Huajun Investments Pty Ltd v City of Canada Bay Council (No 3)

[2019] NSWLEC 42

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Huajun Investments Pty Ltd v City of Canada Bay Council (No 3) [2019] NSWLEC 42
Hearing dates:	24 and 25 January, 15 February, 5, 6, 25, 26 and 29 March 2019
Date of orders:	31 July 2019
Decision date:	31 July 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1)   The request pursuant to cl 4.6 of the City of Canada Bay Local Environmental Plan 2013 (the local environmental plan) to comply with the development standard applicable to the site pursuant to cl 4.3 Height of Buildings of the local environmental plan is refused; (2)   Development Application 2016/0429 for the erection of an eight storey residential flat building with basement car-parking at 38-42 Leicester Avenue, Strathfield, is determined by refusal of development consent; (3)   The exhibits and documents marked for identification, other than Exhibit C, are returned; (4) No order for costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; and (5)   Costs, other than as provided for in (4), are reserved.
Catchwords:	DEVELOPMENT APPLICATION - proceedings arising on remitter from the Court of Appeal - proposed residential flat building in a precinct known as the Strathfield Triangle - proposed eight-storey development would breach the height of buildings development standard set by the City of Canada Bay Local Environmental Plan 2013 (the LEP) - neighbouring owner joined as Second Respondent to the proceedings - does proposed development satisfy applicable elements of cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (the SEPP)? - proposed development fails to satisfy two separate elements in cl 101 of the SEPP, each failure preventing approval of the proposed development - should a request pursuant to cl 4.6 of the LEP for dispensation from compliance with the height of buildings development standard applicable to the site be granted? - cl 4.6 request does not demonstrate that the proposed development satisfies the first of the objectives for the height of buildings development standard and is to be refused on this basis - merit assessment of the proposed development - even if jurisdiction existed to permit merit assessment of the proposed development, the proposed development is unacceptable - proposed development refused - appeal dismissed
Legislation Cited:	Canada Bay Local Environmental Plan 2013 Canterbury Planning Scheme Ordinance 1970 Civil Procedure Act 2005, s 56 Conveyancing Act 1919, s 88K(1) Environmental Planning and Assessment Act 1979, s 8.15 Environmental Planning and Assessment Regulation 2000, cl 49 Land and Environment Court Act 1979, ss 34, 38(2) and 56A Roads Act 1993, s 182(1) State Environmental Planning Policy (Infrastructure) 2007, cl 101 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Supreme Court Act 1970 s 69 Uniform Civil Procedure Rules 2005, r 36.17
Cases Cited:	Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 245 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Canterbury City Council v Saad [2013] NSWCA 251 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087 Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 Ibos Pty Limited v DHSH (Aust) Travel Pty Limited (2007) 152 LGERA 348; [2007] NSWLEC 120 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Samy Saad v City of Canterbury Council [2012] NSWSC 389
Texts Cited:	Macquarie Dictionary Oxford English Dictionary
Category:	Principal judgment
Parties:	Huajun Investments Pty Ltd (Applicant) City of Canada Bay Council (First Respondent) Al Maha Pty Ltd (Second Respondent)
Representation:	Counsel: Mr P Tomasetti SC/Mr J Doyle, barrister (Applicant) Ms H Irish, barrister (First Respondent) Mr T Robertson SC (Second Respondent)   Solicitors: Colin Biggers & Paisley (Applicant) Hall & Wilcox (First Respondent) Project Lawyers (Second Respondent)
File Number(s):	131433 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

Summary of outcomes

The procedural history

Counsel in the proceedings

The issues

The evidence

Introduction

Planning/urban design

Traffic/parking.

The planning regime

Introduction

The relevant provisions of the LEP

Introduction

The R4 zone objectives

The height of buildings clause

Clause 4.6 of the LEP

Clause 101 of the Infrastructure SEPP

The relevant provisions of the DCP

The Triangle DCP

The site inspection

The first phase of the hearing

The further amended application

Costs of the 15 February 2019 amendment

The mention on 20 February 2019

The width of the site’s access to Hilts Road

The Applicant's 5 March 2019 proposed conditions

The revised Design Verification Statement

An application to reopen is foreshadowed

An application to reopen is made

The reopening application

Consideration and conclusion on reopening application

The jurisdictional issues

The Infrastructure SEPP

Clause 101 of the Infrastructure SEPP

Clause 101(2)(a) of the Infrastructure SEPP

The Neighbouring Owner’s position

Introduction

The practicability of rear access

The Council's position

The Applicant's position

Consideration

Conclusion concerning cl 101(2)(a) of the Infrastructure SEPP

Safety and the operation of Leicester Avenue

The Applicant's request pursuant to cl 4.6 of the LEP

Introduction

The extent of the height exceedence

The January 2019 amended development application and revised cl 4.6 request

The approach to cl 4.6 of the LEP

Addressing this proposed clause 4.6 request

The Exhibit C request pursuant to cl 4.6 of the LEP

Introduction

The tests set by cl 4.6 of the LEP.

Exhibit C and the objectives of cl 4.3(1)

Exhibit C and cl 4.3(1)(a) of the LEP

Consideration of Exhibit C’s addressing of cl 4.3(1)(a) of the LEP

Introduction

The Applicant’s closing submissions

The Neighbouring Owner’s closing submissions

The Council’s closing submissions

The Applicant’s closing submissions in reply

Consideration of the cl 4.6 request

Conclusion concerning the cl 4.6 request

Merit matters

Introduction

Traffic and parking issues

Introduction

The expert evidence on these issues

The proposed Roads and Maritime Services’ conditions of consent

Waste collection from the site

Vehicle egress issues – the potential for pedestrian conflicts

Vehicle access for construction

Service vehicle access to the site

The adequacy of ventilation

Solar access

Introduction

Solar access for the proposed apartments

A more permissive solar assessment period?

Failure to explore more compliant design options

Conclusion on solar access

Conclusion

Orders

JUDGMENT

Introduction

1. Huajun Investments Pty Ltd (the Applicant) applied to the City of Canada Bay Council (the Council) for approval to develop a residential flat building at 38, 40 and 42 Leicester Avenue, Strathfield (the site). The proposed development includes three basement parking levels containing 74 parking spaces, with 65 residential apartments above. The total area of the site is 1,858.3 square metres (according to the survey plan submitted to the Council), with the combined frontage to Leicester Avenue of the three existing properties being 46.235 metres and a depth of between 40.135 metres and 40.245 metres. As a consequence of the somewhat complex procedural history associated with this proposed development, the development application, in an amended form, now comes before me for determination in these Class 1 merit appeal proceedings.

2. The site is zoned R4 High Density Residential under the Canada Bay Local Environmental Plan 2013 (the LEP). It is located in an area bounded by Leicester Avenue, Parramatta Road and the railway line. The area is known as the Strathfield Triangle (the Triangle).

Summary of outcomes

3. For the reasons which are set out in detail, I am satisfied that, on three separate bases, each of which is sufficient in itself to cause refusal, I do not have jurisdiction to entertain giving approval to the proposed development. However, lest I be wrong in all of these jurisdictional conclusions, I have also concluded that the proposed development does not warrant being granted development consent as a matter of merit assessment. In this regard, whilst I am satisfied that the extremely poor amenity outcome which would be achieved with respect to solar access across the apartments in the proposed development warrants merit refusal, in itself, I am also satisfied that there are other merit matters which would additionally contribute to warranting refusal of the proposed development.

The procedural history

4. The Applicant's development application was submitted to the Council on 1 November 2016. The application was subsequently deemed to be refused by the Council. As a consequence, the Applicant commenced a Class 1 appeal seeking that the Court grant consent to its proposed development.

5. As is now conventionally the position for appeals concerning applications of this type, the matter was set down pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) for a conciliation conference to be presided over by a commissioner. Pursuant to the Court Act, the Chief Judge assigned the matter to Commissioner Smithson. Smithson C conducted the conciliation conference between the Applicant and the Council on 15 and 20 February 2018. The outcome of that conciliation conference was an agreement on the terms upon which development consent might be granted to the Applicant's proposal in the form then before the Commissioner.

6. Under such circumstances, the only matter requiring to be addressed by the Smithson C, in her determination as to whether or not to give effect to the agreement between the Applicant and the Council, was whether the orders proposed as a result of the conciliation agreement were ones which the Court could lawfully make in the exercise of its functions (s 34(3) of the Court Act). The Commissioner determined that the proposed agreement was one which was permissible to be made and, as a consequence, that agreement was given effect (see Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087).

7. Al Maha Pty Ltd (the Neighbouring Owner) owns the property immediately to the south of the site. The plans which had been the subject of the consent purportedly granted by Smithson C nominated the Neighbouring Owner’s property as a future access point for the Applicant's proposed development, but nominated that the access to be constructed to give effect to the development was to be from Leicester Avenue, a controlled road requiring consent from Roads and Maritime Services (the RMS).

8. Such consent from the RMS for temporary access was provided, but only on the understanding that future access would be across the Neighbouring Owner’s property. It was envisaged that this access would become available as a consequence of the fact that the Neighbouring Owner’s property had been zoned RE1 Public Recreation under the LEP and was proposed to be acquired by the Council for this purpose and to enable a new road pattern to be established in the Triangle.

9. It is to be observed, to provide context at this time, that acquisition by the Council has been the subject of negotiations between the Council and the Neighbouring Owner but, to date, those negotiations have not been successful and the Council has not taken any steps to acquire the property compulsorily.

10. As a consequence, the Neighbouring Owner remains the only entity which can grant owner’s consent for development on its property in satisfaction of cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) made pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act), and not the Council. The Neighbouring Owner has not given any consent to designating its property as being a future access point for the Applicant's proposed development.

11. Absent consent from the Neighbouring Owner, no approval was within the power of the Court to grant development consent in a fashion which purported to involve future activities on the Neighbouring Owner’s property.

12. With the consent of the Applicant and the Council, Smithson C purported to use the Slip Rule (r 36.17 of the Uniform Civil Procedure Rules 2005) to rectify the position by removing references to the Neighbouring Owner’s property from the consent purportedly granted arising from the outcome of the conciliation conference between the Applicant and the Council.

13. As the Neighbouring Owner was not a party to the proceedings resulting in the purported grant of approval by Smithson C, there was no right of appeal pursuant to s 56A of the Court Act available to the Neighbouring Owner. The Neighbouring Owner, therefore, commenced proceedings in the Supreme Court, in its general supervisory jurisdiction, pursuant to s 69 of the Supreme Court Act 1970, seeking to have the development consent purportedly granted by Smithson C through the conciliation conference process set aside.

14. That application was heard and determined by the Court of Appeal. The Neighbouring Owner was successful and the purported consent was set aside and the matter remitted to this Court to be determined (see Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 245).

15. The Neighbouring Owner then applied, pursuant to s 8.15(2) of the EP&A Act, to be joined as a party to the (now remitted) Class 1 appeal proceedings. On 29 November 2018, Robson J determined that it was appropriate that the Neighbouring Owner be joined to the proceedings as the Second Respondent (see Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194). His Honour's orders giving effect to that determination made it clear, in order (4), that:

(4)   The second respondent’s contentions are limited to those identified in paragraph [16] (1), (2) and (3) of the judgment of Justice Robson dated 29 November 2018.

16. The Chief Judge subsequently assigned the Class 1 merit appeal to me for determination.

17. The attitude taken by the Applicant and the Council to the terms of order (4) set out above was not merely that the identified matters were the only additional contentions to be addressed as a consequence of the joinder of the Neighbouring Owner as the Second Respondent but that the Neighbouring Owner’s experts were only permitted, in the joint conferencing process leading up to the hearing before me, to address those matters arising out of the additional contentions nominated in the order. The Applicant and the Council took the view that those experts were not permitted to engage with the contentions that had been originally pressed by the Council as warranting refusal of the Applicant's proposed development.

18. The next procedural step to be noted is that, on 10 January 2019, Acting Registrar Walton granted the Applicant leave to rely on a further amended development application, including a suite of amended plans. The Acting Registrar agreed to a submission from the Council that further public notification would be required of these amended plans. As a consequence, in addition to the hearing dates of 24 and 25 January 2019, which had initially been allocated before me, an additional hearing date was allocated on 15 February 2019 to permit any further public submissions concerning the Applicant's now revised development to be addressed.

19. The final procedural matter requiring noting is that, on 18 January 2019, the legal representatives of the Neighbouring Owner (now the Second Respondent) filed a Notice of Motion seeking, as its functional outcome, the removal of order (4) made by Robson J and set out earlier at [15]. This order was sought as what was considered to be, by the Neighbouring Owner’s legal representatives, the appropriate way to permit the Neighbouring Owner’s experts to address the full range of contentions in the proceedings (being the contentions pressed by the Council together with those imported as a consequence of Robson J's order (4)).

20. As the Neighbouring Owner’s Notice of Motion had been set down for determination at 9:30 am in Court on 24 January 2019 (being the first day of the merit appeal hearing before me; a merit appeal hearing set down to commence on site at that time), I had my Associate contact the parties and advise them that I proposed to deal with the motion prior to the nominated date as the outcome of the motion had potential impact on how the merit hearing ought be conducted.

21. On the afternoon of Tuesday 22 January 2019, I dealt with the Notice of Motion on behalf of the Neighbouring Owner seeking the deletion of order (4) of the orders made by Robson J. Written submissions were provided to me, prior to this hearing, on behalf of the Neighbouring Owner and the Applicant.

22. A reading of these submissions (and the affidavit which had been filed on behalf of the Neighbouring Owner in support of its motion), made it clear that the issue sought to be canvassed did not relate to the scope of the contentions permitted to be advanced by the Neighbouring Owner (these having been defined by Robson J's order (4)) but was confined to the extent to which the planning and traffic experts engaged by the Neighbouring Owner were entitled to participate in joint conferencing with the relevant experts on behalf of the Applicant and the Council and to contribute to the relevant joint expert report arising from such conferencing. As a corollary to this, the extent to which the Neighbouring Owner was to be permitted to make submissions about matters put in contention by the Council (rather than merely those permitted by Robson J's order (4)) was also involved.

23. Whilst the written submissions and the matters canvassed (briefly, but heatedly) at the commencement of the hearing of the motion undoubtedly gave rise to potentially forensically fascinating jurisdictional and ethical issues, those matters and the substantive outcome sought in the motion were, as I advised the parties early on in the motion hearing, irrelevant to the matters actually in dispute between the parties. It is, fortunately, unnecessary to set out or determine any of those potentially forensically fascinating matters as there was a simple path to determining the underlying dispute.

24. It turned out that the Neighbouring Owner's town planner had been permitted to participate fully in both that joint expert conclave and to express her views on all relevant matters in the joint expert report arising from it. A similar position, it was put on behalf of the Neighbouring Owner, had not arisen with respect to the Neighbouring Owner’s traffic expert.

25. As the question of how the merit hearing was to be conducted lay in my hands, as the trial judge, and given the discretion embodied in s 38(2) of the Court Act as to the way in which I might inform myself about the issues genuinely in dispute in the proceedings (subject, always, to the principles of procedural fairness and natural justice), I directed that the Neighbouring Owner’s traffic expert was to be permitted to engage with the relevant experts of the other parties. The process for permitting this to occur (whether prior to the commencement of the hearing on site or subsequent to that inspection) was to be resolved informally.

26. I also ruled that the Neighbouring Owner, having been joined, was a party for all purposes and was only subject to the limitation as to the additional contentions permitted to be pressed on its behalf by the scope of order (4) made by Robson J. This meant that, when the matter came to the merit hearing, counsel for, and experts engaged by, the Neighbouring Owner were to be permitted to make submissions about or give evidence concerning (as relevant to their role) all matters put in contention concerning the appropriateness of the Applicant's development application in the form as it finally came before me for determination.

16. In dealing with the procedural matters genuinely in dispute between the parties (consistent with the objectives set in s 56 of the Civil Procedure Act 2005 (the Civil Procedure Act)), it was neither necessary nor appropriate to read the affidavit of the Neighbouring Owner’s solicitor filed in support of the Notice of Motion. Given that those issues had been dealt with in a pre-trial case management fashion, the outcomes sought in the motion were redundant. As a consequence, I dismissed the motion and reserved the question of costs with respect to it.

Counsel in the proceedings

28. The Applicant was represented by Mr Tomasetti SC and Mr Doyle, barrister. The Council was represented, during the substantive hearing, by Ms Irish, barrister. The Neighbouring Owner was represented by Mr Robertson SC.

The issues

29. The issues in the proceedings fall into two distinct categories. First, it is contended by both Respondents that there are jurisdictional impediments that prevent development consent being granted to the Applicant's proposed development. These impediments are said to be:

• The Applicant has not demonstrated that access from Hilts Road for a development on the site is not practicable and, thus, cl 101(2)(a) of State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP) acts to prohibit giving consent to the proposed development having access from Leicester Avenue;

• The Applicant has not demonstrated that the design of the vehicular access to the site will not adversely affect the safety, efficiency and ongoing operation of Leicester Avenue (a classified road) and that, as a consequence, cl 101(2)(b)(1) of the Infrastructure SEPP acts to prohibit giving consent to the proposed development having access from Leicester Avenue; and

• The request for dispensation with compliance of the mandated building height limit set by cl 4.3 of the LEP does not satisfy the necessary requirements of cl 4.6 of the LEP and, thus, the dispensation cannot be granted.

30. If any one of these issues is resolved adversely to the Applicant, development consent to the proposed residential flat building must not be granted.

31. The second suite of issues that are pressed by both Respondents are ones where it is said that, on the merits of the proposed development, the design of the proposed development is sufficiently unmeritorious that consent should not be granted on the basis of the present design. There are a range of matters pressed on this basis. Both Respondents submit that, taken together, these merit matters warrant refusal of the application. These merit matters fall into three broad areas:

1. Access and vehicle servicing;

2. Solar access; and

3. Whether or not a sufficient number of apartments in the proposed development would have adequate ventilation.

The evidence

Introduction

32. Extensive documentary material was tendered (including copies of very many pages of documents to only limited elements of which I was taken during the course of the hearing, or, indeed, to which no reference was made at all). As I observed during the course of the hearing, despite the Court’s encouragement over years that unnecessary photocopying expenses and environmental impact was to be avoided, that has not occurred in these proceedings. Undoubtedly, this approach has imposed a significant extra cost on the parties (particularly on the Council on whose behalf four large volumes of hundreds of pages of photocopying were tendered including the entirety of various statutory documents to which but limited reference was made). This has imposed not only the environmental burdens of this photocopying, but undoubtedly significant and unnecessary financial costs on the Council and its ratepayers.

33. Reference will be made later, as necessary, to various elements of this documentary material.

34. Expert evidence was given (both in writing and orally) from witnesses in two expert disciplines. These disciplines were town planning/urban design in one grouping and traffic/parking in the second. The witnesses in these disciplines were:

Planning/urban design

• Dr Sheils, town planner for the Applicant;

• Mr Johannsen, urban designer for the Applicant;

• Mr Giaprakas, town planner for the Council; and

• Ms Francis, town planner/urban designer for the Neighbouring Owner.

Traffic/parking

• Ms Marshall-McClelland, for the Applicant;

• Mr MacGillicuddy, for the Council; and

• Mr Morse for the Neighbouring Owner.

The planning regime

Introduction

35. The planning controls which require consideration in these proceedings are to be found in five planning documents. These are:

1. The LEP;

2. The Infrastructure SEPP;

3. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and, particularly, the attendant Apartment Design Guide (ADG);

4. The City of Canada Bay Development Control Plan 2017 (the DCP); and

5. The Strathfield Triangle Development Control Plan 2014 (the Triangle DCP).

The relevant provisions of the LEP

Introduction

36. There are three elements of the LEP that are engaged for consideration in these proceedings. They are:

1. The objectives for the R4 High Density Residential Zone contained in the Land Use Table of the LEP;

2. The objectives of cl 4.3(1) Height of Buildings; and

3. The terms of cl 4.6, a beneficial and facultative provision that permits a written request to be made to dispense with compliance with a development standard that would otherwise act as a barrier to a proposed development. In this instance, the Applicant requests dispensation from compliance with the limiting building height which would otherwise apply to the site. It is to be observed that, each time the Applicant’s development application has been amended, it has been necessary to seek leave to rely on a revised request pursuant to this provision. Although the merits of the cl 4.6 request are in contest and require later detailed consideration, there was generally no objection from either Respondent to the Applicant relying on the various iterations of the cl 4.6 request, ones prepared successively as the plans for the proposed development have evolved by the various amendments to the Applicant’s development application since this appeal was lodged in 2 May 2017.

However, a separate, significantly different cl 4.6 request was sought to be relied upon late in the proceedings. This cl 4.6 request was rejected as later discussed.

37. It is, therefore, appropriate to set out the relevant provisions of the LEP.

The R4 zone objectives

38. The objectives of the R4 zone 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.

The height of buildings clause

39. The height of buildings development control standard is derived from a combination of cl 4.3 of the LEP and the relevant element from the applicable sheet of the height of buildings map imported by reference. The LEP clause is in the following terms:

4.3   Height of buildings

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

(a)   to ensure that buildings are compatible with the desired future character in terms of building height and roof forms,

(b)   to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.

(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.

Clause 4.6 of the LEP

40. This provision of the LEP provides the basis by which a development proponent can seek dispensation from compliance with an applicable development standard. As later discussed, the clause sets tests which must be satisfied before such a dispensation may be granted. The clause is in the following terms:

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.

Clause 101 of the Infrastructure SEPP

41. State Environmental Planning Policy (Infrastructure) 2007 sets a number of tests for consideration and satisfaction when a development is proposed where the site is one with a frontage to classified road (Leicester Avenue being such a road). The clause is in the following terms:

101   Development with frontage to classified road

(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 emission 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 and safe, 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 vehicle emissions within the site of the development arising from the adjacent classified road.

The relevant provisions of the DCP

42. Although the Triangle DCP contains specific provisions applicable to this limited portion of the Council’s local government area, the provisions of the DCP also continue to apply to the Triangle to the extent that any of the general provisions are relevant and not overtaken by the provisions of the subsequently adopted Triangle DCP.

43. Relevant to matters requiring my consideration, the DCP contains, in Control C4.3.C9, a relevant provision relating to access clearances for basement car-parking areas in residential flat buildings. That provision is not superseded by anything contained in the Triangle DCP, and therefore applies to this proposed development. The clause is in the following terms:

A centralised waste and recycling room must be provided in an area that is accessible to the users and easy for servicing. The waste and recycling room must be located within the underground carpark or basement. The clearance to the garbage room must be no less than 3.8 m high to allow waste collection vehicles to service bins on site. Waste collection vehicles must move in a forward direction at all times. Where it is not possible to provide this level of access for waste collection vehicles, an alternate area will be required for bin servicing and/ or storage. The alternate area must be located on the property boundary line, have a layback of suitable size and be constructed to accommodate collection vehicles. For OH & S reasons access to the alternate servicing/storage room for servicing shall be from the layback to ensure bins are serviced with minimal handling.

The Triangle DCP

44. The Triangle DCP came into effect on 30 May 2014. Self-evidently from this date, its terms could not have applied to those residential flat buildings which had earlier been constructed within the Triangle. All of the residential flat buildings which had been observed during the course of the site inspection had been constructed under the previously applying development control regime.

45. This proposed development is the first in the Triangle to be assessed against what is now contained in the Triangle DCP. Of particular relevance are two plans contained in the DCP.

46. The first is that showing the proposed new street layout that is intended to follow from, amongst other things, the proposed acquisition by the Council of the Neighbouring Owner’s land. This plan shows the through-connection from the proposed extended head of Hilts Road, the proposed new south-running lane from that point to the reconfigured southern end of Cooper Street, and the reconfiguration of Cooper Street to alter its intersection location with Leicester Avenue. This proposed intersection is to be signalised and located a little to the north of the present intersection between these two streets. This map (Triangle DCP, page 16, Map 5) is reproduced below:

47. Leicester Avenue is the right-hand boundary of this plan and the Neighbouring Owner’s land is the parcel traversed by the orange marked proposed pedestrian and cycle access joining the proposed new head of Hilts Road to Leicester Avenue.

48. The second map is one which shows what the Triangle DCP proposes be the number of storeys that will result from the redevelopment of each of the sites within the Triangle when the full redevelopment process has been completed.

49. In this context, it is to be observed that the site, the Neighbouring Owner’s land, and all other sites in the Triangle to the south of this site and to the south of both Hilts Road and Clarence Street, are yet to be redeveloped in any fashion and that the only visual evidence observed during the course of the site inspection was the arrangement of the security fencing toward the southern end of the Triangle where the configuration of the southern end of the laneway proposed to run southwards from the extended head of Hilts Road could be seen.

50. A copy of the map (Triangle DCP, page 10, Map 2) that shows the number of storeys anticipated to be achieved as a result of the finalised redevelopment of all sites in the Triangle is reproduced below:

51. As can be seen from this plan, the proposed redevelopment of the various sites with frontages to Leicester Avenue is envisaged to be taller at its northern and southern ends with stepping down and then up in the progression of the redevelopment outcomes. It is also to be observed that that which had actually been redeveloped prior to the coming into effect of the Triangle DCP is accurately depicted as to the number of storeys that have comprised the development yield on those redevelopment sites observed during the course of the site inspection.

52. The relevant LEP Height of Buildings map sheet element for the Triangle is reproduced below:

53. The relevant elements from the key to the map are reproduced below:

Site Key	Height in Metres
P1	17.0
T1	25.0
T2	26.0
U1	31.0
U2	32.0
V	35.0
W	41.0
Y	50.0
Z	59.0

The site inspection

54. As is customary in merit appeals such as this, the substantive proceedings commenced on site at 9.30 am on the first day. I was accompanied, during the course of the site inspection, by counsel for the three parties to the proceedings and those advising and instructing them. We met in Hilts Road, the road that is, at present, a dead-end street which runs east-west and terminates at the rear of the Neighbouring Owner’s property.

55. As later discussed in more detail (and was the cause of the litigation in the Court of Appeal to which earlier reference has been made), the Council proposes to acquire the Neighbouring Owner’s property. This acquisition will permit an extension to the east of Hilts Road and, on the remainder of the Neighbouring Owner’s property post-acquisition, the creation of a pedestrian and cycle access way from the end of Hilts Road, eastward to Leicester Avenue. This access way is to run adjacent to the southern boundary of the site, with the remainder of the Neighbouring Owner’s property post-acquisition becoming a community park.

56. The Council also proposes, as part of the overall scheme for the redesign of access patterns within the Triangle, the creation of a laneway running south from the proposed new head of Hilts Road. This proposed revised street pattern is made clear in the plan in the Triangle DCP reproduced earlier.

57. During the course of the site inspection, we circumnavigated the Triangle, using the existing road system footpaths. The salient elements of the site inspection are described below:

1. At the meeting point at the head of Hilts Road, I was shown the relationship of the present Hilts Road alignment with the boundaries of the Applicant’s site and the Neighbouring Owner’s property. We also observed the design elements of the eastern façade of the residential flat building with a frontage to Hilts Road and located immediately adjacent to the western boundary of the Applicant's site;

2. Also at the commencement of the site inspection, we observed a large number of waste and recycling wheelie bins that had been emptied and were being returned to the waste storage area for the residential flat building at the north-eastern end of Hilts Road. It was obvious that the waste collection from these premises was carried out on a kerbside basis with a significant number of each type of bin being placed out for the collection vehicle. Very limited on street parking was available in Hilts Road at the time of the site inspection. It is also to be noted that, during the remainder of our circumnavigation, we observed that kerbside waste and recycling collection services had also been effected for other residential flat buildings that had been redeveloped in the Triangle in the comparatively recent past;

3. During the walk along the northern footpath of Hilts Road, the footpath on the eastern side of Cooper Street to the north of Hilts Road and, turning to the west, the walk along Clarence Street, we observed the nature of the access apertures and height clearances to the basement car-parking of a number of existing residential flat buildings. These entrance apertures each had clearance heights that were only modestly above two metres. During this walk (and other relevant elements of the circumnavigation where redevelopment had already occurred), the heights of the various residential flat buildings were pointed out. It is to be noted, as it is a matter requiring further consideration later, that all of this redevelopment was undertaken prior to the coming into effect of the Triangle DCP and, thus, without the controls that are now proposed by the Triangle DCP, applying to them in the terms proposed by this DCP;

1. We walked along the Parramatta Road frontage of the Triangle, observing the nature of the landscaping in, and the extent of the setbacks of, the ground-level elements of the redevelopment within the Triangle along this its northern boundary. The entirety of this element of the Triangle, it is to be observed, has been redeveloped in the comparatively recent past;

2. As we walked along the Parramatta Road footpath between Cooper Street and Leicester Avenue, one of the buildings which we passed, an apparently mixed use one, had an access aperture signed having a 3.4 m clearance;

3. At the intersection of Leicester Avenue and Parramatta Road, we crossed the former to look backwards to the south-west to obtain a (comparatively limited) appreciation of the nature of the Triangle and such existing redevelopment as has been effected;

4. Whilst at this intersection, I observed the extent of queuing of northbound traffic in Leicester Avenue and the fact that, at this time, by now after 10.00 am, the extent of that queuing was not cleared by a single green-phase cycle of the lights at the intersection, when that green-phase cycle favoured northbound traffic in Leicester Avenue;

5. We then entered the large, publicly accessible communal open space of the residential flat building on the south-western corner of the intersection. From this courtyard (an extensive hard-stand area enclosed by the U-shaped redevelopment on this site but open to the south toward the rear of the Applicant’s site and the residential flat building at the head of the present configuration of Hilts Avenue, I was able to obtain a limited appreciation, from the ridgelines of the existing development to the south on the site and the first element on the Neighbouring Owner’s property, of the nature of the rear of these allotments. I was also able to observe, for the site, its relationship with the eastern façade of the residential flat building at the north‑eastern end of Hilts Road as that road is presently configured;

6. At a point along the Leicester Avenue frontage of the site, Ms Marshall-McClelland, the Applicant's traffic expert, showed me the general location of the driveway proposed to provide vehicle access from Leicester Avenue to the Applicant's proposed development. Although this identification gave rise, at that time, to potential issues concerning the fate of the three street trees (the southernmost being a camphor laurel with the two to the north being Brush Boxes), Ms Irish subsequently advised that the Council accepted that all three street trees would be removed if consent was granted for the Applicant's proposed development;

7. We entered one of the allotments within the site (the site being proposed to be consolidated as part of its redevelopment), walking through the now derelict dwelling on this allotment in order to observe, from within the site, the relationship of the site with the residential flat building at the north-eastern end of the present configuration of Hilts Road. Although, at this point and, earlier from the courtyard in the development on the south-western corner of the intersection of Parramatta Road and Leicester Avenue, the extensive vegetation that exists on the site was able to be observed, it is to be noted that the development for which consent is sought in these proceedings on the site would necessitate the removal of the entirety of the existing vegetation on the site, in addition to the three street trees at its frontage; and

8. We then completed our circumnavigation of the Triangle, observing, during this transit, the present arrangement of Cooper Street and its intersection with Leicester Avenue; the location of the proposed reconfiguration of Cooper Street and the location of its proposed new signalised intersection with Leicester Avenue after the closure of the present southern element of Cooper Street and its incorporation as part of the redevelopment sites to the north and east of that existing element; the fenced-off head area of what is proposed to become the north-south laneway at the point where that laneway will, when constructed, intersect with the proposed east-west realigned element of Cooper Street. We then returned to Hilts Road, from whence we had embarked.

The first phase of the hearing

58. The first two days of the hearings, after the site inspection, were largely taken up with opening submissions. However, portion of the second day was given over to the commencement of evidence on the town planning/urban design issues. Those issues are addressed later.

The further amended application

59. When the hearing resumed on 15 February 2019, Mr Tomasetti made a further application to modify the development application being assessed in these proceedings. The changes to the plans for which leave was sought were, for the very great part, reflective of the position proposed by Mr Tomasetti on the advice of Ms Marshall-McClelland during the earlier hearings.

60. This proposal, to lower the basement parking levels of the proposed development to make an increase in the clearance at the entrance ramp and on the first basement level, had, as an option, been the subject of discussion by the planning and urban design experts toward the end of the first phase of this hearing. The plans for which leave to amend was sought formalised that proposed change.

61. In addition, the plans proposed that the gate at the end of the footpath along the southern boundary within the site at its western end should be converted to be a sliding gate rather than a swinging one. This gate (however, not its method of actuation) requires further consideration later in this decision in the context of assessment of the adequacy of general access arrangements for the proposed development.

62. For the purposes of assessing this request for leave to rely on an amended development application, there was nothing in the nature of the proposed changes that was a matter of controversy and, as a consequence, the leave to amend was granted.

63. However, s 8.15(3) of the EP&A Act provides that, when such leave is given, it is necessary to consider whether or not the amendments to the development application before the Court were minor or not. If the amendments were not to be regarded as minor and leave to amend is granted, the legislation mandates that a costs order be made against the development proponent to recompense the consent authority for the additional costs incurred as a consequence of the amendments which have been permitted.

64. For the purposes of this amendment application, Ms Irish indicated that the Council considered that the amendments were not minor and, as a consequence, a compensatory costs order was required. Unsurprisingly, Mr Tomasetti disputed this proposition and indicated that the Applicant submitted that the amendments were, in fact, to be characterised as minor.

65. In order to permit the hearing of the evidence of the traffic and parking experts (which evidence effectively took the remainder of this hearing day), submissions on whether or not there was to be a costs’ consequence of the leave to amend were deferred and I indicated that I would deal with determination of that matter in this decision. I do so in the following section, for convenience in the flow of my reasoning.

Costs of the 15 February 2019 amendment

66. I have earlier set out the nature of the amendments for which leave was given on 15 February 2019. The purpose of the amendments was to alter the plans so that further clearance would be provided at the mouth of the building on the ramp into the first level of the basement. Also to be effected was an increase the clearance of that level of the basement in order to permit the proposed small waste collection vehicles (discussed later in this decision) to enter that upper level of the three basements for the purposes of undertaking waste collection.

67. The consequence of the increase in clearance would also be the further setting down of each of the two lower levels of the proposed basements but without increasing the presently proposed clearances on those basements. Self-evidently, the result of that is that the additional proposed excavation would simply be necessary for the additional clearance at the uppermost of these three basement levels.

68. In addition, the revised plans also incorporated two warning signage elements concerning clearance at the entry ramp mouth. The first of these was a height marking bar running in a north-south direction and the second was a sign on the northern wall of the substation forecourt. These are later discussed in a different context. For the present purposes, however, it is sufficient to observe that these additional signage elements are ones of modest proportions in the overall scheme of the proposed development.

69. Given the substantial nature of the overall development proposed, when coupled with the fact that there were no significant consequential design outcomes necessary to be effected as a consequence of these amendments, I am satisfied that the amendments are appropriate to be regarded as minor. As a result, there is to be no order for costs in favour of the Council for such additional assessment (insignificant as I would expect it to be, in light of the matter being dealt with in the evidence in the fashion as occurred) arising from the permitted amendment.

The mention on 20 February 2019

70. At a mention on 20 February 2019, four matters were raised for the Applicant. These were:

1. The preparation of additional expert evidence on behalf of the Applicant to address solar access and cross-ventilation issues arising out of assertions that had been made in the Design Verification Statement dated 11 January 2019. This had been presented to the joint conference of the town planning and urban design witnesses and discussed by them in their joint expert report (Exhibit 7) and accepted by Ms Francis, the relevant expert for the Neighbouring Owner, as incorporating the accurate position with respect to these matters. As a consequence of her subsequent further consideration of this Design Verification Statement compared to the plans for the proposed development, Ms Francis had concluded that that which was set out in the Design Verification Statement of January 2019 did not accurately reflect the position disclosed by the plans concerning solar access and cross-ventilation. The further evidence to be provided by the Applicant for the purposes of the resumed hearing in March 2019, was to address these issues and to provide an updated Design Verification Statement;

2. Mr Tomasetti indicated that Ms Marshall-McClelland had provided an explanation of the discrepancies in the evidence concerning pedestrian counts. He indicated that her explanation was that there had been transpositional errors in entering the raw data which had been harvested into the modelling software which had been used. A copy of this explanatory material was to be provided to the other parties for consideration and the question of its admission into evidence dealt with on the next hearing day.

3. Although the matter had been set down for two hearing days; had already taken up three full hearing days; and had been listed for a fourth hearing day, it was put to me that, in light of the fact that there had not been any significant time spent by the planning/urban design witnesses in the giving of their oral evidence, prudence dictated that a further, fifth hearing day being allocated. This was done.

The width of the site’s access to Hilts Road

71. During the course of this mention, I also drew attention to the fact that, during the course of the traffic and parking evidence, there had been some uncertainty as to the maximum potential width of the gate at the western end of the pathway where the site has a narrow boundary element between the northern boundary of the Neighbouring Owner’s property and the southern boundary of the allotment upon which the residential flat building at the eastern end of Hilts Road, on its northern side, was located.

72. This short boundary to Hilts Road is proposed to provide secondary pedestrian and, potentially, goods access to the proposed development.

73. This uncertainty arose as a consequence of the fact that the survey plan in evidence was not such that would permit easy scaling of that width (suggestions as to the width of the gap ranging from 800 millimetres to in excess of 1.2 metres were advanced). Because this was a matter potentially impacting on the ability to provide bulky goods servicing of the proposed development from vehicles parking or stopping in Hilts Road, knowing the precise width of that aperture was of some importance. I requested the parties to agree on what was that width and to provide me with that confirmation when the hearing next resumed.

The Applicant's 5 March 2019 proposed conditions

74. On 5 March 2019, Mr Tomasetti tendered documents setting out two additional conditions the Applicant proposed to be added to the conditions advanced by the Council, on a “without prejudice” basis – this document becoming Exhibit M. The additional conditions proposed by the Applicant were in the following terms:

1. Traffic safety measures including traffic management signage and a height clearance bar are to be installed to the development property driveway to Leicester Avenue , in accordance with detailed drawings prepared by Lyle Marshall & Partners dated 19.2.19; and

2. The gate from the premises to Hilts Road is to be a minimum width of 1.2 metres.

75. It is to be observed that the plans referenced in the Applicant's proposed additional Condition (1) formed part of Exhibit (M). These plans had been prepared by Ms Marshall-McClelland and require subsequent consideration in light of matters dealt with in the joint oral evidence of the town planning/urban design experts.

76. Although the width of the gate proposed to be specified by the Applicant's Condition (2) was not a matter of major controversy, issues relating to the utility of the gate for permitting deliveries from servicing vehicles parking in Hilts Road, together with the question of whether or not there needed to be some grade transition from the site to Hilts Road, also requires some later consideration.

The revised Design Verification Statement

77. On 5 March 2019, a revised Design Verification Statement was tendered, becoming Exhibit K. The town planning/urban design experts agreed that the elements of this document dealing with the solar access and the cross-ventilation issues were consistent with the detailed expert evidence, written and oral, given by Dr Al-Khalidy and discussed in the later merit assessment sections of this decision. As a consequence, nothing arose from this document requiring separate consideration.

An application to reopen is foreshadowed

78. For the purposes of undertaking closing addresses, the Respondents had agreed that Mr Robertson would make his closing submissions first. As a consequence, Mr Robertson finished making those submissions late on the afternoon of 6 March 2019. During the course of those submissions, he addressed, comprehensively, what he said were fundamental defects in the Applicant’s request pursuant to cl 4.6 of the LEP. The request had been prepared by Dr Shiels.

79. It is unnecessary, for the purposes of this discussion of what occurred when the hearing resumed on 25 and 26 March 2019, to detail those criticisms, Mr Tomasetti's response to them, or my conclusion as to the adequacy of the cl 4.6 request then before me. Those matters are dealt with in the separate discussion of whether that cl 4.6 request has provided a proper basis upon which I could conclude that the Applicant should be permitted the dispensation from compliance with the Building Height Development Standard otherwise mandated by the LEP.

80. The transcript of the afternoon of 6 March records Mr Tomasetti expressing his concern that the criticism made by Mr Robertson of the cl 4.6 request may have had validity. As these proceedings were to go over to a further day upon which Ms Irish would make her closing submissions, and Mr Tomasetti would reply, Mr Tomasetti foreshadowed that the Applicant might need to contemplate whether or not to seek to rely upon some further revision of the cl 4.6 request. His comments and the subsequent relevant exchange with me on this point warrant being set out. The transcript records (Transcript, 6 March 2019, page 61 line 27 to page 62 line 39):

TOMASETTI: Your Honour, I want to raise another matter, in Mr Robertson's submissions which could bear upon this question. I've heard Mr Robertson's carefully constructed legal and factual submissions on this cl 4.6 objection. I have looked at the transcript and I've also looked at the contentions that were raised. Much of what he's put going to the important matter of jurisdiction is not in any of the contentions which were raised either by the Council or his own client. As we listened to it, we hear the word jurisdiction, jurisdiction, jurisdiction, coming up continuously. This is really the first time that my learned friend has revealed the arguments that he wished to raise on these matters.

I've heard his submissions in relation to that part of the cl 4.6 objection that relates to the abandonment argument. I have to confess and concede that that part of the objection could probably has missed the mark entirely, by addressing earlier planning instruments, but that was never the subject of the contentions that were permitted to be raised. The contention that was raised against us, by Mr Robertson's client was Robson J contemplated and permitted to be advanced is that found in para 3(i) which reads as follows "my client's revised cl .46 objection does not deal with the issue that part of the proposed development has a height of 12.5 metres where the maximum building height at that point is zero metres".

That was the contention his client was going to advance which were subsequently abandoned.

ROBERTSON: We're addressing a 4.6 request that wasn't made at that time.

TOMASETTI: But it doesn't matter Mr Robertson, the contention ‑ you're bound by your contention and by his Honour Robson J orders.

HIS HONOUR: No. I thought I dealt with on, I think, 15 February. What his Honour limited was the additional contentions Mr Robertson's client was permitted to plead. He did not limit the totality of the contention including the Council's contentions that Mr Robertson's client was permitted to seek to maintain.

TOMASETTI: Your Honour, with respect, it may have been my fault because I paused, but I was about to add that qualification, and the contention of the Council is relevantly found in para 3 of their statement of contentions. I'm seeking instructions your Honour, but I want to foreshadow, that if it comes down to a question of technical compliance of a written document with the requirements of cl 4.6 I'm going to seek an opportunity to revise that document and put it before your Honour. I can't do these addresses and‑‑

HIS HONOUR: If that were even remotely to be contemplated, I'm not going to deal with that on the run because cl 4.6 that is the tests that are contained in cl 4.6 at least as I understand it, have been in contention for some time. Even if they are not, they contain jurisdictional tests which, unless I'm satisfied about them, I am unable to go further and I am concerned that saying well we might want to try and rely on a further cl 4.6 request, a recast document, without going to whatever might be in it, it seems to me that there is at least some significant potentiality that Aon type issues might arise. I'm not going to try and deal with that on the fly.

TOMASETTI: I may have to put on a motion.

HIS HONOUR: You may, but at the moment, and I hear that you may, and I'm not making any comment about your right to do so or otherwise or what might be said for or against whatever proposition was contained in that motion. At the moment I am anxious to find an additional two hours to permit the present course of these proceedings to be finalised. If between now and then you are instructed to file some motion seeking to do something else, then I'll deal with that the necessary time.

81. As can be seen from about the mid-point in the above extract that Mr Tomasetti foreshadowed what he described as “an opportunity to revise that document [the cl 4.6 request]”.

An application to reopen is made

The reopening application

82. On the afternoon of 21 March 2019, a Notice of Motion was filed for the Applicant seeking leave to reopen the proceedings in order to rely upon a document identified as being a “Further Revised” cl 4.6 request. The Notice of Motion was accompanied by an affidavit from Dr Shiels. This affidavit had been deposed on 21 March 2019. It had exhibited to it a folder of material, including the cl 4.6 request proposed to be relied upon if leave to reopen was granted.

83. Although Dr Shiels referred to the history of the past evolution of the cl 4.6 request that became Exhibit C, it is not necessary to reproduce those elements of his affidavit. It is, however, appropriate to set out what are the relevant elements of his affidavit dealing with the reasons for, and development of, the “Further Revised” cl 4.6 request for which leave was sought by the Notice of Motion. Those paragraphs are (4) and (34) to (37) of Dr Shiels’ affidavit. Those paragraphs appear below:

4   I have now prepared a further amended written request under clause 4.6 of the CBLEP. I have read extracts of a transcript of the submissions of Senior Counsel Mr Robertson of 6 March 2019 to the Court criticising the existing clause 4.6 written request. At no point in the joint report did Ms Francis criticise the clause 4.6 request that I had then written.

…

Second Respondent’s comments in closing submissions

34   The Applicant’s solicitors provided me with a copy of the extracts from and the transcript from the hearing in these proceedings on 6 March 2019. I read Mr Robertson SC’s closing submissions where I saw that detailed criticisms were made of My Second Further Revised Clause 4.6 request.

35   Reading the extracts of the Second Respondent’s closing submissions was the first time that the concern of any party or the Court regarding the content or form of the clause 4.6 request had been brought to my attention.

36   I saw for example for the first time that my request was said to be in error where it asserted that the buildings along Parramatta Road were non-compliant with the mapped heights for those land parcels under the amended LEP. There were also arguments relied upon in the clause 4.6 request that were criticised by the Second Respondent in closing as to whether the objectives of the height standard would be “thwarted” if the standard was applied strictly, whether the standard has been “abandoned or destroyed”, and whether objective 3 of the High Density residential zone was affected by the height variation. Mr Robertson also contended that the clause 4.6 request did not ask the “correct question” with reference to various Court authorities. I did not see those issues identified in the Contentions raised by either Respondent, nor were they considered in the joint planning report.

37   After reading those criticisms, I felt some of the criticisms of my clause 4.6 request were valid. My reference to the Bakehouse was not justified. I made an error arguing that the Council had abandoned its height standard in the Canada Bay LEP 2013. To that end, I have now prepared an amendment to the Second Further Revised Clause 4.6 which is called “Further Revised Clause 4.6 Application to Vary a Development Standard: Height of Buildings” dated 21 March 2019 (Third Further Revised Clause 4.6). I sought and received legal advice concerning recent authorities concerning clause 4.6. The Third Further Revised Clause 4.6 responds to the Second Respondent’s submissions raised on 6 March 2019 and corrects errors that I have since identified within the document. Refer to Tab 8 of Exhibit GAS‑1.

84. Dr Shiels was cross-examined at some length on the basis not only of the version of the cl 4.6 request now sought to be relied upon, but also on the basis of a “tracked changes” version of the document that enabled an understanding of the extent to which changes had been made to the version of the cl 4.6 request then in evidence as Exhibit C. The tracked changes version of the (now) proposed cl 4.6 request became Exhibit 22.

85. Dr Shiels was also cross-examined on the process of preparation and settlement of the terms of his affidavit in the period leading up to his adoption of it.

Consideration and conclusion on reopening application

86. It is unnecessary for me to analyse, in great detail, that which was revealed by the cross-examination of Dr Shiels on these matters. It is sufficient to make some brief observations of the factual conclusions to be drawn from this cross-examination and also from the terms of Exhibits 22 and 23.

87. First, it was clear from Dr Shiels’ oral evidence, and from the terms of e-mail exchanges between Dr Shiels and the Applicant's solicitors (e-mails which became Exhibit 23), that the original version of the proposed content of Dr Shiels’ affidavit had been prepared by the Applicant's legal advisors entirely without input from him. The e-mail exchanges in Exhibit 23 made it clear that there were a number of iterations of the draft affidavit in which Dr Shiels’ proposed that changes be made to the draft to reflect what he considered to be the appropriate content of his evidence.

88. Whilst many of those changes might be regarded as minor, or merely matters of form, others were of a more substantive nature.

89. It is not necessary for me to undertake a detailed analysis of those changes proposed by Dr Shiels, it is sufficient to note that at least some of the more substantive elements proposed by Dr Shiels for incorporation in his affidavit did not find their way into the executed version of the document filed in support of the Notice of Motion seeking leave to reopen.

90. Second, the tracked changes version of the proposed cl 4.6 request involved substantial alterations to the document in Exhibit C. Although I accept Dr Shiels’ oral evidence that some elements of the new version simply constituted rearrangement of various existing elements in Exhibit C, my examination of Exhibit 22 leads to the conclusion that significant elements of the rearranged material (if not virtually its entirety) were matters of a factually descriptive nature rather than the analytic elements contained in the document necessary to address matters mandated by cl 4.6(3) of the LEP.

91. Of the analysis required by the clause as had been set out in Exhibit C, significantly large proportions of it (well more than a majority, in my assessment) had been deleted and replaced with material that was substantively different to that which had been advanced in Exhibit C, as the basis for satisfying the mandated tests for the dispensation from compliance with the otherwise mandated height limit. The document now sought to provide the basis for this dispensation is not, in reality, a mere revision but is, more truthfully, substantially a new document.

92. Finally, with respect to the content of this proposed substituted analysis, I have no proper understanding of how much (or, perhaps more correctly, how little) of the analysis in fact reflects Dr Shiels’ opinion rather than words put in his mouth, like the words from a marionette in a sophisticated puppet show.

93. Dr Shiels admitted, whilst under cross-examination, that the version of the document exhibited to his affidavit was the product of not merely extensive drafting by the Applicant's lawyers, but had been the subject of two separate “workshops” (to use Dr Shiels’ own expression) conducted in the chambers of Mr Doyle, the Applicant's junior counsel, with the active participation of Mr Doyle and Ms Edwards, an instructing solicitor on behalf of the Applicant. During one of these workshops, there was also telephone conference participation by an architect from the firm who have prepared the plans of the proposed development for which consent is sought.

94. There are three reasons why I concluded that it was not appropriate to permit the Applicant to substitute what was, in any substantive analysis sense, a virtually fresh cl 4.6 request to that which had been relied upon since the commencement of the hearing. Although a range of minor amendments had also been made, they were of an entirely corrective nature to reflect changes in the various plan iterations arising from amendments that had taken place during the course of the hearing process. These reasons were:

1. The material came in response to the closing submissions by Mr Robertson for the Neighbouring Owner at a time when all the evidence had closed and, having heard Mr Robertson's submissions, Mr Tomasetti identified the possibility of a significant deficiency in the material upon which the applicant had relied. The proposed development, with its height exceedence, had first come before Smithson C for the purposes of a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 in February 2018.

Although the design had changed significantly as a consequence of the Court of Appeal decision, the necessity for a successful cl 4.6 request was not altered by that decision. Acquiescence to permitting non-compliance with the building height mandated by the LEP had been a live matter for the whole of that time. No good reason was advanced as to why the necessity for a fresh document had not been identified at an appropriate earlier time. This delay, in itself, is sufficient to refuse the application for leave (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98] – [103] and [113] - [114]);

2. Second, for the reasons I have earlier set out, if leave was given to rely on the new document, I could not be confident that that which was contained in it was a true reflection of Dr Shiels’ evidence. Despite Dr Shiels indicating, in re-examination, that the opinions expressed in the proposed cl 4.6 request were ones which he could adopt and support, the nature of the workshopping process involving Mr Doyle and Ms Edwards whereby the bulk of the analysis (setting aside the rearrangement of the earlier factual material which could be attributed to Dr Shiels) was such that I was not able to conclude that the document genuinely reflected Dr Shiels’ opinions.

As Ms Irish said, as a rhetorical flourish during her closing submissions on the Motion, I would be, in some doubt as to who would be the appropriate author to have in the witness box with the town planners for the Council and the Neighbouring Owner if I permitted reliance on the new document (as I had concluded that further joint conferencing and expert planning evidence would be appropriate if I was to permit reliance on this new document). This, in itself, was also, in my view, a sufficient basis to reject giving leave to amend; and

3. Third, the question of the adequacy of the cl 4.6 request had been in play since the first Statement of Facts and Contentions filed by the Council on 24 May 2017. Although the pleadings did not expressly engage with what were said to be the inadequacies of the document in the fashion proposed to be addressed by the revised request, nonetheless, the adequacy of the document had been in contention for the whole of that period. In addition, although the matters pleaded by the Council and, to a very limited extent, by the Neighbouring Owner did not precisely reflect matters pressed by Mr Robertson in his closing submissions, the position is that the adequacy of the cl 4.6 request had been in play throughout the hearings before me.

It is to be observed that the various tests set out in cl 4.6(4) are jurisdictional and the failure to satisfy any one of them acts to prevent the request from being agreed. The importance of a satisfactory cl 4.6 request is, therefore, of fundamental importance to the granting of development consent for this development proposal. No satisfactory reason was advanced to explain why the deficiencies necessitating the new document had not been identified earlier. This reason would not, in itself, warrant refusal of leave to amend but does reinforce my first reason of the unacceptable lateness of the application seeking to amend.

95. The primary objective for litigation of this type is set by s 56 of the Civil Procedure Act 2005. This is the just, quick and cheap resolution of the issues genuinely in dispute between the parties. Had I granted leave to amend, it was my estimate that at least a further two, and possibly three, hearing days would be required. Although a costs order in favour of each of the Respondents would have provided at least partial compensation for that time and expense, I also considered that this would not be an adequate response given the lateness of the application providing the first reason for rejection of the application for leave to amend.

The jurisdictional issues

The Infrastructure SEPP

96. Leicester Avenue is a classified road. It carries high volumes of traffic. The proposed driveway to access the proposed development on the site is to be located approximately 80 metres to the south of the intersection of Leicester Avenue and Parramatta Road.

97. For the purposes of a development application seeking consent for a new access/egress point on a classified road, the RMS is mandated as a concurrence authority. By letter dated 12 January 2019, the RMS advised the Council that it was prepared to grant its concurrence to the proposed access/egress arrangements, provided that 16 conditions, set out in the RMS letter, were imposed as part of the suite of conditions that would be attached to any development consent granted to the Applicant for the site. Those proposed conditions have been incorporated by the Council in its draft “without prejudice” conditions of consent (Exhibit 8). Mr Tomasetti has advised that the Applicant has accepted the Council’s conditions in their entirety (expressly including the conditions proposed by the RMS).

98. Although the RMS provided a further letter (Exhibit 16) indicating it had no objection to the revised access and basement level one clearances, nothing turns on this.

Clause 101 of the Infrastructure SEPP

99. As earlier noted, the Infrastructure SEPP contains, in cl 101, the relevant provisions concerning proposed development that has a frontage to a classified road such as Leicester Avenue. The clause contains jurisdictional prerequisite requirements to be fulfilled prior to the granting of development consent for a proposal fronting a classified road. The clause is now repeated with the elements giving rise to these jurisdictional considerations in bold:

101   Development with frontage to classified road

(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 emission 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 and safe, 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 vehicle emissions within the site of the development arising from the adjacent classified road.

Clause 101(2)(a) of the Infrastructure SEPP

The Neighbouring Owner’s position

Introduction

100. The first of the two matters proposed by Mr Robertson as warranting refusal of the proposed development was what he advanced as the jurisdictional requirements of cl 101 of the Infrastructure SEPP not being satisfied. This arose, he submitted, for two separate reasons.

101. The first was that there was no evidence that the Applicant had taken any steps whatsoever to explore legally available options for achieving access from Hilts Road, on the basis of the present configuration of the eastern end of Hilts Road (and setting aside the potentiality for the future acquisition of the Neighbouring Owner’s land to achieve the Triangle DCP’s vision for the future extension of Hilts Road). This meant that, he submitted, the test of practicability set by cl 101(2)(a) of the Infrastructure SEPP could not be satisfied and that, therefore, refusal of the proposal was mandated.

102. Second, he submitted that I could not be satisfied that the vehicle access from Leicester Avenue as proposed would be safe and that this was a second, independent mandatory requirement that was not able to be satisfied. He proposed that this, separately, raised a jurisdictional barrier to the granting of consent to this proposed development. This test is said to arise from cl 101(2)(b)(i) of the Infrastructure SEPP.

The practicability of rear access

103. The first test, set by cl 101(2)(a), requires me to assess whether practicable and safe access from a local road is available to the site. Only if I am satisfied that no access from a local road which satisfies each of these criteria is the first of the prohibitory criteria in cl 101(2)(a) is satisfied, thus permitting me, standing in the shoes of the Council as the consent authority, to engage with the question of whether prohibitory criteria set by cl 101(2) are also satisfied.

104. The position advanced on behalf of the Neighbouring Owner has, as its foundation, the proposition that there is no basis upon which I could be satisfied that access to a proposed development on the site could not practicably be obtained from Hilts Road. There were a number of strands woven together as to support this proposition.

105. The first of them, as I understood Mr Robertson's submissions, was that the basis upon which the RMS formed the requisite degree of satisfaction, that the provision did not act as a barrier to it issuing terms of approval for access from Leicester Avenue, was that, within the RMS, there had been a fundamental understanding of the effect of the decision of the Court of Appeal in Al Maha. Exploration of the basis for this submission occupied a deal of the time of Mr Robertson's cross examination of Mr Pegg, the Senior Land Use Planner employed by the RMS, who had had the major role, under supervision of the signatory to the letters, in the preparation of the RMS’s letters agreeing to permanent access to the proposed development being from Leicester Avenue.

106. It is, I am satisfied, unnecessary for me to address that element of the submissions on behalf of the Neighbouring Owner as the RMS was not (and is not) the consent authority for the purposes of cl 101 of the Infrastructure SEPP. This is because the term “consent authority”, in this environmental planning instrument, is not relevantly defined to mean the RMS and has, as its ordinary and natural meaning, the position that the Council was the consent authority and thus, in this appeal, that role is to be fulfilled by the Court.

107. It is in that context that I turn to consider whether or not practicable and safe access to a proposed development on the site cannot be obtained from a local road (Hilts Road).

108. First, I observe that there is no suggestion that access from Hilts Road would not be safe.

109. However, the jurisdictional question here engaged is whether such access from Hilts Road could be regarded as not being practicable.

110. Mr Robertson's submission was that the Applicant had not explored any of the potential ways by which access via Hilts Avenue might have been able to be achieved. He proposed that there were a number of ways that such access might have been achieved.

272. As can be seen from the above extract, Dr Al-Khalidy relied on a report setting out the results of computer modelling based on Computational Fluid Dynamic Analysis. Although he had not, personally, undertaken this modelling, the modelling had been undertaken by an employee of his consultancy and that this modelling had been undertaken under Dr Al-Khalidy’s supervision. That modelling, in a document entitled “38-42 Leicester Avenue, Strathfield Natural Ventilation Assessment” and dated 18 July 2017 became Exhibit O.

273. In Exhibit O, the modelling was described in the following terms:

A computer model of the development was created and Level one, two, five and six apartments were included for detailed numerical assessment. The Computational Fluid Dynamics (CFD) specialised software FLUENT was used to model the following wind directions.

•   North east

•   South east

•   South

•   West

In each case a wind speed of 1.66 m/s was used.at 10 m high. Based on actual wind data across 11 years, the average wind speed measured in Sydney Olympic Park is higher than 2 m/s, 69% of the time. Windows and sliding doors shown in the site plans were assumed to be fully open for the model. Simple blocks were used for nearby surrounding buildings to include the impact of the surroundings on the natural ventilation for the proposed building. All velocities in the following images are in metres per second and the simulation results are presented at a typical chest height of 1.5 metres above the floor level.

5.2   Results

To be considered natural ventilated, wind speeds in the apartments should be at least 0.1-0.2 m/s and provide ventilation through at least two rooms. If an apartment meets the requirements for three of the four wind directions it will be considered to be cross ventilated.

6   CONCLUSION

SLR has been engaged by Huajun Investments Pty Ltd to quantitatively assess the natural ventilation in the proposed development at 38-42 Leicester Avenue in Strathfield using CFD analysis. The assessment forms part of the Development Application to Canada Bay Council.

The State Environmental Planning Policy (SEPP) 65 supported by the Australian Design Guide is relevant to to the assessment of the natural ventilation through residential components of proposed development. Section 4B-3 of the Australian Design Guide states that:

At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building. Apartments at ten storeys or greater are deemed to be cross ventilated only if any enclosure of the balconies at these levels allows adequate natural ventilation and cannot be fully enclosed.

By adding the CFD modelling to the previous qualitative analysis SLR estimates that 68.6% of the apartments will be naturally cross ventilated.

274. The structure of the modelling was to test the extent of internal ventilation that would be achieved in various proposed apartments under the four relevant prevailing wind directions. The wind data which was applied in this modelling used relevant wind directions and speeds from meteorological data captured at Sydney Olympic Park (Exhibit O, page 6).

275. Dr Al-Khalidy explained that, for any of the proposed apartments to be regarded as having adequate natural ventilation, in his opinion the test there noted above as being 5.2 had to be satisfied. This test had been applied in analysing the output from the modelling.

276. Although Dr Al-Khalidy was closely questioned by Mr Robertson about the appropriateness of the underlying assumptions that had been adopted for the modelling, Dr Al-Khalidy was not to be shaken on the proposition that the various windows and doors that had been assumed to be completely open for the purposes of the modelling had had that assumption adopted in a proper fashion.

277. Although Mr Robertson tested Dr Al-Khalidy on the question of how awning-hung windows were regarded as being fully open, given the nature of their operation and a lack of identification on the architectural plans as to what window types were to be implemented in each of the apartments, Dr Al‑Khalidy explained that, in addition to the architectural plans, a computer‑aided design (CAD) data file had been provided by the architects. The CAD file included detailed three-dimensional information enabling an understanding of the various styles of fenestration proposed for the design, Dr Al-Khalidy testified.

278. For the purposes of the discussion Dr Al-Khalidy had with Ms Francis and Mr Giaprakas, Dr Al-Khalidy had also provided a document (which was referenced in the extracted 3.42 of the joint cross-ventilation and solar access report (Exhibit 15)). A copy of this document had, inadvertently, not been provided with Exhibit 15 when it had been provided to the legal representatives of each of the Respondents and it had not been included with the exhibit when it was tendered. This deficiency was subsequently rectified and the document was appended to Exhibit 15, becoming part of it.

279. In Appendix A to this document, Dr Al-Khalidy set out his analysis as to what apartments in the proposed development would have either cross-ventilation or what he considered to be adequate natural ventilation derived from the modelling which had been undertaken under his supervision. That table disclosed that, on this basis, the objective sought to be achieved by the Apartment Design Guide’s guideline for cross-ventilation would, in fact, be achieved by a combination of direct cross-ventilation and adequate natural ventilation in the fashion described by him.

280. Both Ms Francis and Mr Giaprakas indicated that they lacked technical competence to address the way the modelling had been undertaken. In this regard, Mr Giaprakas said, at 3.44 of Exhibit 15:

Mr Peter Giaprakas does not offer any evidence on whether the computational fluid dynamic analysis of Dr Al-Khalidy in relation to airflow would address the cross ventilation criteria.

281. Ms Francis indicated, during the course of the concurrent evidence on this topic, that she also was unable to comment on the modelling methodology.

282. However, it is to be observed that Mr Giaprakas had expressed, in the joint report, his view that, on the assumption that the modelling is to be accepted, he had no concerns about the adequacy of ventilation for sufficient of the apartments in the proposed development that this was no longer an issue for him. In 3.43 of Exhibit 15, he said:

Mr Peter Giaprakas accepts that the Applicant’s submitted Ventilation Study diagrams and Dr Al-Khalidy’s additional analysis adequately demonstrates that the proposal satisfies the ADG requirements with regard natural ventilation.

283. During the course of her oral evidence, I understood Ms Francis to agree with the proposition that, on the assumption that the modelling was accurate, she, too, no longer regarded ventilation as an issue.

284. As a consequence, ventilation is to be regarded as acceptable.

Solar access

Introduction

285. The adequacy of solar access was in contest, not only with respect to the adequacy of solar access to sufficient of the proposed apartments to satisfy the relevant guideline contained in the Apartment Design Guide, but also as to whether the communal open space was compliant with the guideline in that guide for such space.

286. With respect to the first of these issues, Dr Al-Khalidy provided expert evidence. However, he was not involved in consideration of the second of these matters, as the compliance issue for the communal open space only arose as a matter of qualitative analysis raised by Ms Francis in a development design context.

Solar access for the proposed apartments

287. I have, earlier, noted the fact that Ms Francis had questioned, during the earlier phases of these proceedings, the extent to which the proposed development complied with the guideline in the Apartment Design Guide for solar access across the apartments in the proposed development. As a consequence of this, the Applicant was granted leave to commission additional expert evidence on this point, with that expert to confer, jointly, with Ms Francis and Mr Giaprakas on that topic. This led to the engagement by the Applicant of Dr Al-Khalidy as described in the earlier section dealing with ventilation issues.

288. Dr Al-Khalidy produced a short expert report on solar access matters. This report was accompanied by a bundle of View From The Sun Diagrams showing the extent of direct sunlight falling on windows of the proposed apartments. This became Exhibit H. These diagrams depicted the direct solar access at 15-minute intervals from 9.00 am until 3.00 pm as at the winter solstice (21 June). No question was raised concerning the accuracy of the diagrammatic material, although there was a contest as to what conclusions might be drawn from it.

289. The context within which this issue requires consideration is the guideline in the Apartment Design Guide proposing that 70% of apartments in any proposed residential flat building development should have two hours of direct solar access to living areas of the proposed apartments. In this context, it is to be observed that this proposed compliance level is not a development standard and, therefore, is not to be regarded as immutable.

290. On the basis of the view from the sun diagrams in Exhibit H, Dr Al-Khalidy expressed the view that 74% of the proposed apartments would satisfy the guideline in the Apartment Design Guide. He said (Transcript, 5 March 2019 page 17, lines 29 to 50):

WITNESS AL KHALIDY: Can I just clarify one thing? In my report we've got two sections, two tables; one looking at the 923 (presumed to be “9 to 3”) just and to get a new medical (presumed to be “numerical”) compliance with the ADG. Then I put another table in the report, table 2, which is no modifications to the buildings and just like because the solar access before 9 o'clock. Then I looked at the eight to nine east facing units, will have a good quality sun from 8 o'clock. Then those design recommendations, if we implement. We may improve the solar access by 15 minutes only just to achieve any medical compliance but the amenity of the development will have a good solar from 8 o'clock. And in table 2, the solar access is significantly improved when two apartments at when assessed it between 8 and 4pm and this is page  table 2, page 6 of that report. And we will get 46 units with at least two hour solar access. Many units will get a three hour solar access. Then 74% will achieve more than two hour solar access and only five units will have no direct sunlight.

Then the amenity, I looked at it from eight to four because this is where the building is going to be there, the sun is going to be there. The next part I did a numerical compliance. Based on my assessment, I found like 53 will achieve two hour solar access between 9 and 3. Then I did a few modification, it is definitely there is not only solar access aspect to the design, there are many other design aspects. Then I did those modifications to achieving new medical (presumed to be “numerical”) compliance between 9 and 3.

291. It is a little difficult to discern, precisely, what Dr Al-Khalidy was proposing in the above extract from his oral evidence. This is, in part, as a consequence of the difficulty that those transcribing his evidence had in doing so and, also at least in part, as a consequence of what appeared to be Dr Al-Khalidy’s jumbled thought processes. It is, however, necessary to explain what I have drawn from the above passage. There are three propositions inherent in it, on my understanding of what the witness said. These are:

• First, permitting the solar access assessment for this proposed development to be undertaken from a commencing time of 8 am rather than the conventional 9 am would result in greater compliance. I have, below, explained why I rejected this proposition.

• The second and third propositions arise with respect to that which Dr Al‑Khalidy proposed would be the combined benefits of an 8 am assessment start coupled with a number of design changes which he advanced as having solar access benefits. Given that the Applicant declined to embrace these proposed design revisions, it is unnecessary to consider them further.

292. It was also his opinion that, even if I was not prepared to accept the basis upon which he reached that conclusion, nonetheless, having regard to the extent of the solar access provided to apartments proposed for the Leicester Avenue orientation of the building, that solar access would be more than adequate, if the relevant time period for assessment was taken from 8.00 am on the winter solstice rather than the 9.00 am starting time specified in the Apartment Design Guide.

293. The position adopted by Ms Francis, as I understood it, was that it was not appropriate to depart from the assessment period identified in the Apartment Design Guide and that, on the basis of the guideline contained in it, the proposed building design was significantly non-compliant, in both a quantitative and qualitative respect, and that a better building design could have provided greater solar access for the proposed eastern-oriented apartments.

294. It is appropriate, to understand that which follows, to observe that the view from the sun diagram, as at 10.45 am is reproduced below.

295. As can be seen, the blue-shaded areas on this diagram depict the elements of the glazing of the Leicester Avenue-facing apartments that receive direct sunlight at 10.45 am on the winter solstice. It was Ms Francis’s opinion that the extent of sunlight penetration through this glazing would be so minimal as to warrant being disregarded in any solar access assessment of the proposed development. Indeed, Dr Al-Khalidy’s Table of Solar Compliance (Exhibit H, page 6, table 1) observed, with respect to living rooms and private open spaces of apartments facing Leicester Avenue, that the solar access assessment for these apartments was subject to the qualification that:

In the proposed scheme, some internal living areas do not achieve the guideline of 2 hours solar access as the glazing is set back from the façade.

296. It is to be observed that, in qualitative assessment of solar access, the Apartment Design Guide (Exhibit B, tab 3, page 48) separately, provides that:

Access to sunlight for habitable rooms and private open spaces is measured at mid-winter (21 June) as this is when the sun is lowest in the sky, representing the ‘worst case’ scenario for solar access.

297. Dr Al-Khalidy had produced view from the sun diagrams in Exhibit H showing the degree of compliance of the east-facing proposed apartments with this guideline. I did not understand this assessment to be questioned by Ms Francis. It is to be observed that, as earlier noted, the Apartment Design Guide guidelines do not have the status of development standards and strict compliance is not, in any fashion, mandated.

298. However, despite the extent of compliance with the guideline set out immediately above, it remains appropriate to assess the question of whether or not there is solar access to the proposed apartments, on a qualitative consideration, to conclude that the amenity of those apartments was acceptable in this regard.

299. I am satisfied that the cautionary words from Dr Al-Khalidy’s description, applied to solar access for the Leicester Avenue-oriented apartments, is entirely appropriate. The extent of the solar access to these apartments is more restricted than Dr Al-Khalidy has proposed in his analysis which is founded on assuming that the solar access in the diagram reproduced above should be counted toward compliance levels.

A more permissive solar assessment period?

300. I have earlier noted that Dr Al-Khalidy had proposed that the period for assessment of adequate solar access assessment should be extended so as to be commenced from 8.00 am rather than 9.00 am as specified in the Apartment Design Guide. If such an approach was to be taken, it was his evidence that there would be significantly greater solar access achieved for the apartments facing Leicester Avenue. It was Ms Francis's opinion that, if such a more permissive position was to be taken (a position which I did not understand her to support), the percentage of apartments achieving the desired two hours’ solar access should also be increased above the 70% otherwise set by the Apartment Design Guide as the desirable percentage for solar compliance. In his closing submissions, Mr Robertson proposed that I should adopt the approach embodied in Ms Francis's suggestion and reject any extended period for solar access availability assessment.

301. On the other hand, Mr Tomasetti submitted that, adopting such an approach and retaining the Apartment Design Guide percentage as the benchmark against which compliance should be assessed, a relaxation of the time from which solar access assessment might be commenced to 8.00 am rather than 9.00 am was not unreasonable. In advancing this proposition, he relied on a decision by Brown ASC in Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3) [2015] NSWLEC 1282 where, at [46], the Acting Senior Commissioner accepted that the facts and circumstances of that proposed development did warrant an assessment based on an 8.00 am commencement time for assessment of the solar access adequacy for that proposal.

302. There are two observations to be made concerning the circumstances being dealt with by the Acting Senior Commissioner that differentiate the development proposal with which he was dealing and that which I am here considering. First, the site that was the subject of the proposed development being considered by the Acting Senior Commissioner was one with an east‑west long axis (decision at [46]), an orientation which makes provision of solar access more limited as a consequence of the fact that any south‑facing apartments will be unable to achieve solar access. This site has a north-south-oriented long axis and the development aspects of the apartments are either to the east, to Leicester Avenue, or to the west, toward the existing residential flat building at the eastern end of Hilts Road.

303. Second, the percentage of apartments that would be solar-compliant, if the more permissive solar access assessment regime was adopted, was 64% for the proposed development being considered by Brown ASC.

304. In these proceedings, the base from which 9.00 am assessment commencement full compliance is achieved is quite significantly lower (being 53% - Exhibit H, page 6, table 1). The evidence from Dr Al-Khalidy was that the percentage of apartments in this proposed development would just exceed the 70% compliance level proposed by the Apartment Design Guide if such a more permissive assessment approach was to be taken (at Exhibit H, page 6, table 2, compliance between 8am and 4pm of 74%).

Failure to explore more compliant design options

305. Mr Robertson cross-examined Dr Shiels as to whether or not he had requested the architect to consider design alternatives that would have improved the solar access for the apartments and whether he was aware if the architect had independently contemplated potential design changes. The relevant portion of Dr Shiels’ evidence on this was in the following terms (Transcript, 5 March 2019, page 64 lines 1 to 21):

ROBERTSON: I suppose you've never asked the question of the architect, have you, Dr Shiels, whether it was possible to improve solar access but in doing so lose some floor space in the process?

WITNESS SHIELS: I assure you, I've asked the architects many times about solar access.

ROBERTSON: This architect about this building?

WITNESS SHIELS: Yes.

ROBERTSON: You've asked this architect about this building about how he could improve solar access?

WITNESS SHIELS: I've asked the architect about solar access for this building.

ROBERTSON: No. Have you asked the architect how solar access to this building could be improved?

WITNESS SHIELS: I haven't asked that specific question.

306. In addition, it is to be observed that the front setback of the proposed development is set in the design at a little less than three metres (being 2.985 metres at the northern end adjacent to the development on the corner of Leicester Avenue and Parramatta Road). This is one metre less than that which is envisaged in the relevant setback control contained in the Triangle DCP at Map 3 – Minimum Street Setbacks.

306. In the context of the assessment of the adequacy of solar access, it is pertinent to note the comment made by Ms Francis as to why she accepted that a setback to Leicester Avenue consistent with that of the development to the north, on the corner of Parramatta Road, was appropriate. She said (Transcript, 5 March 2019, page 26, lines 14 to 23):

In terms of the setbacks, yes, but that's not the only control that applies. What is different is that there is no floor space ratio control on this site and the floor space and the density controls that apply to this road are predicated in the DCP. The floor space ratio controls were moved from LEP which apply to the building to the north and they're removed from the LEP as far as they relate to this land and land in the triangle and the DCP controls establish the building of ..(not transcribable).. density, the control. So whilst I absolutely accept the setback controls which I've just shown you, that it's the ‑ all the controls now take the density … the density that can be built and that is less than that was previously anticipated.

Conclusion on solar access

308. In circumstances where there has been a relaxation of that which would otherwise be required for a development design on this site (the front setback):

• which relaxation has the effect of improving the ability to provide solar access to apartments; and

• where there is significant non-compliance with that which is suggested by the Apartment Design Guide as the appropriate degree of solar access based on a 9.00 am assessment commencement period and where there is no suggestion that adoption of an 8.00 am commencement time for such assessment would bring radically greater improvement toward compliance (let alone achieving compliance) with a two-hour, good quality solar access period across the proposed development; and

• no suggestion was made to the architect that design alternatives which were, on Dr Shiels’ evidence, potentially available (albeit with the possibility of lost floor space or reduction in apartment numbers) had been suggested to the architect or independently explored by the architect in order to improve solar access; and

• where Dr Al-Khalidy’s own assessment with respect to 18 apartments facing Leicester Avenue were in receipt of “marginal” solar access toward the end of a 9.00 am commencing assessment period (and it being my factual assessment that the solar access to these apartments from 10.45 am (if not from somewhat earlier) is of such limited penetration as not to warrant being regarded as solar access of any functionality whatsoever); and

• the long axis orientation of the site is north-south

that all combine, in my view, to lead to two separate conclusions.

309. First, even though that which is proposed as the appropriate assessment period by the Apartment Design Guide does not have the status of a development standard and is merely for the purposes of guidance as to the desirable approach to be taken, the combination of the above circumstances applying to this site do not warrant adoption of an 8.00 am commencement time for the assessment period to determine whether or not adequate solar access would be provided to apartments in the proposed development.

310. Second, although Mr Robertson did not submit that the inadequacy of the solar access to apartments during the appropriate assessment period warranted refusal of the development on this basis alone, that is not a submission that I am obliged to accept. What I am undertaking is my own assessment based on the extent of the inadequacy of solar access to the proposed apartments when assessed against the guidance given by the Apartment Design Guide. In light of the various factors set out above (particularly the relaxation of the Leicester Avenue setback and the failure to explore alternative design options which would improve solar access), the impact on the amenity of residents of the proposed development by the quite stark non-compliance with the solar access in the Apartment Design Guide is such that too many apartments would have poor internal amenity and that the extent of that paucity warrants, in and of itself, refusal of this proposed development.

Conclusion

311. There are three separate (and each sufficient) reasons why I am not permitted to approve this proposed development.

312. However, against the possibility that I might be wrong in so concluding with respect to each of these impediments, I have also undertaken a merit assessment of the proposed development. As a consequence of doing so, I have concluded that the proposed development would not warrant approval as a matter of merit for the reasons earlier set out.

Orders

313. It therefore follows, for the reasons earlier set out, that the orders of the Court are:

1. The request pursuant to cl 4.6 of the City of Canada Bay Local Environmental Plan 2013 (the local environmental plan) to comply with the development standard applicable to the site pursuant to cl 4.3 Height of Buildings of the local environmental plan is refused;

2. Development Application 2016/0429 for the erection of an eight storey residential flat building with basement car-parking at 38, 40 and 42 Leicester Avenue, Strathfield, is determined by refusal of development consent;

3. The exhibits and documents marked for identification, other than Exhibit C, are returned;

4. No order for costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; and

5. Costs, other than as provided for in (4), are reserved.

**********

Amendments

04 May 2020 - On 4 May 2020, we were notified that a table was missing from [53] of the judgment. That table is now inserted.

Decision last updated: 04 May 2020