit of residents”. The Council relies on the evidence of Ms McCredie that the proposal is a narrow deep building on a single allotment, which fragments buildings in the streetscape and does not maximise the rear setback to achieve a central common open space. Ms McCredie considers that the indicative building envelope in Figure 4.1.9.3 is a building zone in which buildings are to occur, and that even if there can be no amalgamation of adjoining sites, there should nevertheless be a building envelope that falls within that zone. In light of this, the Council submits that the proposed development is not consistent with the desired future character for the precinct.

26. The Council submits that before considering “alternative design solutions”, the requirement to “explore and assess the context of the site in relation to the indicative building envelopes” includes consideration of the applicable controls in Table 4.1.9.6 and the accompanying description. The Council submits that the applicants have not sufficiently explored and assessed a building typology which would comply with those controls and that description. The Council submits that the width for Form B Type buildings and the requirement for amalgamation should be informed by the street frontage control requiring a minimum of 24m, and that this aspect of the indicative building envelope has not been adequately explored and assessed. It relies on the evidence of Mr Mead that the applicants have not demonstrated that it has explored potential outcomes for development that more closely align with the building form required for the site.

24. Additionally, in exploring potential outcomes, the Council submits that the Court must be satisfied that the applicants have “made good” the assumption that there is no ability to amalgamate to provide a street frontage minimum of 24m, and that the Court would not be so satisfied. The Council submits that such amalgamation would allow adequate side setbacks and facilitate compliance with the maximum building depth control.

25. Further, the Council submits that even if it is appropriate for an alternative design solution to be considered, the proposed development does not meet the criteria in (a), (b) or (c) of C2. In particular, the Council relies on the evidence of Mr Mead and Ms McCredie that those criteria are not met. Ms McCredie and Mr Mead opine that the proposed development does not achieve a positive and cohesive relationship with other buildings because the separation distances along the side setback do not meet the requirements of the ADG. With respect to criteria (a), which concerns achieving that positive and cohesive relationship, Ms McCredie’s evidence is also that the whilst the building typology is similar to future proposed buildings, the form is different in that it: has a narrow frontage and has cantilevered elements, is further out of the ground at the rear than existing and proposed buildings, and has a distance from the rear boundary that is approximately 10 metres less than complying development, which interrupts a proposed contiguous central landscaped area. Ms McCredie also considers that the deep soil and landscaped areas are substantially reduced so there is no cohesive landscape setting and the width of the driveway as a percentage of the site width impacts on the overall streetscape and impedes the ability to form a cohesive relationship with any future building to the west. Similarly, Mr Mead opines that criterion (a) is not met as the site width and building length of the proposal provides for a series of side facing windows, reduced side setbacks, lack of any opportunity for deep soil planting within side setbacks and a much reduced central common open space. As such, he considers that the interface with future development on adjoining sites will not be positive and cohesive. He also notes that the building length also requires greater cut in the front setback and elevation of the rear of the building above ground level to a greater extent than would be required of the Building Form Type B.

26. With respect to criterion (b), both Mr Mead and Ms McCredie’s evidence is that the proposed development has a greater overshadowing impact when compared to a building that complies with the building envelope for Building Form Type B.

27. They also opine that the alternative design put forward does not positively respond to the principles in the Desired Future Character statement (as required by criterion (c)) as it does not reduce visual bulk, enhance access to sunlight or create a strong communal and recreational focus. The Council submits that the principles in the Desired Future Character statement also include the objectives and controls for the precinct, and that the proposed design does not respond to those controls as it is not consistent with them.

The applicants’ position

31. The applicants’ position is that the perimeter block development depicted in Figure 4.1.9.3, and the accompanying controls in Table 4.1.9.6, cannot be achieved in circumstances where there is no requirement for the amalgamation of lots. Further, the applicants submit that the setback requirements that are sought to be imposed by the Council (discussed separately below) are inconsistent with the building form Type B shown in Figure 4.1.9.3. The applicants point out that even the design sketch provided by Ms McCredie shows a building envelope that is not consistent with the requirements for building Type B or the envelope in Figure 4.1.9.3. In those circumstances, the applicants submit that an alternative design solution is appropriate and the proposed development meets the criteria set out in (a), (b) and (c) of C2.

32. In support of their position, the applicants rely on the evidence of Mr Dickson and Mr Byrnes. Mr Byrnes considers that there is an inconsistency in the PDCP 2011 as the building envelopes in Figure 4.1.9.3 show buildings of 90m length, whereas the controls for Type B buildings require buildings “to be divided into units of equal proportion”. Similarly, Mr Dickson considers that the Type B buildings demonstrated in Figure 4.1.9.3 suggests long terrace house forms facing Thomas Street, which is at odds with the 24m minimum lot width amalgamation pattern with the 6m side setbacks being put forward by Ms McCredie. Accordingly, Mr Byrnes opines that there is no clear single typology of building articulated by the planning controls. He considers that without the requirement or ability to amalgamate, the site has a width of less than that required. In those circumstances, Mr Byrnes considers that an alternative design is appropriate. He also considers that the proposed development meets the criteria in (a) as the proposal responds to its context given the building forms and natural elements in the vicinity of the site, including the large established masonry dwellings of two storeys with pitched roofs, minimal side setbacks and significant bulk and scale. This context includes, on his evidence, the fact that each lot is provided with a driveway cross over and contains some landscaping forward of the building, that there is a mix of densities in the visual catchment and that there is no distinct character of rear setbacks in the street block. In that context, he considers that the proposed development will be compatible with the height, bulk and scale of buildings existing in the street, provides adequate separation to allow for landscaping, and provides a landscaped rear that will be consistent with the context. Additionally, Mr Dickson’s evidence is that the present application is similar in proportion to the strata titled townhouses that front Broughton Street, which comprise buildings that are approximately 8.5 m wide and 20m deep, which is up to 40m deep when measuring both sets of buildings (i.e. the northern duplex and the southern building element).

33. Further, in considering criterion (b) of C2, both Mr Byrnes and Mr Dickson consider that the proposed development results in improved overshadowing compared to what would result from compliance with Figure 4.1.9.3. Indeed, all of the experts agree that the proposed development will meet the controls for overshadowing in Part 3.3.5 of the PDCP 2011 and the ADG requirements for solar access.

34. In considering criterion (c), Mr Byrnes and Mr Dickson opine that the proposed development is consistent with the desired future character statement by providing the mix of housing types sought by Paragraph 1 of the statement. Mr Dickson further considers that the proposed development is consistent with the description of Type B buildings prior to Table 4.1.9.6 to

“have very strong vertical elements divided into units of equal proportion. There should be a variety of projected and recessed balconies. A small setback to the street is required to enable incorporation of small landscaped courtyards and to ensure a suburban character…”

An alternative design solution is appropriate in the context

35. It is plain that the controls for the precinct reflect its desired future character. However, in assessing “the context of the site in relation to the indicative building envelopes” with respect to the area bounded by Thomas Street, Pemberton Street, Broughton Street and Morton Street, in my view the desired future character of perimeter block development is unlikely to be achieved under the current controls and in the context of the site. Firstly, there are already buildings within that area that are not consistent with perimeter block development. Mr Dickson and Ms McCredie agree that the town houses to the south of the site, which are grouped around common driveways accessed from Broughton Street, are likely to be strata titled and unlikely to change in the near to medium term and are unlikely to be redeveloped as apartment buildings in the near future. Two of those town house developments, at 4-6 and 10 Broughton Street, have long, narrow building forms that run from the street frontage to the rear of the site, which is not consistent with perimeter block development or with the indicative building envelopes in Figure 4.1.9.3. Similarly, at 18 Broughton Street, one of the buildings is located at the rear of the site, which is not consistent with perimeter block development. This is shown in Figure 3.

36. Secondly, without a requirement for the amalgamation of sites or for a nil side setback, the controls in Table 4.1.9.6 do not facilitate achieving the perimeter block development or the indicative building envelopes in Figure 4.1.9.3. I accept the evidence of Mr Byrnes that, as a result, the controls do not allow the building envelope in Figure 4.1.9.3 to be achieved. As opined by Mr Byrnes, this does lead to an inconsistency. This is demonstrated by the design sketch by Ms McCredie, which is relied upon by her as a “complying building envelope”, yet nonetheless does not comply with the maximum building depth control in Table 4.1.9.6.

37. As a consequence, I consider that an alternative design solution is appropriate. However, its acceptability depends upon it being a design that meets the criteria in (a), (b) and (c) of C2. In assessing criteria (a) and (b), I do not accept the assumption made by Mr Mead and Ms McCredie that it requires a comparison of the design proposed and a so-called ‘compliant’ development. There is no basis within the text of C2 for such an assumption. Instead, the focus of criterion (a) is whether the design will achieve a “positive and cohesive relationship with other buildings”. I accept Mr Dickson’s analysis in that respect. The proposed development will form a positive and cohesive relationship with other buildings as it is commensurate with the height, bulk and scale of existing buildings, which include masonry dwellings with minimal side setbacks, and multiple dwellings with a driveway cross over and landscaping forward of the building. It will be cohesive in the current streetscape, in which there are a range of densities, whilst also complying with the height requirement for 3 storeys, which will allow it to be cohesive with future buildings in the streetscape. Having reviewed the cross-sections and elevations in the plans, I accept the evidence of Mr Byrnes that the design of the basement is responsive to the site conditions and provides a step in the ground floor level towards the rear of the site in line with the natural ground level, which, together with the sloping of the basement, ensures that the basement does not excessively protrude at the rear of the site. Further, I accept the evidence of Mr Dickson and Mr Byrnes that there is no distinct character of rear setbacks in the street block, and that the rear setback proposed provides a landscaped rear that will be consistent with the context.

38. I also accept that, by complying with the PDCP 2011 and ADG requirements with respect to solar access and overshadowing, the design of the proposed development achieves “optimum solar access” and overshadowing that “does not affect functional open space, or habitable rooms of adjoining development”, in accordance with criterion (b).

39. Criterion (c) requires the design to “respond to the principles embedded in the desired future character statement for Morton Street”. The word “embedded” necessitates looking beyond the text of the desired future character statement to the underlying principles that might inform that text. I do not accept the submission of the Council that by so doing, it is imperative to consider the numerical controls for Type B buildings. To do so would be beyond the scope of the word “principles” and would inappropriately result in applying the numerical controls contrary to the clear mandate to consider an alternative design solution. However, considering the objectives can be helpful to understand the principles embedded in the statement. In doing so, I consider the principles embedded in the desired future character statement to be the development toward a mix of housing types with mixed use community activity, a communal focus for the precinct, streetscapes that are characterised by clearly defined edges, architectural treatments that are interesting and relate to the design and human scale of existing buildings, building typologies that are consistent with the orientation of the street, and the provision of a central mid-block common open space. Whilst the building orientation is not west-east in a manner consistent with the street, I accept the evidence of Mr Byrnes and Mr Dickson and consider that the design of the building otherwise responds to the embedded principles by providing a new housing type within the block, a compliant rear setback that provides opportunity for landscaping, a front setback that is consistent with the existing setbacks in the street and clearly defined edges that are articulated through architectural treatment and materials.

40. The design of the proposed development is therefore an “alternative design solution” that is acceptable when considered against criteria (a), (b) and (c) in C2 of the controls with respect to the precinct. It is a design that is consistent with the plan for the precinct notwithstanding that it does not comply with the indicative building envelopes in Figure 4.1.9.3. Accordingly, I do not accept the Council’s contention that the design of the proposed development should be refused on the basis that it does not respond to the desired future character of the Morton Street Precinct.

Site width, building separation, setbacks and amenity impacts

41. As set out above at [10], the note to the introduction to Part 4 of the PDCP 2011 makes it clear that development must comply with both the objectives, principles and controls in Part 4, and any relevant objectives, principles and controls in Part 3. Part 3, at Table 3.1.3.7 contains the same site frontage width control as for Type B buildings, requiring a minimum 24m site frontage for residential flat buildings. As set out above, the site has a frontage of 14.325m.

42. Further, Part 3 of the PDCP 2011, at Table 3.1.3.7 describes the following requirements for side setbacks for residential flat buildings:

“Side setback should be provided to ensure compliance with Section 3F ‘Visual Privacy’ of the ADG which details the building separations required between residential flat buildings.¹

¹ Where a site adjoining the subject site does not contain an apartment building at the time the development application is being assessed, the separation required will be that specified for habitable rooms and balconies in Section 3F of the ADG. Example: If a 5-8 storey building has balconies fronting a side boundary then the separation between it and a Residential flat building must be 9m and so the setback from the boundary is 4.5m so both sites share the 9m building separation equally (i.e. 4.5m each)”

43. Objective 3F-1 in Part 3F ‘Visual Privacy’ of the ADG provides the following design criteria:

"1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows:

Building Height	Habitable rooms and balconies	Non-habitable rooms
Up to 12m (4 storeys)	6m	3m
Up to 25m (5-8 storeys)	9m	4.5m
Over 25m (9+ storeys)	12m	6m

44. C10 of Part 3.3.3 of the PDCP 2011 also requires that “The minimum separation between habitable rooms/balconies is 12m”. The objectives of Part 3.3.3 are:

“O.1 To ensure that development does not cause unreasonable overlooking of habitable rooms and principal private open spaces of dwellings.

O.2 To ensure that visual privacy is provided both within a development and between a development and its neighbours.

O.3 To ensure that the siting and design of development minimises the impacts of noise transmission between properties.”

45. This is consistent with Part 2 of the ADG, which concerns the development of controls by consent authorities, which at Part 2F provides the following considerations in setting building separation controls:

“Minimum separation distances for buildings are:

Up to four storeys (approximately 12m):

• 12m between habitable rooms/balconies

• 9m between habitable and non-habitable rooms

• 6m between non-habitable rooms”

46. The Council’s position is that this means that the separation distance required between the proposed development and the side boundaries is 6m.

47. The proposed development has varying side setbacks. On the eastern elevation at ground level, there is a small section with a planter box and garbage room that has a setback of 1.8m to the boundary, and the rest of the elevation has a 3m setback. At the second floor (third storey), the side setbacks on the eastern elevation range from 3m to 4.12m. On the western elevation the setback distance from the side boundary is 4.9m where the driveway is located, 3m towards the middle of the building, and tapers away to a larger side setback of 4.43m at the rear.

48. Table 3.1.3.7 in Part 3 of the PDCP 2011 also sets out that the rear setback is to be a “minimum 15% of length of site”. The proposed development has a rear setback of 7.782m, which complies with this control. Whilst Ms Irish, who appears for the Council, submits that the rear setback does not comply with this control, this submission is not supported by the evidence of the experts, including Ms McCredie, who considered the rear setback to be 16.8% of the length of the site.

49. However, the Council contends that the rear setback should instead be determined by applying the maximum building depth control from Part 4 of the PDCP 2011. Ms McCredie opines that, in doing so, applying a front setback of 4-6m and a building depth of 16-18m, the required rear setback would therefore be 21.5m.

50. Table 3.1.3.7 in Part 3 of the PDCP 2011 requires a front setback of 5-9m, whereas Table 4.1.9.6 in Part 4 requires that a Type B building have a front setback of 4-6m. The front setback of the proposed development is 6.122m.

51. The Council contends that the proposed development should be refused on the basis that the separation from the adjoining sites is inadequate and will result in poor amenity both within the development and for neighbouring development. It contends that the reduced side setbacks result in a visually bulky proposal. It relies on the evidence of Mr Mead, who opines that the non-compliances outlined above result in an unacceptable built form outcome because the proposal does not adequately address the site constraints. Mr Mead considers that it cannot be expected that a FSR close to the maximum is achievable on a site that is significantly less than the minimum width requirement. He considers that the design will have an impact on future development of adjoining sites, and would be incompatible with the form of future development of those sites. Whilst the site width control does not have any associated objectives, Mr Mead opines that the typical objectives for site width relate to ensuring development sites are of sufficient width to accommodate high quality development with regard to occupant and neighbour amenity, allow for adequate setbacks and landscaping, and respond to the local context. As a result, Mr Mead opines that the proposed building does not provide adequate building separation to reduce apparent bulk, allow for meaningful landscaping to soften the edges of the site in terms of visual bulk or to manage the amenity relationship with adjoining properties. Mr Mead points out that the side setbacks are dominated by vehicular and pedestrian circulation. Further, Mr Mead opines that those impacts of the reduced setbacks are not mitigated as there are several habitable rooms facing side boundaries, and that the reduced setbacks negatively impact on aural and visual privacy and solar access. The Council also relies on the evidence of Ms McCredie, who similarly opines that the reduced setbacks affect visual privacy through overlooking from windows along the side elevations, and adversely affect acoustic privacy. In particular, she points out that the windows at the rear of the site face the rear open spaces of the adjoining sites. Ms McCredie also opines that the rear setback makes limited contribution to a contiguous landscaped area at the centre of the block. The Council also submits that the evidence given by Mr Dickson and Mr Byrnes was based on a false assumption that the site could not be amalgamated.

46. The applicants submit, firstly, that the side setback requirements in Part 3, at Table 3.1.3.7, of the PDCP 2011 do not apply as they are inconsistent with the Building Form Type B in Part 4 of the PDCP 2011. This is acknowledged by Ms McCredie, who opines that the introduction of the ADG side separation distances result in a building form inconsistent with the Indicative Building Envelopes in Figure 4.1.9.3, and that when such a control is applied to an amalgamated site then the building depth control would not be met (although, on her evidence, the desired outcome and objectives could still be achieved in such a design). In reliance on the note in the introduction to Part 4 of the PDCP 2011, the applicants submit that there is therefore an inconsistency between those controls, over which Part 4 prevails. Secondly, the applicants submit that, in relying on an alternative design solution through C2 of the Part 4 controls, they cannot then be shackled by the general controls that apply to residential flat buildings. Thirdly, the applicants submit that the proposed development meets the applicable rear setback requirement, is consistent with the objectives of the setback and separation design guidelines in 3F-1 of the ADG, and provides a front setback that is consistent with the streetscape. The applicants submit that the Council’s position that the smaller setbacks result in reduced amenity has not been demonstrated by the evidence. The applicants submit that in circumstances where residential flat buildings are permissible on the site, where they have made attempts to amalgamate and the PDCP 2011 does not require amalgamation, where there is no adverse impact on adjoining properties and where the design meets the ADG design guidelines, the proposed development should not be refused by reason of its reduced side setbacks and the non-compliance with the site width control.

The building separation, setbacks and site width do not warrant refusal

53. Having above determined that an alternative design solution distinct from the Type B building is appropriate in the circumstances of the case, it remains for me to consider the appropriateness of that design solution on its merits and in accordance with the assessment required by s 4.15(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In doing so, I consider that the general controls for residential flat buildings form part of that assessment, notwithstanding that the general controls concerning side setbacks would be inconsistent with a Type B building, had that been pursued. Further, the objectives and controls in Part 4 are also relevant to that assessment, even though I have reached the conclusion that the alternative design solution is appropriate and therefore that the Type B building controls need not be complied with. In carrying out that assessment, I reach the following conclusions.

54. Firstly, the rear setback complies with the relevant control within Part 3 of the PDCP 2011 and is therefore acceptable. I accept the evidence of Mr Dickson that the building depth control for a Type B building is to facilitate a perimeter block development, and I accept, therefore, that the control with respect the maximum building depth for a Type B building in Table 4.1.9.6 need not be adhered to in circumstances where I consider that an alternative design solution is appropriate. As such, there is no basis upon which to impose the requirement for a rear setback as calculated by Ms McCredie. The applicable rear setback is what is set out in Part 3 Table 3.1.3.7, a “minimum 15% of length of site”, with which the proposed development complies. The rear setback allows for communal open space and landscaping along the rear of the site, and achieves the objective from Part 4 of providing a common open space at the rear of the property that adjoins other communal open space along the rear of properties fronting Thomas Street.

55. Secondly, I accept that the front setback complies with the control within Part 3, and that it is appropriate in the circumstances. I accept the evidence of Mr Dickson that the slightly larger setback of 6.122m is consistent with the existing streetscape and allows for landscaping, which is consistent with the description of the Building Form Type B and therefore with the desired future character for “a small setback to the street… to enable incorporation of small landscaped courtyards”.

56. Thirdly, it is readily apparent that reduced site width and reduced side setbacks are inextricably linked. The reduced site width decreases the width available for side setbacks. The objective of the setback and building separation requirements, which are called up by SEPP 65 and by Part 3 Table 3.1.3.7 of the PDCP 2011, is to “achieve reasonable levels of external and internal visual privacy” (Objective 3F-1). I accept the evidence of Mr Dickson and Mr Byrnes that this is achieved through generally orienting the apartments on the first and second floor towards the street and towards the rear, with only a small number of windows facing the side boundary on those floors. Further, additional methods have been employed to achieve privacy, including sliding privacy screens on the windows and raised planters. This is shown in the east and west elevations in Figure 4. As a result, the only potential visual privacy impact arises from the windows at the ground level. This is mitigated by the boundary fence and the landscaping along the side boundaries, shown on the ground floor landscape plan at Figure 5.

57. Fourthly, I accept the submission made on behalf of the applicants that the Council has not been able to identify an actual amenity impact occasioned by the reduced side setbacks. For the reasons expressed above at [56], I do not accept that there is any unreasonable overlooking of the private open space of the adjoining dwellings. Instead, I prefer the evidence of Mr Byrnes that the proposed development skilfully deals with privacy through minimising the number of windows on the side boundaries at the upper two levels, and through the use of privacy screens, boundary fencing and landscaping. Further I accept the evidence of Mr Byrnes that the aural impacts of the proposed development are consistent with the anticipated noise associated with a residential development, and that the design of the apartments incorporates all living and entertainment areas oriented to the front and rear so as to reduce any acoustic impact on neighbouring properties.

58. Fifthly, I do not accept the Council’s position that the reduced setbacks create unreasonable bulk. I accept Mr Dickson and Mr Byrnes’ evidence that the bulk and scale of the proposal is commensurate with existing buildings in the streetscape, at 51A, 51 and 49 Thomas Street, which are dwellings of two storeys with pitched roofs, minimal side setbacks and significant bulk and scale. Further, the side setbacks are highly articulated and, contrary to the evidence of Ms McCredie, do not simply “fill an envelope”. I accept the evidence of Mr Byrnes that the articulation of the side setbacks results in a building of two distinct portions connected by the recessed lift and lobby space. Further, the building has a series of architectural elements such as balconies, projecting slab edges, variety in window designs and locations, and variety in materials. The third storey (second floor) is setback with raised planters in order to soften the edges, with a roof line that provides visual interest and allows for north facing highlight windows for improved amenity at that upper level. Similarly, planter boxes on the eastern elevation at the ground and first floor soften the edges at the narrowest setback, and the landscaping around the boundary soften the bulk of the building. Incorporating all these elements results in a building design that is consistent with the objectives of the Morton Street Precinct (at O1 of Part 4.1.19) recorded at [14] above, with articulation and an attractive composition of building elements, minimal overshadowing of adjoining development (as expressed by compliance with the PDCP 2011 overshadowing controls), and building separation that supports private amenity.

59. Finally, I do not consider that the potential impact of reduced side setbacks on hypothetical future development is determinative.

60. For the above reasons, I consider that the rear, side and front setbacks are appropriate in the circumstances and do not create an unreasonable impact. In reaching this conclusion, I do not accept the submission made on behalf of the Council that the evidence of Mr Dickson and Mr Byrnes on the merits of the proposal is founded on the assumption that the site could not be amalgamated. Whilst such an assumption is expressed in the joint reports, I do not accept that it was pivotal to their evidence on the merits of the proposed development, including their evidence on the setbacks. In circumstances where offers to purchase adjoining sites were made and refused, where the PDCP 2011 does not require amalgamation, where there is no unreasonable adverse impact on adjoining properties, where the design meets the objectives of the ADG design guidelines, and where I have found that the setbacks are appropriate, I consider that the reduced site width of 14.35m does not warrant refusal of the proposed development.

Urban design and appearance in the streetscape

61. The Council contends that the proposed development should also be refused on the basis that it is a narrow building typology that is out of character with the existing streetscape and with the wider buildings envisaged by the planning controls. Its position is that this will create a poor precedent in an area which is characterised by allotments of similar width, and across all similarly zoned sites in the local government area. It relies on the evidence of Ms McCredie, who opines that the proposal does not satisfy the requirement of the ADG to minimise ramping (3C-2), that it has a dominant driveway, and that the built form is half the width of future buildings, which does not reflect the pattern of development proposed under the Morton Street Precinct and the PDCP 2011. Further, she opines that the 1.9m cantilever of the two upper levels over the driveway on the western elevation is the result of “filling” the building envelope and maximising the FSR, and, together with the cantilever on the southern elevation, creates a “top-heavy appearance to the street”.

62. I do not accept the Council’s position that the design of the proposed development is out of character with the existing and future desired character in the streetscape or the locality. The height of the building and the number of storeys is consistent with the desired future character of Thomas Street as expressed through the controls for the Morton Street Precinct. I do not accept that the narrow building typology is out of character in the locality, and I do not consider that the cantilevered elements of the proposal create an unreasonable perception of bulk. As set out above, I accept the evidence of Mr Dickson and Mr Byrnes that the reduced side setbacks are commensurate with other large dwellings in the streetscape. I also accept the evidence of Mr Dickson that the ‘plan proportion’ of the development, being 8.5m and 30m deep, is relatively similar to that of the strata town houses to the rear of the site, which comprise buildings that are 8.5m wide and 20m deep or 40m deep when measuring the length of two buildings taken together. Further, I accept the evidence of Mr Dickson that the driveway is not dominant on the site, and that its width of 3.6m will be 25% of the site, similar to other driveways on Thomas Street. I also accept his evidence that there is nothing exceptional about the length of the driveway, which is screened by the use of a roller door and which will ultimately be replicated by future residential flat building developments due to the fall of the land away from Thomas Street. With respect to the streetscape, Mr Dickson has prepared drawings which show the elevation of the current street with buildings from 49 Thomas Street to 59 Thomas Street. I accept his evidence that these sketches show that the application does not have an inconsistent bulk in the existing street, or when compared to possible future developments in the adjoining properties. Finally, I consider that the cantilever over the driveway is mitigated by the pergola and landscaping, and that the cantilever at the rear is not readily perceived in the streetscape due to the articulation of the building and the proposed landscaping.

Landscaping

63. The Council’s position is that the landscaping of the site is insufficient. Part 3.1 of the PDCP 2011 requires that 40% of the site area of residential flat buildings be landscaped, and 30% of the site area to be deep soil landscaping. The ADG provides, at objective 3E-1, that “Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality.” The design criteria in the ADG, insofar as it relates to the site, requires that 7% of the site area is a deep soil zone.

64. The parties are in dispute as to the precise calculation of landscaped area and deep soil area. Even Ms McCredie provides two different calculations (see Ex 4, compare para 82 to para 163).

Landscaped area

65. The difference between the parties with respect to the calculation of the landscaped area arises due to the requirements of the PDCP 2011, which provides the following with respect to the calculation (at Part 3.3.1):

“P.6 Landscaped open space can be measured based on the following:

• impervious surfaces such as driveways, paved areas, roofed areas, car parking and storm water structures, decks and the like, and any area with a width or length of less than 2 metres are excluded.

• the water surface of swimming pools is included

• landscaping is to be at ground level

• the minimum soil depth of land that can be included as landscaped open space is 1 metre.”

66. As a result of the exclusion of planter boxes, areas with a width or length of less than 2m and of areas above the ground level, the Council has calculated the landscaped area as 177.1m², which is 27%, falling short of the requirement for 40%. However, once all of the planter boxes and areas along the boundaries that are landscaped are taken into account, the total landscaped area is 279m² or 42.8% of the site area.

67. Notwithstanding that the landscaped area provided does not strictly meet the control in the PDCP 2011 (due to the calculation requirements), s 4.15(3A) of the EPA Act requires the Court, in exercising the functions of the consent authority, to apply the provisions of the PDCP 2011 flexibly to allow for reasonable alternative solutions that achieve the objectives of those standards for dealing with that aspect of the development. In doing so, I accept that the provision of plantings in planter boxes and along boundaries where the width is less than 2m is a reasonable alternative solution. In so providing, the landscaped area meets the relevant objectives for landscaping set out in Part 3.3.1, in particular the following:

“O.3 To provide continuous vegetation corridors.

…

O.5 To enhance the existing streetscape and promote a scale and density of planting that softens the visual impact of buildings.

O.6 To provide privacy and amenity.

O.7 To promote energy efficiency by enhancing both solar access and shade.

O.8 To provide for the infiltration of water to the water table, minimise run-off and assist with stormwater management.

O.9 To ensure developments make an equitable contribution to the landscape setting of the locality.”

68. Accordingly, I consider that the landscaped area that is provided to be acceptable, notwithstanding that it includes areas of plantings that are not included in the calculation prescribed by the PDCP 2011.

Deep soil area

69. I find that the deep soil area provided by the proposed development to be 145.88m², being the total area calculated by Ms McCredie (Ex 4, Annexure K). I do not accept Ms McCredie’s exclusion of the area that is less than 4m wide. The requirement in the PDCP 2011 for a minimum area of 4m x 4m is a minimum dimensional requirement for the deep soil area across the site, which the site greatly exceeds. In contradistinction to the calculation requirements for the landscaped area, which excludes areas of width or length less than 2m, the minimum dimensions for deep soil area are not a prescription concerning how the deep soil area is calculated.

70. In addition to the deep soil area of 145.88m², there is also deep soil area along the western boundary adjacent to the driveway. This results in a total deep soil zone of 163m², which is 25.1% of the site area.

71. Whilst both PDCP 2011 and the ADG provide different minimum deep soil landscaped area requirements, both are required to be considered. I note, in particular, that the landscaping requirements of the PDCP 2011 are not affected by cl 6A of SEPP 65, which applies to other provisions of development control plans such that they have no effect. Nevertheless, cl 28 of SEPP 65 requires me to take into consideration the ADG and cl 30(2) precludes me from granting consent if I consider that adequate regard has not been given to the objectives in the ADG. Pursuant to s 4.15(1)(a)(iii) of the EPA Act, I am also required to take into consideration the provisions of the PDCP 2011. Again, s 4.15(3A) allows me to apply the provisions of the PDCP 2011 flexibly to allow for reasonable alternative solutions that achieve the relevant objectives.

72. I consider that flexibility should be applied in the circumstances, for three reasons. Firstly, the area of deep soil greatly exceeds the minimum deep soil zone required by the ADG (7%), and is therefore consistent with the objective in the ADG to “allow for and support healthy plant and tree growth” and to “promote management of water and air quality”. Secondly, the landscape plan allows the deep soil zone to be co-located with other deep soil zones on adjacent sites, and thereby create the large contiguous area of deep soil, which is consistent with what all of the experts considered to be an element of the Morton Street Precinct plan. This also includes the retention of a significant existing canopy tree at the rear of the site. Thirdly, a portion of the area that could otherwise have been used for deep soil is instead used for ramps to access the communal open space, which are required due to the topography of the site. Whilst the experts considered that these could be removed and the communal open space converted to private open space, the Council considered that compliance with the communal open space requirements should be met. The deep soil zone is reduced to allow for ramps to access that communal area. As a result, I consider that the area of deep soil zone provided, with much of it at the rear of the site adjacent to deep soil zones on adjacent sites and where it also forms the communal open space that is accessed by a ramp, is an appropriate alternative solution to achieve the objectives for landscaping set out in Part 3.3.1, particularly the following:

“O.2 To retain and provide for mature vegetation, particularly large and medium sized trees.

O.3 To provide continuous vegetation corridors.”

Internal amenity

73. The Council contends that the design of the proposed development results in unreasonable adverse impacts on the amenity of future residents, contrary to the objectives and controls set out in Part 3.3. of the PDCP 2011. Primarily, this concerns the amenity of Unit 1, which has windows that face the walkway and others that face the driveway, as well as having a private open space in the front setback that relies on a privacy screen with a height of 1.8m.

74. In particular, Ms McCredie opines that the bedroom windows in Unit 1 on the west elevation under the cantilever structure and adjacent to the driveway have compromised amenity. However, her evidence is that there is no concern about the windows of non-habitable rooms being adjacent to the walkway.

73. The fence proposed for the private open space of Unit 1 is contrary to P10 of Part 3.2.6 of the PDCP 2011, which requires front fences to be no higher than 1.2m.

74. Mr Dickson agrees that the proposed fence to the private open space of Unit 1 affects the amenity of the unit. He has not given his opinion with respect to the windows that face the driveway, but has instead prepared a solution sketch that results in most windows facing the street. The solution sketch also changes the internal layout and relocates the private open space to the rear.

75. Ms McCredie suggests that the slope of the site could allow the private open space to be located at the ground level of Unit 1, with a retaining wall close to the front boundary and a 1.2m fence on the street boundary. She considers that this would resolve the issue concerning the fence around the private open space, but states this “would need to be demonstrated”.

76. Whilst I accept that the bedrooms of Unit 1 have compromised amenity due to the bedroom windows having an outlook to the driveway, I do not consider that this warrants refusal given that it affects only one unit.

77. With respect to the fencing of the private open space, I do not consider it appropriate to take the “amber light” approach and direct the filing of amended plans that reflect either the solution sketch prepared by Mr Dickson or the simpler solution suggested by Ms McCredie. The Court of Appeal held in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [8], [20], [200]-[209], that the so called “amber light approach” has no statutory basis in the EPA Act, the Court Act or any Court Rules, and is of “questionable legality”.

78. Instead, I consider that this could be resolved by condition of consent requiring the reduction of the front fence height to 1.2m. The privacy of the private open space would nonetheless be protected by the rows of Syzygiuym leuhmannii and Callistemon viminalis ‘Slim’, which are proposed to be planted parallel to the three sides of the fence (in accordance with the Landscape plan), and achieve a mature height of 2000mm and 3000mm respectively. The condition should also require that these particular plantings (in the front setback and to the east of the driveway) be selected as advanced plants with a minimum planting height of 1500mm so as to reduce the length of time required to reach their mature height.

79. Subject to providing an opportunity for the parties to confer on the appropriate wording for such conditions and to hear from the parties if required, suggested conditions could be as follows:

“The fence for the private open space of Unit 1 is to be a maximum height of 1.2m”

“The two rows of Syzygiuym leuhmannii and the row of Callistemon viminalis ‘Slim’ in the front setback east of the driveway are to be planted with advanced plants selected at a minimum planting height of 1500mm”

Consistency with the design quality principles

82. The Council also contends that the development application should be refused because the proposed development does not achieve the design quality principles of SEPP 65. The two principles with which the Council is concerned relate to the context of the development and the neighbourhood character, and the built form and scale of the development. Those principles are as follows:

“Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.”

83. This was raised as the first contention in the Statement of Facts and Contentions. However, much of the evidence concerning the design principles also relate to the issues considered above. The Council relies on the evidence of Ms McCredie and Mr Mead in that respect.

84. In exercising the functions of the consent authority, pursuant to cl 28(2) of SEPP 65, I am required to take into consideration (inter alia) “the design quality of the development when evaluated in accordance with the design quality principles”.

85. Pursuant to cl 30 of SEPP 65, I am also precluded from granting development consent if I am of the opinion that the development “does not demonstrate that adequate regard has been given to” the design quality principles.

86. I find that adequate regard has been given to the design principles, and that the design of the proposed development is generally consistent with those principles. As set out above, the proposed development is consistent with the scale of the existing streetscape and is also of a height consistent with the desired future character for the precinct. Although it is not a perimeter block building as sought in the Morton Street Precinct Plan, it is nonetheless an appropriate alternative design solution with a bulk and scale that is commensurate with other development in the locality. It is also highly articulated, which results in a building of two distinct portions connected by the recessed lift and lobby space. It retains adequate solar access for adjacent developments, and provides a landscaped front and rear setback so as to achieve the objective of the Type B buildings for landscaped front yards, and to achieve contiguous deep soil area along the rear of properties fronting Thomas Street. As such, I consider that the proposed development responds and contributes to its context, and achieves a scale, bulk and height that is appropriate to the existing and desired future character of the locality.

Insufficient information

87. The Council raised a contention with respect to insufficient information. At the date of the hearing, the only information that it considered outstanding is particularised in the following manner:

“Council’s Development Engineers have raised concerns with the stormwater system and impact on Sydney Water Infrastructure”.

88. Whilst Ms Irish identified the Sydney Water Infrastructure as being a sewer line, no evidence was adduced in support of this contention. Further, the stormwater concept plans, which show the sewer line, state that it is to be realigned. The Council did not adduce any evidence to support there being an absence of detail that precludes the grant of development consent. As such, there is no basis upon which it would warrant refusal of consent for the proposed development.

Precedent

89. In its contention concerning urban design (dealt with above at [61]-[62]), the Council contended that the development should be refused as it would set a “poor precedent” in an area that is characterised by allotments of a similar width. In support of this position, it points out that since the introduction of the Morton Street Precinct Plan, none of the sites within the block bounded by Morton Street, Thomas Street, Broughton Street and Pemberton Street have been developed. This proposed development would be the first. Further, the Council relies on the evidence of the pre-DA meeting conducted with respect to a proposal for a residential flat building on the site to the east, which similarly does not seek to comply with the building depth control to achieve a perimeter block development. As such, the Council submits that this proposed development should be refused on the basis that it would form an inappropriate precedent that could, if replicated by future development, prevent achieving the desired future character of the precinct.

90. I do not accept that the proposed development should be refused on that basis. As set out above, in my view, the perimeter block development is unlikely to be achieved in the block in circumstances where there are strata-titled town house buildings in existence that are not consistent with such development and that the experts agree are unlikely to be redeveloped in the near future. Those buildings, particularly those at the rear of the site fronting Broughton Street (at 4-6 and 10 Broughton Street), set the context for future development on the western portion of the block bounded by Morton Street, Thomas Street, Broughton Street and Pemberton Street, in which the site is located. In circumstances where the controls do not require amalgamation or allow a nil setback, there is scope to explore an “alternative design solution”. In the present development application, that alternative design solution meets the criteria in C2 of Part 4.1.9 of the PDCP 2011. Any other development that is pursued that relies on an alternative design solution to the Type B building controls or perimeter block development, will similarly need to be considered against the three criteria for an alternative design solution, as well as the general merit assessment required pursuant to s 4.15(1) of the EPA Act.

91. With respect to the site width, I have above determined that the site width is acceptable in circumstances where offers to purchase adjoining sites were made and refused, where the PDCP 2011 does not require amalgamation, where there is no unreasonable adverse impact on adjoining properties, and where I have found that the setbacks are appropriate. Any other development on a similar site width would have to establish that the proposed development on that site width would be similarly acceptable.

92. As a result, I do not accept that the precedential impact of approving this development is sufficient to warrant its refusal.

Conditions of consent

93. There are two conditions of consent that the Council seeks to impose, but that the applicants contest. For the reasons set out below, I have determined that neither of the conditions should be imposed.

94. The first condition in dispute concerns one of the proposed deferred commencement conditions. The deferred commencement conditions require the creation of an easement to drain water 1.2m wide over the downstream property or properties, to the point of discharge in Broughton Street. The location and alignment of the easement is required to be consistent with the stormwater drainage plans that form part of the proposed development (Ex G). The Council also seeks the imposition of the following condition, which is opposed by the applicants:

“Evidence of consent from the owner of the land located at 8-10 Broughton Street, Parramatta, being Lot 1 DP 871869, will be provided to City of Parramatta Council for construction of Pit 2 as depicted on the plan prepared by Australian Consulting Engineers, No 103 Revision L dated 28/5/2019.”

95. The applicants submit that this condition is superfluous. They point out that the standard terms of an easement for drainage of water in Schedule 8 of the Conveyancing Act 1919 allows for the “carrying our work such as constructing, placing, repairing or maintaining pipes, channels, ditches and equipment”, and will be registered on title. The conditions require that the easement be consistent with the concept stormwater plans. Accordingly, the applicants submit that the condition is not required and should be deleted.

96. The Council, on the other hand, considers that a grated 900mm x 900mm stormwater pit is more than ‘a pipe in the ground’, ‘ditch’, ‘channel’ or ‘equipment’ that are contemplated in the wording of the standard terms of easement to drain water, and will potentially have a greater impact on the amenity of the landowner than these other types of drainage structures. Accordingly, the Council submits that it is appropriate for there to be a condition requiring express consent to Pit 2. It submits that such a condition ensures proper arrangements for drainage are established prior to the development commencing.

97. I do not accept that there is a sufficient basis for the imposition of this condition. I accept the position of the applicants that the conditions are sufficient, in that they require the creation of the easement and the location and alignment of the easement is to be consistent with the stormwater drainage plans. It is then a matter for the parties to the easement to ensure that the terms of the easement, and any compensation given for its creation, are sufficient for the installation of what is required within the easement. There is no basis upon which a separate consent ought to be provided to the Council.

98. The second condition of consent in dispute is as follows:

“Prior to the issue of a Construction Certificate, a solution sketch, and 1:20 cross sections shall be prepared by the applicant and submitted to Council for approval showing the relationship between the basement and planter boxes adjacent to the western boundary. The solution sketch and cross sections are to demonstrate:

Minimisation of negative amenity and visual impacts to No. 53 Thomas Street, through the use of scaling details in the design such as horizontal plinths, copping bricks and the like;

That the finish on the boundary to No. 53 Thomas Street is render on masonry or exposed brickwork. Exposed concrete blockwork or panels are not to be used.

Reason:    To minimise impact on surrounding properties, improved visual appearance and amenity for locality.”

99. The Council submits that the condition should be imposed to ensure that the proposed development meets design principle 9 in SEPP 65, which concerns aesthetics. The Council says there is an issue with respect to aesthetics regarding the appearance of the planter boxes and protruding basement when viewed by the western neighbour. The Council submits that, to date, the applicants have not provided these sections or given sufficient information regarding how the visual impact of these structures on the western neighbour is to be minimised, and that this information ought to have been provided to satisfy the Court of the impacts of the proposed development.

100. I do not accept that this condition is appropriate. Firstly, I accept the submission of the applicants that the condition is uncertain. It cannot be easily interpreted and there is no certainty as to what the Council requires to be demonstrated in the cross sections. Secondly, it seeks to defer an aspect of the consent by requiring a further approval concerning the design. Thirdly, the relationship is shown in the west elevation and, for the purpose of granting development consent, this is sufficient for me to determine that there is no unreasonable impact.

Outcome of the appeal

101. For the above reasons, it is appropriate to grant development consent subject to the conditions that are agreed between the parties. However, the parties ought to have the opportunity to discuss, and agree on, the terms of the conditions that I consider ought to be imposed concerning the front fence and the landscaping in the front setback.

102. The Court directs that:

1. The parties are to confer to finalise the appropriate wording for the conditions of consent resulting from the findings of the Court at [80]-[81].

2. If an agreement is reached on the conditions of consent referred to in (1) above, the final conditions of consent are to be filed by the Council by 20 February 2020.

3. If no such agreement is reached, the parties are to lodge an Online Court request by 12:00pm on 21 February 2020 setting out agreed available dates for a further court mention.

4. Liberty to restore is granted on 2 days’ notice.

5. The exhibits are returned, except for Exhibits A, E, F, G, H and K.

Addendum made on 25 February 2020

103. Subsequent to my findings and in accordance with the terms of directions in [102] of my judgment of 13 February 2020, the parties filed agreed conditions of consent. I am satisfied that the conditions reflect my findings.

104. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for the demolition of a single storey dwelling and the construction of a 3-storey residential flat building containing 6 residential apartments and basement car parking for 9 car spaces at 53A Thomas Street, Parramatta, subject to the conditions of consent contained in Annexure A.

………………………

J Gray

Commissioner of the Court

Annexure A (176 KB, pdf)

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Amendments

25 February 2020 - See Addendum at [103]-[104] for final orders.

Decision last updated: 25 February 2020