Jin Huang v Canterbury-Bankstown Council

[2017] NSWLEC 1653

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Jin Huang v Canterbury-Bankstown Council [2017] NSWLEC 1653
Hearing dates:	25 and 26 September, 2017
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed 2. Development Application DA295/2016 for a mixed use development at 1-3 Weyland Street, Punchbowl is refused. 3. The exhibits, except Exhibits A, B and 3, are returned.
Catchwords:	DEVELOPMENT APPLICATION: mixed use development; calculation of height; whether height exceedence; whether clause 4.6 variation required; setbacks and building separation; design quality of apartments; ceiling heights; solar access; natural ventilation; communal open space; streetscape character; area in transition; adequacy of onsite stormwater detention; adequacy of basement car park design having regard to AS2890.1; precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Canterbury Local Environmental Plan 2012 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Texts Cited:	Canterbury Development Control Plan 2012 Apartment Design Guide 2015 Australian Standard AS2890.1:2004
Category:	Principal judgment
Parties:	Jin Huang (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Ms L-M Saw, barrister (Applicant) Ms S Puckeridge (Respondent)   Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/19925
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Canterbury-Bankstown Council (the Council) of a development application for a mixed use development at 1-3 Weyland Street, Punchbowl (the site).

2. Development Application DA295/2016 (the application) was lodged with the Council in July 2016 and sought approval for a 6 storey mixed use development comprising retail tenancies at ground level with 45 apartments at the upper levels. Two levels of basement parking with a third level mezzanine were proposed containing 63 car parking spaces, bicycle parking and storage. Drainage and landscaping works were also proposed.

3. The application was notified and one objection was received in response raising concerns in terms of building height, overlooking and privacy, overshadowing, traffic, and construction noise.

4. On September 30, 2016 the application was refused with 30 grounds for refusal ranging from excess height to inadequate parking and access arrangements. Many of the grounds referenced poor design outcomes in terms of the quality of the proposed apartments and open space areas as well as inadequate application documentation.

5. The appeal was the subject of conciliation under s34 of the Land and Environment Court Act 1979. The conciliation was terminated as agreement could not be reached on the adequacy of the application.

6. In June 2017, the Applicant was given leave by the Court to amend the application and rely on amended plans and documentation which largely arose from the conciliation process. The amended application reduced the number of apartments from 45 to 42 and the maximum height of the building, including deletion of the lift overrun. The mezzanine floor in the basement was also deleted.

7. Notwithstanding the revisions to the plans, the Council advised that 22 contentions remained and that, in essence, the proposal remained an overdevelopment of the site resulting in compromised amenity for future occupants, poor design outcomes, and a development that was out of character with the area albeit the Council acknowledged that the area was in transition.

8. At the commencement of the hearing, the Court viewed the site and development in the vicinity. No evidence was given by the objector. It was noted that all sites on the same side of Weyland Street as the application and at the rear, other than 5-7 Weyland Street and an adjoining industrial building on the corner of Bramhall Street, had new development underway or were the subject of development applications, with the area transitioning from low density residential or industrial development to high density predominantly residential development.

Planning Framework

9. The site is situated on the northern side of Weyland Street between Bramhall Avenue and Moxon Road and is adjoined at the rear by properties fronting Canterbury Road.

10. The site is located in the Business Development B5 zone under the provisions of the Canterbury Local Environmental Plan 2012 (the LEP) as is adjoining land on the northern side of Weyland Street and to the rear of the site fronting Canterbury Road. Land on the opposite (southern) side of Weyland Street is zoned Medium Density Residential R3.

11. The objectives of the B5 zone are specified in the LEP as follows:

To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

To support urban renewal that encourages an increased use of public transport, walking and cycling.

To encourage employment opportunities on Canterbury Road and in accessible locations.

12. The site is identified as a ‘key site’ on the Key Sites Map in the LEP to which Schedule 1 applies as follows:

1 Use of certain land along Canterbury Road in Zone B5 Business Development

1. This clause applies to the land identified as “A” on the Key Sites Map.

2. Development for the purpose of residential accommodation is permitted with development consent, but only as part of a mixed use development.

13. The site has a permissible maximum height of 18m under the LEP but no floor space ratio (FSR) control applies. The LEP contains the following definitions relevant to the determination of height:

Building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

Ground level (existing) means the existing level of a site at any point.

14. The objectives of the height control are set out at clause 4.3 of the LEP, being

(a) to establish and maintain the desirable attributes and character of an area,

(b) to minimise overshadowing and ensure there is a desired level of solar access and public open space,

(c) to support building design that contributes positively to the streetscape and visual amenity of an area,

(d) to reinforce important road frontages in specific localities.

15. Any exceedence to the height limit cannot be consented to unless the provisions of clause 4.6 of the LEP have been satisfied. Specifically relevant to this appeal is cl 4.6(3) as follows:

(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.

16. The development is also subject to the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) and, by reference in SEPP65, the Apartment Design Guide (ADG). The development is also subject to the provisions of the Canterbury Development Control Plan 2012 (the DCP).

Issues in Contention

17. At the commencement of the hearing, the Council advised the Court that the vast majority of grounds for refusal remained in contention. Furthermore, the proposed height of the development exceeded the maximum height permitted under the LEP of 18m and a clause 4.6 request had not been submitted to justify this height as required by cl 4.6(3). Therefore the Court had no power to consent to the application. In addition, no SEPP65 design statement had been submitted which was a further basis to withhold consent.

18. The Council contended that this was not a difficult site on which to design an ‘approvable’ compliant development but the applicant was seeking a significantly higher dwelling yield than could be accommodated or which was proposed on adjoining sites. Examples were given of 13-15 and 17-19 Weyland Street which were similarly sized and configured sites (also comprising two consolidated lots) and which had 29 and 25 units proposed respectively, compared to the 42 units proposed in this application.

19. It was claimed by the Council that this ‘overdevelopment’ lead to compromised design outcomes, in terms of the basement car park and stormwater and waste disposal, and lead to a number of non-compliances with the ADG resulting in a poor streetscape outcomes and poor amenity for future occupants, citing it as a poor precedent for sites not yet redeveloped in the area.

20. Specific concerns included the scale and bulk of the development, setbacks and building separation, the articulation to the north and south elevations and the adequacy of the landscaping. In terms of the amenity for future residents, concerns were expressed by the Council in terms of cross ventilation, solar access, the adequacy of the communal open space, room and balcony sizes and storage areas, the ceiling heights, and the legibility of circulation spaces.

21. In response to the Council’s concerns, the applicant argued that the amended development was consistent with other development proposed or approved on the same side of the street. It was not relevant to compare the number of dwellings with those proposed on adjacent sites as those developments contained larger units, and therefore less units, than were proposed by this application.

22. The applicant also argued that the proposed height was consistent with the approved height on adjoining sites and that the development was capable of meeting all SEPP65 design principles with the Council being overly onerous in detailed application of relevant controls and objectives.

23. Expert evidence on planning issues was provided by Mr Boers for the applicant and Mr McDonald for the Council. Expert evidence on engineering issues was provided by Mr Hawatt and Mr Chen for the applicant and Mr Albaba for the Council.

Height compliance

24. Mr Boers provided evidence to the Court as to how he had determined height compliance. Essentially, he argued that, as the site was relatively level (and notwithstanding the definition of ‘height’ and of ‘ground level (existing)’ in the LEP), he had adopted RL7 as the existing ground level across the site (rather than the existing ground level at any point) from which to measure height of all aspects of the development.

25. Mr Boers advised that RL7 had been adopted because he had calculated (based on a methodology the subject of a convoluted explanation) that the mid point of levels abled to be measured across the site was RL6.905 which he rounded up to RL7. The development as amended was shown at a maximum height of RL25 which, deducting 7 metres, was at but did not exceed the maximum permissible height of 18m. This also assumed that there was no need for a lift overrun as none was now proposed by the applicant. Therefore Mr Boers had concluded that no cl 4.6 variation was required.

26. Part of Mr Boers’ argument was that it was ‘general practice’ when calculating building height to determine a line ‘which generally, rather than literally, follows the slope of the land’. He queried what ‘at any point’ meant in terms of the LEP definition and believed a median point should more appropriately apply.

27. Mr McDonald initially argued that the height was exceeded given the LEP definitions on how to calculate height and based on the levels of the site on which the building was proposed being as low as RL6.59 for a building up to RL25. He also queried why a lift overrun would not be required.

28. However, in oral evidence, Mr McDonald conceded that his calculations of height may not have been accurate.

29. Resolution in terms of height compliance was not assisted by the fact that details were not provided of the roof design of the development. To its upper ceiling, Mr Boers advised that the height of the building was 17.2m above RL7 which he claimed allowed 800mm ‘spare’ for a roof. With a roof pitched at 2 degrees, and using particular roof sheeting, Mr Boers argued that a roof was capable of being constructed within this ‘surplus height’ resulting in compliance with the 18m height control. Furthermore, details of new generation lifts systems had been provided which indicated such a system could fit within this building height without requiring an overrun.

30. Mr McDonald was sceptical that the height would be uniform at RL25 and noted that the site was not absolutely flat at RL7 with the site survey indicating spot levels that were lower than this. He argued that nowhere on the site was there an existing level shown at RL7 rather it varied between RL6.74 and RL6.99 at the street boundary with levels in the north west portion as Iow as RL6.59 at which point the northern part of the building would be at a height of 18.11m to the top level of the ceiling with a roof then required over. He believed a roof of only 200 to 300mm in depth would be unrealistic to accommodate ceilings, battens, insulation and roof sheeting and he also queried the ability to limit the roof pitch to 2 degrees.

31. Mr McDonald was also not persuaded that the new lift system proposed would not require some form of overrun nor that the applicant had demonstrated that it was feasible to achieve 2.7m ceiling heights with 2.9m floor to floor heights proposed between residential floors. He also noted that the commercial space only achieved a ceiling height of 3.3m by setting the floor down from the street entry level thus making the spaces non-compliant in terms of disabled access.

32. Ultimately there was much debate about whether or not the building height was or could be made compliant with the LEP standard and, if so, what would be required to achieve this. Mr Boers conceded that, if the LEP definition was as interpreted by Mr McDonald, then a building up to RL25 would exceed the 18m height level in some locations. However, he believed the building design could be made compliant.

33. The planning experts were required by me to reassess the maximum height at all points under likely scenarios for roof design, ceiling heights and lift provision. Having undertaken this exercise, there was still no definitive conclusion on likely compliance with a maximum height of 18m.

34. Mr McDonald thought that, at best, the building might comply but there would be ‘little margin for error’ in terms of any of the required design criteria and it still did not resolve the issue of disabled access to the commercial tenancies.

35. Mr Boers maintained that the building could be built within an overall 18m height limit and believed access to the retail tenancies was a detailed design issue that could be conditioned and resolved at fit out stage depending on the proposed use of these tenancies. Mr McDonald considered that the provision of disabled access should be resolved as part of the application.

Building design considerations

36. In addition to a concern with height compliance, the Council raised numerous concerns with the location and design of the building.

37. Firstly, there was a concern with regard to building separation being non-compliant with the requirements of the ADG. In particular, there would be less than the required minimum 12m separation provided between habitable rooms on the western and eastern sides of the building up to 4 storeys and less that the minimum 18m required at the fifth and sixth storeys. In addition, the 7m separation between balconies on the northern boundary at the fifth and sixth storey was not considered an equitable sharing of the 18m separation required between habitable rooms and balconies across common boundaries.

38. The Council considered that the failure of the development to comply with minimum separation distances demonstrated an inappropriate design response for the site resulting in reduced internal residential amenity for future occupants of the development.

39. The design of the building is essentially ‘H’ shaped with a number of apartments looking internally into what Mr McDonald considered to be ‘light wells’ although Mr Boers disagreed they should be defined as such.

40. In terms of amenity for its future occupants, the main difference between the experts in essence was that Mr Boers argued that the outlook for some apartments to blank walls, having no windows in a north facing wall for a small number of apartments, and the outlook from living rooms into the ‘light wells’ for 11 apartments to provide the required solar access, was acceptable with internal amenity ‘not significantly compromised’. Mr McDonald disagreed.

41. Furthermore, in Mr Boers’ opinion, the impact of the development upon future adjacent developments in terms of outlook, privacy and solar access should only be considered if adjoining sites had current development proposals or approved developments. During the assessment of the subject application, there were no such proposals for any of the sites adjoining the appeal site. In his view, speculation of development that may occur could not be considered in terms of the impacts arising from the subject development except that any new development adjacent would be subject to an increased 4m side setback under recent changes to the DCP.

42. The Council disagreed, arguing that the level of amenity for future occupants of the development would be unacceptable and the applicant did have to have regard to the development potential of adjoining sites which the parties agreed were all likely to be redeveloped in the foreseeable future. Mr McDonald argued that the failure in the design to consider the likely form of development to a height of 18m on adjacent sites would overly constrain the development potential of those sites.

43. By example, the Council referenced ADG objective 3F-1 in dealing with visual privacy which requires that ‘adequate building separation distances are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy’.

44. In terms of amenity for future residents of the subject development, Mr McDonald provided examples of units which had bedrooms facing blank walls 2m away and rooms which circumvented the 12m rule for separation between habitable rooms by having no windows in northern walls, resulting in poor amenity outcomes in terms of lack of outlook and solar access, particularly when adjoining sites were developed.

45. The Council also raised a concern that a number of the master bedrooms did not meet the required ADG minimum floor area and/or dimensions and that there was inadequate storage provided for a number of units.

46. However, Mr Boers claimed that deferred commencement conditions of consent could be imposed requiring the non-compliant bedrooms to be reconfigured to meet the minimum required size without impacting other apartments or modifying the building envelope. Demonstration plans of how this may occur were provided in the joint expert report. Mr Boers also considered the lack of adequate storage for some apartments could also be addressed by a condition of consent.

47. However, Mr McDonald maintained that the proposal was overdevelopment resulting in poor quality design. In summary, he criticised, and took the Court to examples of: the placement and therefore limited useability of communal spaces, privacy conflicts between private and communal spaces, inadequate solar access to communal open spaces and most private open spaces, living areas and bedrooms with poor or no outlook, living areas and balconies of insufficient width and/or useability, convoluted and wasteful circulation spaces, and poorly located kitchens with no windows or outlook, access to natural light or adequate bench space.

36. Mr McDonald was particularly critical of the usability of the areas of proposed communal open spaces in the ‘light wells’ on the east and west sides of the building claiming they were partly undercroft and would receive little if any winter sun, therefore not being suitable for any significant planting.

37. Mr Boers argued that the communal open space was distributed in a range of locations and designed to provide variety. Furthermore, there was no requirement for kitchens to have windows and many upper level apartments would benefit from distant views. In his opinion, some degree of compromise was to be expected in order to achieve all the necessary design criteria and he concluded that the internal amenity of apartments ‘would be satisfactory’.

38. Mr Boers also argued that the high residential density proposed represented a more efficient use of space, physical infrastructure and social services and would improve housing affordability by increasing dwelling supply.

39. Furthermore, Mr Boers claimed that there were no identified significant impacts of the proposal associated with its density in terms of traffic generation or impacts upon infrastructure. Therefore the site was capable of supporting the density proposed.

40. In terms of solar access, the experts disagreed on whether or not the development was compliant.

41. Mr Boers advised that the applicant’s solar access models were based on the existing solar access and overshadowing situation and not on any potential overshadowing that may be caused by future adjacent development. He also accepted that they had not had regard to the impact from balcony balustrades. Based on his assessment, the minimum 70% of apartments received at least 2 hours of solar access in mid winter.

42. Mr McDonald argued that the design did not take into account the deeply recessed living areas of some apartments in terms of how much light could penetrate (which Mr Boers agreed he had not considered), the balcony balustrades, and the overshadowing effect of the six storey north eastern part of the building on eastern and north facing apartments in the south eastern part of the building, nor the effect of a 5-6 storey building on the adjacent site at 5-7 Weyland Street and from likely development on the site to the east.

43. If all of these factors were taken into consideration, Mr McDonald had calculated that 21% of apartments would receive no solar access to their living rooms and a further 40% of apartments were marginal in terms of receiving at least two hours of adequate solar access in midwinter. The Council submitted that overshadowing of apartments within a development by the poor design of that development was unacceptable when it was unnecessary and avoidable.

44. Similarly, in terms of natural cross ventilation there was disagreement between the experts on compliance. Mr Boers had calculated that 69% of the apartments would have natural cross ventilation thus meeting the required minimum of 60%. However, Mr McDonald calculated only 52.4% of apartments were capable of natural cross ventilation. In essence there was a disagreement about whether eight apartments would achieve adequate ventilation.

45. Finally, the planning experts disagreed as to whether the form of development proposed was in accordance with the desired future character of the locality or of the streetscape.

46. Whilst discounting the likely redevelopment of adjacent sites for multi storey higher density residential apartments in determining solar access and amenity impacts on future residents of the subject development, Mr Boers referenced recent approvals at 9-11 Weyland Street for up to 6 storeys and of an application at 17-19 Weyland Street for up to 5 storeys with zero side setbacks as indicators of the desired and likely future character of the street. He considered that the proposed development of 1-3 Weyland Street would be consistent with these applications and therefore with the future streetscape and the likely future form of adjacent development in Weyland Street.

47. Mr McDonald, in contrast, believed the design to be arbitrary, heavy and lacking finesse. He considered the colours and materials chosen were poor and he noted that the development at 9-11 Weyland Street had not in fact been approved but was also the subject to appeal proceedings.

48. The Council also noted that the developments proposed at 13-15 and 17-19 Weyland Street had recessed upper levels to reduce their bulk and scale when viewed from the street, a feature not proposed in this application.

49. In terms of precedence, Mr Boers did not accept that the proposed development would set an adverse precedent on the basis that every development application is required to be assessed individually.

50. By contrast, Mr McDonald had formed the opinion that the proposed development would set a poor precedent due to the attempt to occupy the site with a building of excessive footprint and floor layouts result in extremely poor amenity outcomes for future occupants. Further, that the application represented the type of building that SEPP65 and the ADG sought to prevent.

Stormwater disposal and design of basement

63. The Council was concerned with the proposed location of the onsite stormwater detention tank which was within the garbage room in the basement. The concern was that the access to the tank was constrained and it would not be safe for the person undertaking maintenance as it required side access via a ladder and then lowering into the tank. If the person fell in, it may be difficult for them to get out.

64. Mr Hawatt advised that, whilst side access to the detention tank was not desirable, there was no alternative to gain access for cleaning and nowhere else on the site available for the tank to be located. He noted that all such tanks were accessed from the top and he considered it would be safe, albeit he advised the Court that in his 30 years of experience he had not seen a tank operating in such a manner.

65. Mr Albaba remained concerned at the safety aspects associated with the location of the tank which was in a confined location and would require access every 3 months for maintenance. Neither expert was aware of tanks in such a location being operational although Mr Hawatt advised he had designed tanks with side access albeit such a design was unusual.

66. The Council was also concerned that the location of the overflow pipe and pit were not shown. In this regard, Mr Albaba had two concerns: where the pipe could feasibly go; and its impact on the gradient of the basement ramp.

67. Mr Hawatt provided a suggested location for the grate and pit at the front of the driveway which the overflow pipe would connect to with overflow discharging to the footpath. Mr Albada accepted the suggested location but remained concerned that this location would impact the driveway grade.

68. Mr Hawatt could not confirm whether there would be an impact but believed this was a matter of detailed design which could be resolved at Construction Certificate (CC) stage.

69. Mr Chen, the applicant’s traffic engineer, advised that he could not comment on where the pipe should go however, he believed he could design a ramp to accommodate it which had no safety impacts and was of sufficient gradient so that cars would not scrape. He indicated it could be a condition of consent for the ramp to meet AS2890.1 with the design provided at CC stage.

70. Mr Albaba advised that the issue was not about cars scraping but whether or not a longer ramp would be required. Mr Chen advised a longer ramp may not be needed (depending on the design) but the issue would be resolved by a condition requiring the ramp to be designed ‘properly’.

71. The Council also raised other concerns with the design of the basement. Firstly, the external walls of the basement were shown on the plans to be only 200mm thick but were required to be a minimum 450mm thick to allow for shoring as advised by the geotechnical report submitted with the application.

72. Mr Hawatt agreed that the external walls should be 450mm thick to accommodate shoring and, whilst there were options available to reduce this thickness, any alternative option had cost implications and may not be ideal. He agreed that increasing the wall thickness to 450mm could have implications for the design of the car park in terms of impacting on adjacent car parking spaces and for circulation but believed these were detailed design issues that could also be resolved at CC stage.

73. A second issue raised by the Council concerned the adequacy of the basement design having regard to the design provisions of Australian Standard AS2890.1:2004 (AS2890.1). Specifically, there were concerns with the adequacy of the circulation areas to enable two vehicles to pass, the accessibility and useability of the waiting bays in the circulation areas, the head clearance for vehicles located under the ramp to upper basement level, and the excess gradient for the ramp at 6.25%.

74. It was agreed that other concerns raised by the Council, such as the location of the letter boxes which prohibited adequate sight distances for vehicles exiting the car park, could be the subject of conditions requiring design changes.

75. Mr Chen argued that there was always potential for conflict in a car park but the real issue was about safety. In this regard, the swept paths provided showed adequate manoeuvrability, convex safety mirrors would be provided, and a traffic light system was proposed to control movements as the ramp was designed for one way movement only. Furthermore, there would not be a high turnover of cars using the car park, it would be a low speed environment, and the cross sections provided by the architect showed the required height clearance of 2.2m was achieved.

76. Mr Chen agreed that the 6.25% gradient of the ramp should be reduced to not exceed 5% but believed this could be accommodated with a design change required by a consent condition including further lowering of the basement if required. In addition, wheel stops could be provided. A Traffic Management Plan could also be required as a condition of consent.

77. In summary, there was disagreement between the experts on the applicability of various provisions of AS2890.1 including whether the standard required the provision of two way ramps in this circumstance and whether the ramp design was satisfactory or the waiting bay could be used safely. Mr Chen did agree that, as a minimum, lights and mirrors would be required at the bottom of the ramp but argued that tenants would become familiar with how the car park operated and would co-operate with each other to avoid crashes.

78. Mr Albaba argued this would not be the case for users of the commercial spaces. He argued that AS2890.1 contained stringent design controls for basement car parks, including for ramps and circulation aisles, and he was not satisfied that these controls had been or could be met as the documentation provided failed to demonstrate this. He also did not believe the issues should be resolved by conditions of consent as he was not convinced they could be.

Findings

79. In refusing this application, the Council raised 30 substantive grounds for refusal, many of which included secondary reasons why the application should not be approved. Despite conciliation and amendments to the plans, the vast majority of these issues remained unresolved with 22 in contention.

80. With little, if any, exception I agree with the Council that the grounds for refusal remain valid grounds not to grant consent. The application is refused accordingly.

81. In coming to this conclusion, I firstly considered the dispute as to whether the development complied with the maximum height required by the LEP. The simple fact is that there was no evidence to confirm this. Even if it were the case that the development could be made to comply with the maximum permissible height, there were no designs provided to demonstrate this or evidence which would give the Court any comfort that compliance could be achieved without further compromising aspects of the development. At best, the applicant submitted that it was ‘possible’ for the development to meet the height limit.

82. However, it was of concern that the applicant’s expert planner based his compliance argument on a misunderstanding of how height should be and was required to be calculated. Furthermore, even setting aside whether a lift overrun would or would not add to the height, it is not appropriate that details of the proposed roof of the development, or of the lift, are not included in the application. These are not matters, as the applicant contended, that can readily be left to a deferred commencement condition or be resolved at Construction Certificate, or CC, stage.

83. In fact, it was the applicant’s position that many of the design non-compliances with this development could be resolved at CC stage when it became evident that they were not satisfactorily resolved as part of the application.

84. I do not accept that it is appropriate to approve the development on this basis. It would mean an approval based on inadequate information or resolution of a number of important issues: the structural adequacy and design of the basement, the safety and usability of the car park, the acceptability of the ramp grade, the safety and adequacy of the onsite stormwater detention tank, and the ability to comply with disabled access requirements.

85. Added to this would be unresolved designs to ensure adequate amenity for future occupants of a number of the proposed apartments in terms of even the basic minimum requirements such as ventilation, outlook, privacy, solar access, useability of habitable rooms and/or open spaces, or adequate storage facilities.

86. In summary, I agree with the Council that the proposal in this application is manifestly an overdevelopment of the site. There are too many apartments resulting in poorly designed dwellings, with compromised amenity ranging from poor outlook to inadequate solar access and poorly located areas of private and communal open space.

87. I also disagree with Mr Boers that the application does not have to have regard to the impacts of the redevelopment on or the development potential of adjacent sites, particularly given such redevelopment is agreed to likely proceed in the near future at a similar height as the proposed development. It is a fundamental consideration to have regard to the impact such development would have for the future amenity of occupants of this development and of future adjacent developments.

88. Overall, I find little if anything to commend this application save perhaps for the fact that it may result in affordable apartments given the quality of their design. However, this would be a poor basis to grant approval.

89. If height had been demonstrated by the evidence to be non-compliant, the appeal could readily have been dismissed given the absence of a clause 4.6 written justification for this exceedence. However, even if the height was compliant, the development would not, in my view, be capable of approval. It does not meet any of the specified relevant LEP objectives for achieving the height sought in terms of establishing and maintaining the desirable attributes and character of the area, minimising overshadowing and ensuring there is a desired level of solar access, or supporting a design because it contributes positively to the streetscape and visual amenity of the area.

90. On the contrary, the appeal ought to be dismissed for the many grounds of design inadequacy raised by the Council and supported by the evidence.

91. In addition, the development does not meet one of the core objectives of the zone which is to provide residential uses in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. The overwhelming evidence was to the contrary.

92. This is an area which it was agreed is undergoing change resulting in new multi storey residential and mixed use development. It is important that the first of such developments demonstrate at least general compliance with the principles and design criteria of the LEP, SEPP65 and the ADG. Ideally such developments should achieve a higher quality of design outcomes than is required by the controls in these instruments.

93. I therefore do not accept, as the applicant’s expert suggests I should, that compromises on design criteria are inevitable in such developments and are therefore justifiable, or that achieving ‘satisfactory’ amenity for future residents is sufficient. No basis for such conclusions exist.

94. The Council submitted that not one of the 42 apartments proposed complied fully with the ADG requirements. Whilst this was not the subject of specific evidence, the claim was not refuted by the applicant and it is a comment arising from the collective issues associated with the application and which, I agree, is symptomatic of the over development sought.

95. In summary, I agree with Council’s starting position that there is nothing particularly constraining, challenging or unique about this site which warrants the extent of non-compliance sought by this application and the inadequacies of the proposed design.

96. Finally, I do not accept that the development can or ought to be ‘fixed’ by a multitude of deferred commencement or operational conditions of consent which might render it acceptable and capable of meeting even the minimal design standards set for such development. There is no basis for accepting anything less than substantive compliance in the first instance.

Orders

97. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA295/2016 for a mixed use development at 1-3 Weyland Street, Punchbowl is refused.

3. The exhibits, except Exhibits A, B and 3, are returned.

_________________________

Jenny Smithson

Commissioner of the Court

**********

Amendments

22 November 2017 - Clerical error.

Decision last updated: 22 November 2017