Landmark Group Australia Pty Ltd v Sutherland Shire Council - [2016] NSWLEC 1577

Land and Environment Court

New South Wales

Medium Neutral Citation: Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
Hearing dates: 28 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal upheld

Catchwords: MODIFICATION OF CONSENT: calculation of floor space ratio; whether two units should be deleted from development
Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited: GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521
Texts Cited: Apartment Design Guide; Draft Sutherland Shire Development Control Plan 2015
Category: Principal judgment
Parties:
Landmark Group Australia Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:

Ms S Duggan (Applicant)

Ms J Reid (Respondent)

Solicitors:

Anthony Whealy, Mills Oakley (Applicant)
Janelle Amy, Sutherland Shire Council (Respondent)

File Number(s): 247818/2016

Judgment

Sutherland Shire Council granted consent to Development Application DA15/1586 on 15 June 2016. That application had been lodged by Landmark Group Australia Pty Ltd (Landmark) on 14 December 2015. The consent authorised demolition of existing structures and construction of a residential flat development under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH).
Landmark lodged an application to modify the consent on 5 July 2016 pursuant to the provisions of s96(1A) of the Environmental Planning and Assessment Act 1979 (EP&AAct) seeking to delete condition 2A vi). The council had not determined this application within the prescribed period and Landmark is appealing its deemed refusal pursuant to s97AA(b) of the Act.

The site and its context

The site comprises three adjoining allotments and is known as Nos 316-320 Taren Point Road, Caringbah. It is square with a frontage and side boundaries of 45.72m resulting in a site area of 2,086.7sqm. It has a cross fall of approximately 4m falling from the rear south eastern corner to the front north western corner, being RL36.46 to RL32.42.Along the street boundary levels run from approximately RL35.31 (south) to RL32.42 (north). A dwelling house and associated outbuildings stand on each individual allotment, all of which are to be demolished.
The site is located close to the intersection of Taren Point Road with the Kingsway and development on both sides of Taren Point Road in this location currently comprises detached housing with the majority being single storey.
Sutherland Hospital is around 300m from the site with Caringbah Railway Station approximately 650m to the south east. A former school is located to the immediate east. That school site and land on the eastern side of Taren Point Road to the north and south of the site and land further east is located within the Caringbah North Precinct (precinct), a precinct identified by the council for redevelopment to high density residential.

Background and the proposal

The Joint Regional Planning Panel (Sydney East Region) (JRPP) determined the application on 15 June 2016 resolving to approve the application in accordance with the recommendation of the council’s officer report with some minor amendments made to the conditions of consent.
One of the conditions imposed (condition 2.A) is the subject of this appeal and is in the following form:

2.   Design Changes Required
A. Before Construction
The following design changes must be implemented:
i)    The footpath crossing is to be 6m wide at the boundary splaying out on the northern side to 7m at the kerb
ii)    Two street trees to the south of the proposed footpath crossing are to be removed to allow for improved sight lines.
iii)    The vertical clearance into the basement must be increased to 3.5m minimum 3.5m (without increasing the height of the approved ground floor level) to facilitate access for the garbage vehicle accessing the upper basement level.
iv)    The basement driveway must be setback 1m from the northern boundary.
v)    Provide a minimum of 52.5m2 of communal open space area outside the building footprint with 2 additional seats.
vi)    Units 9 and 10 on the ground level are to be deleted from the proposal.
vii)    Side and rear boundary fencing is to be a maximum height of 1.8m when measured from natural ground level at any point.
viii) All storage areas shown in blue on the Storage schedule (DA4.08/B dated 12 May 2016) must be fitted with built in cupboards, shelves or the like.
ix)    An openable skylight is to be provided to unit 5 on the fourth floor.

The application to modify the consent proposes the deletion of condition 2Avi).
The original development application proposed the construction of 48 units (50% affordable housing) over 5 levels with two basement car parking levels accommodating 69 vehicles. The effect of the condition would be to reduce the number of units to 46 and therefore there would be a consequential reduction in the number of affordable housing units.
According to the reports prepared for the Panel’s consideration, the reason to delete these two units is to reduce the floor space ratio of the development. The following paragraph is an extract from that report:

The objectives of the Building Density control are to ensure that the bulk and scale of the building is compatible with the context of the locality and to control the intensity of the use of land. The additional floor area the building gains from excluding the corridors from GFA adds bulk to the overall built form and intensity. The extent of the breech (sic) in floor area is considered to be excessive in this case, resulting in the amenity of particular units being compromised for sake of yield. A strategy to reduce GFA would be to focus on the areas with poor amenity. On this basis, Units 9 and 10 have been identified as the poor performing units relating to solar access, internal amenity and privacy from the development site to the rear significant design modification would be required to bring these units up to an acceptable level. Therefore, the removal of these units is recommended which will also assist in resolving the FSR issue.

The panel made the following comments in relation to floor space calculations:

The Panel notes the applicant’s submission and the recent decision of the Court, but is not convinced that in this case the external walls of the corridor are the external walls of the “building”.

There is a dispute between the parties as to the calculation of floor space within the building and this is discussed later in my judgment.

The planning controls

The site is zoned R4 High Density Residential under the provisions of Sutherland Local Environmental Plan 2015 (LEP). The proposed use is permissible with consent. Clause 2.3(2) required the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The 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.
• To encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.
• To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.
• To minimise the fragmentation of land that would prevent the achievement of high density residential development.

Part 4 of the LEP contains Principal development standards with clauses 4.4 and 4.5 relevant to the assessment of the original development application and issues in dispute between the parties. Those clauses are in the following form:

4.4 Floor space ratio
(1)    The objectives of this clause are as follows:
(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality,
(c) to control development density and intensity of land use, taking into account:
(i)    the environmental constraints and values of the site, and
(ii)    the amenity of adjoining land and the public domain, and
(iii)   the availability of infrastructure to service the site, and
(iv)   the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and
(v)   the desirability of retaining the scenic, visual, and landscape qualities of the area.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map……
4.5 Calculation of floor space ratio and site area
(1) Objectives
The objectives of this clause are as follows:
(a)    to define floor space ratio,
(b)    to set out rules for the calculation of the site area of development for the    purpose of applying permitted floor space ratios, including rules to:
(i)    prevent the inclusion in the site area of an area that has no significant    development being carried out on it, and
(ii)    prevent the inclusion in the site area of an area that has already been    included as part of a site area to maximise floor space area in another    building, and
(iii)    require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio”
The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
(3) Site area
In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be:
(a) if the proposed development is to be carried out on only one lot, the area of that lot, or
(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development…….

The maximum floor space ratio that applies to the site is 1.2:1 under the LEP.
The application was approved under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 SEPPARH. As 50% of the apartments are proposed to be affordable housing the provisions of clause 13 provide for a FSR bonus of 0.5:1 so that the maximum FSR for the development is 1.7:1.
Clause 14(1) contains standards that cannot be used to refuse consent and particularly relevant to the application is subclause (e). Consent cannot be refused if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.
In accordance with the provisions of clause 16, State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) applies to the development as does the associated Apartment Design Guide (ADG).
Clause 16A requires that a consent authority must not consent to the development to which the Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Draft Sutherland Shire Development Control Plan 2015 draft (DCP) applies to the site and has, for the purposes of planning policy, been adopted by the council for the purpose of assessing development applications. Chapters 6:R4 Caringbah North Precinct and 35 – Roads, Vehicular Access, Traffic, Parking and Bicycles are particularly relevant to the application.
The Strategy for the precinct is:

The vision for the precinct is to create an exemplary medium to high rise residential community close to the centre, schools and hospital, which emphasises the Sutherland Shire’s unique ecology with good indigenous landscaping and pleasant spaces between buildings. The combination of high amenity units, indigenous landscaping and access to services will combine to make the precinct a great place to live.
The area will be developed with well designed residential flats alongside other multi-dwelling developments. The precinct will have a different amenity for residents than Caringbah centre being less urban and set in a landscaped context. The aim is to develop flats where all residents have adequate privacy, good light and natural ventilation, attractive outlooks, and good quality landscaped private and shared open space between buildings. To allow for adequate solar access and privacy for future residents, building separation distances which increase with increased building height are required. The building envelope plan for the precinct, and many of the design criteria for residential flat development, are based on the guidelines in the Apartment Design Guide 2015 (ADG) which supports SEPP 65 –Design Quality of Residential Flat Development.

Both the ADG and the DCP call for living rooms and private open spaces for at least 70% of residential units in a development to receive a minimum of 2 hours direct sunlight between 9am and 3pm mid winter whereas SEPPARH has a requirement that consent cannot be refused if at least 70% of units receive a minimum of 3 hours sunlight to living rooms and private open spaces.
According to the council’s assessment report (Folio 90, Exhibit 2) 34 units or 70.83% receive 3 hours sunlight however the applicant’s recent details included in Exhibit B indicate that 31 or 64.58% of the units receive three hours sunlight and 36 or 75% receive the minimum 2 hours required under the ADG and the DCP. Only 4 units or 8.33% receive no sunlight and those are the central south facing units on ground and levels 1-3 numbered 1 on each level.

The issues

The contentions in the case are that, based on the council’s calculations, the development fails to comply with the FSR development standard and that to resolve that non-compliance, units 9 and 10 should be deleted because they are poor performing units in terms of the extent of excavation, lack of solar access, light and ventilation and privacy impacts from potential future development of adjacent land. The council contends that through the deletion of the two units there would be an improvement in the relationship with the natural ground levels of the site and the area available should be adequately landscaped at natural ground level and incorporated into the communal open space area at the rear.

The evidence

The hearing commenced on site with evidence heard from the owner of the adjoining property to the south of the site. Her concerns went to the impact of the approved development on her rooftop solar panels. As the modification application is only related to the deletion of condition 2Avi) the decision of the Court will not alter that impact and it is not a matter for consideration in these proceedings.
Expert evidence was heard from Mr A Darroch for the applicant and Ms D Laidlaw for the council. They agree that there are two fundament contentions.
The first concerns the FSR of the proposed building. It is common ground that a maximum FSR of 1.7:1 applies to the development. The applicant says the proposal complies with this standard and the council (and JRPP) says the proposal does not. The discrepancy arises from the applicant’s exclusion of an area within the overall building envelope which it describes as a ‘Breezeway’ enclosed by walls of apartments to each side but by a balustrade 1 metre high at each end. The applicant says the floor area of the breezeway is enclosed by external walls and by the balustrade, and this area should thus be excluded from the calculation of gross floor area (GFA) relying on the judgment in GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521. The council does not accept the applicant’s interpretation and says that the ‘breezeway’ should be included as GFA and if the units are retained the development would exceed the maximum FSR allowed for the site.
The second contention concerns the amenity of the two apartments which were deleted under Condition 2Avi), and which are sought to be effectively reinstated under the current proceedings. The amenity issue concerns the circumstance that the units concerned have their floor levels below natural ground level surrounding (by variable dimensions). The floor levels of the building, in this regard, were lowered in order to address (or reduce) a non-compliance with the applicable height standard under the LEP.
The experts have relied on the council’s assessment of the floor area that is in dispute which amounts to 143.7m2 or 0.069:1 FSR. They also agree that the area of unit 9 and 10 and the access to those units (which would not be required if the units are deleted comprises approximately 150m2 so if the council’s calculations are correct, the deletion of the units would result in a compliant FSR.
The experts agree:

The proposal is for one single building covered by a single roof form;

The breezeway runs west-east through each of the ground floor and four floors above;

For their full length, the breezeways are enclosed by the walls or doors of the apartments or of various ancillary spaces as well as by openings leading into corridors;

Detailed plans tendered during the hearing provide for the breezeway to be enclosed by a 2m high gate on the ground floor. That gate is to comprise timber slats and there would be an approximately 300mm gap between the top of the gate and the ceiling of the breezeway;

The detail plan provided to the Court, Exhibit D, shows a balustrade 1000mm high at each end of the breezeway on the upper levels and is 14.9m long and 2m wide;

The deletion of apartments 9 and 10 would make no difference to the overall bulk of the approved building;

The outer walls of units 9 and 10 would still need to be constructed;

The outer/upper building envelope would not change with the contested condition in force;

The area adjacent to units 9 and 10 would still need to be excavated to accommodate the basement parking levels;

The figure of 70% of units with solar access meeting the requirements of SEPPARH and the ADG has been assessed by council and is accepted as correct however Ms Laidlaw notes that SEPPARH requires a standard of 3 hours with solar access between 9am and 3pm, whereas the ADG’s benchmark is 2 hours;

The figure of 60% of units with cross ventilation meeting the requirements of SEPPARH and the ADG has been assessed by the council and accepted by the experts as correct contingent on an operable skylight being provided for unit 5 on the fourth floor;

Compliance with the ADG benchmarks for cross ventilation and solar access does not obviate the need to have consideration to the amenity of individual apartments;

The level of compliance achieved for solar access does not take into account the impact of buildings which one must reasonably assume as likely to occur on adjoining sites, and to the rear, having regard to the zoning of land within the precinct.

Floor space ratio

Mr Darroch relies on the decision of O’Neill C. in Danks Street saying similar circumstances apply in this case in regard to the breezeway and because it is open on both ends does not form part of the GFA. If this is correct he says the FSR is compliant with the provisions of SEPPARH. If the council’s assessment of the FSR is correct he notes the agreement of the experts that the deletion of the units making no difference to the bulk of the building which he concludes means the development as proposed must be in keeping with the characteristics of the site and the local area and that the development as proposed is of a bulk and scale compatible with the context of the locality.

His assessment of the FSR of the building is shown below in what is described as Figure 2 – Applicant’s Calculation of GFA – Ground Floor (brown tone)

Ms Laidlaw says the starting point is to determine what the ‘building’ is and then what it’s ‘floors’ constitute, noting it is agreed that the proposal is for one building covered by a roof. She says that if the walls each side of the breezeway were to be considered as external walls, with no internal floor space connection between them, then it would follow there were in fact ‘two’ buildings. The ‘floor’ of this building is the whole of the floor enclosed by the external face of the building, that being the face that surrounds the building footprint and which, notwithstanding articulation, recessed and the like within it, is generally that which presents to the street frontage and to the side and rear boundaries.
A diagram referenced by the council’s assessing officer showing what was considered to be the ‘external wall of the building’ reflects Ms Laidlaw’s interpretation of that issue. The diagram is shown below.

Ms Laidlaw says that although two ends of the breezeway are open above a height of 1000mm (at each floor above ground level) these openings are proportionally insignificant in the context of the total area of the external walls of the building and are properly characterised as an architectural detail of the building, rather than a fundamental element of the building’s composition. She says that for breezeways not to be considered as floor area they would be open to the elements by having one full side or two full sides, enclosed by a standard balustrade and topped only by a roof that is sufficient to cover the breezeway itself. She differentiates the proposal as one where both sides are enclosed by walls exceeding 1400mm in height and only the narrow ends of the breezeway open above 1000mm.
The applicant advances the argument that it is proposing to weatherproof the walls of each breezeway however Ms Laidlaw says that this is not sufficient to render these as ‘external walls’ and, having regard to the extended roof and the views from the sun diagrams, the prospect of any rain entering the breezeway is low and the need for waterproofing of the breezeway side walls is questionable. She says the nomination of the breezeway walls as the ‘external’ walls is therefore primarily a matter of choice, rather than of necessity by the applicant, which proposition leads to obvious absurdities including notably, that there are ‘internal’ walls (namely those of the connecting corridors) that are more exposed to the elements than parts of the breezeway walls that the applicant elects to waterproof. Rather than characterising the areas as breezeways, Ms Laidlaw says they are in fact corridors.
In addition to the disputed breezeway/corridor areas on each floor, Ms Laidlaw has identified other areas which she says are included as GFA. These are shown on Figure 2A below.

These areas relate to the garbage storage areas adjacent to the lifts and the landings to the fire stairwell at each floor as well as the corridor leading from the ‘breezeway’ to that landing (hatched blue) as she says these are horizontal circulation areas, not vertical circulation areas. On her calculations, this adds a further 276.7m2 to the building’s GFA or 1.832:1 additional FSR.
Ms Laidlaw says there is no merit in permitting GFA beyond that which is allowable on this site and says the additional floor space should not be supported because of the site being at a zone interface with low density zone opposite (western side of Taren Point Road); there is already a FSR bonus provided under the provisions of SEPPARH so the building is larger than anticipated under the R4 zone development standards; the development relies on an exceedance of the maximum building height control; the lowering of the ground floor up to 2.2m below natural ground level raises concerns as to the amenity consequences and consistency of the proposal against the R4 zone objective to promote a high standard of….. residential amenity in a high quality landscape setting that is compatible with natural features and the objectives of the FSR standard to ensure that development is in keeping with the characteristics of the site and to control development density and intensity of land use, taking into account the environmental constraints and values of the site.

Solar access

Whilst the experts agreed that the development satisfies the relevant controls for solar access and cross ventilation, they disagree as to whether the amenity of units 9 and 10 is acceptable and as a consequence the units should be deleted.
Mr Darroch says the deletion of the units is a misnomer as, if they were at the top of the building they could be deleted however, being located between the basement and first floor, they still have to be constructed in order to support the building above, but just not fitted out as dwellings. He says that there is an assumption that the site is excavated, the building constructed but then backfilled to change the levels where units 9 and 10 would have been.
He says the area above the basement is approximately 110m2 and the contentions suggest that the courtyards associated with units 9 and 10 are to be excavated up to 2.2m below natural ground level. Whilst he says that this is the worst case in the south-eastern corner, the actual change in level is between 1.7m and 1.9m for unit 10 and 1.2m and 0.8m for unit 9, not uncommon or unique in Sutherland or Sydney generally and in this case, has been accommodated in an appropriate and effective manner by terracing the land and providing generous east facing courtyards.
He says the units are accepted as cross-ventilated and while they do not achieve the two hours of solar access to living rooms, they are not within the 15% of units that achieve no direct sunlight under the ADG provisions with solar access for units 9 and 10 penetrating from just after 7am midwinter until after 10am for unit 9 and 9am for unit 10. Because the development as proposed is well within the tolerances of what is acceptable design practice through achieving in excess of 70% solar access for 2 hours and the apartments with the lesser amenity are in fact the south facing stack of two bedroom apartments (units 1 on ground to level 3). These have been accepted as having appropriate amenity.
Ms Laidlaw has regard to the objectives of the R4 zone and FSR development standard and says a broader view needs to be taken as to the development’s responsiveness to the original topographic character. The use of a uniform floor plate, cut below that original slope in the south east corner and extending above the natural levels in the north west, makes no attempt to recognise the constraint or character of the sit’s topography.
Ms Laidlaw says units 9 and 10 are amongst the poorer performers in terms of amenity benchmarks, neither achieving 2 hours solar access, unit 9’s bedroom window is also impacted by its proximity to the common pathway leading to the communal open space to the rear of the building and benching into the slope of the site does not represent good design practice where a respect of topographical character/constraint is commonly sought.
In her opinion, if units 9 and 10 were deleted then the over-excavation for the courtyards to the units is not required. Although the basement will remain below ground level, the soil depth can be reinstated above, reflecting the pre-existing natural contours of the site, and giving the impression of the building stepping with that slope. This area can be landscaped to improve the landscaped setting of the building and perhaps assist in offsetting the additional impact of bulk that arises from the use of the FSR bonus as well as the breach of the height standard. Since 52.5m2 of communal open space is required by condition, deletion of units 9 and 10 could allow the opportunity for the nominated communal open space area to be moved to the south.
Ms Laidlaw agrees that the outer walls of the units would still need to be constructed, however these would be blank walls forming a subfloor to the building above, and with landscaping able to be brought up to those walls. Potentially, some of that sub-floor space could be used for resident storage or like purposes and whilst she acknowledges this could still amount to a breach of the FSR standard, she says the objectives of the standard and of the zone would be better respected under this option.
The experts were asked to consider whether the amenity of units 9 and 10 could be improved in any way. Other that increasing the amount of excavation, they agreed that this was not possible and both agreed the additional excavation would not lead to better amenity to those units.

Conclusion and findings

The application before the Court seeks to modify the consent by deleting condition 2A vi) thereby allowing the construction of units 9 and 10 as was originally proposed in the development application lodged with the council.
I am not assessing a development application and therefore, the provisions of clause 4.6 of the LEP are not relevant to my determination of the application. The application was lodged pursuant to the provisions of s96(1A) of the EP&AAct. Accordingly, I may modify the consent if I am satisfied that the proposed modification is of minimal environmental impact, and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).
In addition, I must be satisfied that the application has been notified, if required in accordance with the DCP requirements and must consider any submission made. The council advises that notification of the proposal was not required in this case.
Firstly, there is no evidence that the modification, if granted would not have minimal environmental impact. Secondly, having regard to the evidence, and in particular the fact that the building envelope would not alter, I am also satisfied that the development would be substantially the same development.
It is then appropriate to have regard to those matters for assessment detailed in s79C of the EP&AAct.
There are a number of relevant environmental planning instruments with SEPPARH and SEPP65 taking precedent over the LEP provisions.
The FSR provisions in clause 13 of SEPPARH must be considered however, if breached, are not a bar to modification of the consent. The consent can be modified even if the maximum FSR provided by that clause is exceeded. My considerations however go more to the appropriateness of the development as a whole when measured across the suite of controls that apply.
I will however address the issue of calculating FSR and appreciate the applicant’s view that whilst I am not bound by the decision in Danks Street the issue of comity between Commissioners is appropriate.
I do however recognise that individual circumstances in each case can lead to different outcomes. In Danks Street it would appear that different circumstances applied and that in particular the Commissioner had regard to the fact that the corridor would be wet during inclement weather with rain blown along the gap and the walls containing the corridor functioning as external walls.
Gross Floor Area is defined in the Dictionary to the LEP as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:
(a) the area of a mezzanine, and
(b) habitable rooms in a basement or an attic, and
(c) any shop, auditorium, cinema, and the like, in a basement or attic,
but excludes:
(d) any area for common vertical circulation, such as lifts and stairs, and
(e) any basement:
(i) storage, and
(ii) vehicular access, loading areas, garbage and services, and
(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and
(g) car parking to meet any requirements of the consent authority (including access to that car parking), and
(h) any space used for the loading or unloading of goods (including access to it), and
(i) terraces and balconies with outer walls less than 1.4 metres high, and
(j) voids above a floor at the level of a storey or storey above.

I do not consider the same circumstances apply in this case. I agree with the evidence of Ms Laidlaw that the calculation of GFA required the floor area to be measured from the internal face of external walls and that in this case the external walls accord to the red line detailed in the diagram included at [34]. Whether the area at ground level between the 2m high gates at either end of the building is categorised as a breezeway or corridor is irrelevant to my consideration. The fact of the matter in this case is that the area between these gates is within the internal face of the external walls of the building.
Similarly, I find the same applies to the breezeway/corridors on the upper levels of the building. These are also within the internal face of the external walls of the building. Those external walls are no different from the windows, doors and other architectural features that form the perimeter of the building. The fact that two 2m wide areas around the perimeter of the building are not wholly enclosed does not alter the location of the building’s external walls in this case. Measured 1.4m above the floor level, the areas of the breezeway/corridor are included as GFA.
Therefore, consistent with the findings in Dank Street the sum of the floor area of each floor of a building measured from the internal face of external walls requires the floor area that is included in the GFA calculation to be internal floor space. In this case, I find the space to function as and to be internal floor space.
Accordingly, I accept the council’s position that the FSR of the building exceeds the standards set under clause 13 of SEPPARH.
I also accept Ms Laidlaw’s proposition that the garbage areas not within the basement are included as GFA but reject the suggestion that the landings in the fire stairs are not part of the area for common vertical circulation. That is because a person using the stairs must travel along the landings to get from one level to the next. The landings are an integral and essential element of the vertical circulation area.
It is then appropriate to consider whether the bulk and scale of the development is appropriate in the circumstances of the case and in this regard I turn to the controls in SEPPARH, SEPP65 and the ADG and DCP. These were considered by the council officer in preparing the report to the JRPP and the overall building envelope was found to be acceptable, variation to the building height development standard allowed and the development found to satisfy relevant objectives and controls apart from the numerical non-compliance with the FSR development standards.
In terms of the bulk and scale of the building, I accept the expert evidence that this would not change if units 9 and 10 were deleted. The council had assessed the issue of bulk, scale and setbacks and found the development in terms of the building envelope was acceptable and the proposed development is of the desired future character for the North Caringbah Precinct area. Once the adjoining sites are redevelopment in the future the development will fit comfortably within the streetscape. This conclusion must go to the mandatory consideration required under clause 16A of SEPPARH that requires consent cannot be granted unless the design of the development is compatible with the character of the local area. This is fundamental to my findings that the bulk and scale of the development without the deletion of units 9 and 10 is appropriate.
Finally, the issue of the amenity of units 9 and 10 must be considered. This factor should not be considered in isolation to the performance of the development as a whole, particularly due to my findings on the acceptability of the FSR of the proposal. the units are not the worst performing in the development in terms of solar access and cross ventilation.
Even if numerically, they were included as receiving no solar access the development would result in 6 of the 48 units receiving no sunlight, a figure of 12.5% which is less than the maximum provided under the ADG. Each unit does receive some morning sun at mid winter, be it for a short period within the living areas however for longer periods to the courtyards of each unit, consistent with the 2 hour requirement.
The excavation of the site is greatest in the south eastern corner of the site however reduces considerably to the north. I do not consider that the impact is so great that the units should not be built. The amenity of the units is acceptable.
There are no conditions that would require the reinstatement of the south eastern corner of the site to the levels currently existing and to the contrary, landscape conditions require the formation to the terraces to facilitate the retention of trees on the adjacent property to the east. For that reason I am not satisfied that a different landscaped outcome would result through the deletion of units 9 and 10.
There is no suggestion that the internal layout of the units is unsatisfactory other than the proximity of a bedroom to the rear path leading to the common open space area. The location of that bedroom is no different from the bedroom of unit G03 which is directly adjacent to the entry path and main site entry.
Having concluded that the FSR of the development is appropriate and the amenity of the units acceptable there are no reasons why the consent should not be modified.
There is also no evidence that there will be any adverse impacts including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. In fact, the development would provide 25 affordable housing units in close proximity to public transport and employment opportunities, in particular Sutherland Hospital. For those reasons, I consider the site is suitable for the proposed development and it is in the public interest.
Accordingly, it is appropriate to allow the modification of the consent as sought.
The Orders of the Court are:

The appeal is upheld.

Modification Application lodged with Sutherland Shire Council on 14 December 2015 to modify Development Consent No DA15/1586 for demolition of existing structures and construction of a residential flat development under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) is approved by modifying the conditions of consent in accordance with Annexure A.

As a consequence of order 2, Development Consent No DA N0422/10 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

The exhibits, other than the plans at Tab1, Exhibits B, D and 1, are returned.

……………

Sue Morris

Commissioner

247818.16 - Annexure A - Modifications to Conditions of Consent (29.6 KB, pdf)

247818.16 - Annexure B - Consolidated Conditions of Consent (138 KB, pdf)

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Decision last updated: 02 December 2016

Medium Neutral Citation:	Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
Hearing dates:	28 November 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	MODIFICATION OF CONSENT: calculation of floor space ratio; whether two units should be deleted from development
Legislation Cited:	Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521
Texts Cited:	Apartment Design Guide; Draft Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Landmark Group Australia Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Ms S Duggan (Applicant) Ms J Reid (Respondent) Solicitors: Anthony Whealy, Mills Oakley (Applicant) Janelle Amy, Sutherland Shire Council (Respondent)
File Number(s):	247818/2016