Lincon Developments Pty Ltd v Council of the City of Sydney

[2013] NSWLEC 1139

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lincon Developments Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1139

Hearing dates:

22 July 2013

Decision date:

30 July 2013

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)Leave to rely on the amended plans in Exhibit A for Stage 1 of the development application is granted.

(2)The appeal is upheld.

(3)Development consent is granted to DA No D/2011/1760 dated 2 November 2011 for a Stage 1 Integrated Development for commercial and residential development at 106 - 116 Epsom Road, Zetland subject to the conditions in Annexure A.

(4)The exhibits be returned except for 3, 4, 5, 6, A and B.

Catchwords:

Development application - Integrated development for commercial and residential development - Weight to planning controls - Voluntary Planning Agreement/public benefits, scale and density, flooding

Legislation Cited:

Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2012
Sydney Development Control Plan 2012
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997
Draft Sydney Local Environmental Plan 2011
Draft Sydney Development Control Plan 2011

Cases Cited:

Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009

Category:

Principal judgment

Parties:

Lincon Developments Pty Ltd (Applicant)

Council of the City of Sydney (Respondent)

Representation:

Mr M Staunton (Applicant)
King & Wood Mallesons (Applicant)

Mr A Hawkes
City of Sydney Council (Respondent)

File Number(s):

11031 of 2012

Judgment

Background

1. This appeal was lodged against the Central Sydney Planning Committee's refusal of a development application comprising a Stage 1 Integrated Development for a commercial and residential development located at 106 - 116 Epsom Road, Zetland. The proposal comprised six (6) buildings with 1000 m2 of commercial/retail floor space and 52,900 m2 of residential floor space. Also, some 561 residential units and 515 car spaces within three (3) separate basement car parks.

1. A number of contentions were initially raised for the appeal, which are summarised as follows:

• Adequacy of public benefits in terms of proposed additional FSR
• Flooding impacts
• Adequacy of access between the front and rear portion of the land
• Building height
• Building separation and setbacks
• Consistency with the controls for public open space
• Proposed road system inconsistent with the LEP and DCP controls
• Integration of development into the existing neighbourhood
• Economic and orderly development.

1. The appeal commenced by way of a s 34 conference. This involved extensive conferencing between the parties. Consequently the application was amended and the Respondent now accepts that all the contentions have been satisfied. However in the absence of delegation from council to enter a s 34 agreement, the s 34 conference was terminated and proceeded to determination.

The site

1. The site is located on the eastern side of the Green Square Urban Renewal Area. It is to the south of Victoria Park and to the east of the future Green Square Town Centre.

1. The property is known as 106-116 Epsom Road, Zetland (Lot 1 DP 830870). It has an area of 21,560 m2 and consists of two rectangular parcels of land. The two parcels are joined by a narrow access way that has a varied width of between 4.9 m and 6 m.

1. The larger (southern) portion has a 98 m frontage to Epsom Road, while the rear portion is land-locked and is at level approximately 1.7 m higher than the front parcel of land.

1. The front portion of the site contains two industrial buildings. These buildings are currently used for the purpose of distribution, storage, warehousing and ancillary offices. The remainder of the site comprises concrete hardstand areas.

1. The rear portion of the site contains no buildings and is currently used as a car park and holding yard.

The proposal

1. The amended development application is contained in Exhibit A and the development is described as follows:

The Stage 1 DA seeks approval for a mixed-use development, which predominately consists of residential uses. The Stage 1 DA will establish the street and access layout across the site as well as the building envelope for future development of the site. The site will be subject to individual development applications for each building on the site and associated works.

Specifically, this Stage 1 DA seeks approval for the following:

• Demolition of existing structures;
• Proposed land uses including retail/commercial floor space and residential uses;
• Building envelopes including basements;
• Internal street layout including footpaths and other pedestrian/cycle within the site;
• Location and development of open space as per the landscape concept plan;
• Concept for infrastructure upgrades including stormwater and flood mitigation measures; and
• Development staging.

1. The proposed development details are:

• Total Development GFA including retail/commercial use = 47418 m2
• Retail/commercial use component = 1980 m2
• Site area = 21560 m2
• Proposed FSR of 2.2:1, arising from a base 1.5:allowance and including:
• Additional floor space (community infrastructure floor space at Green Square) in accordance with clause 6.14(2)(b) for up to an additional 0.5:1
• Additional 10% of floor space to be achieved subject to design excellence in accordance with clause 6.21(7) of the SLEP.

1. The proposed building envelopes comprise:

• Building Al - 10 storeys-GFA 7,511m2;
• Building A2 - 14 storeys - GFA 13,590m2;
• Building Bl - 9 storeys - GFA 8,928m2;
• Building B2 - 8 storeys - GFA 8,802m2;
• Building B3 - 5 storeys - GFA 1,458m2;
• Building B4 - 5 storeys - GFA 3,414m2;
• Building CI - 8 storeys - GFA 4,131 m2;
• Building C2 - 5 storeys - GFA 61,377m2;
• Building C3 - 5 storeys - GFA 2,547qm;
• Building Dl - 8 storeys - GFA 8,802m2; and
• Building D2 - 8 storeys - GFA 4,131 m2

1. The proposed land uses are listed as:

.1 Residential Uses

An indicative residential unit mix has been calculated to provide an indication of the total number of units that potentially could be accommodated on the site. This application does not seek approval for this unit mix. The site will be subject to separate detailed development applications that will include total number of units and their layouts for each building.

The indicative unit mix is provided in Table 4 below.

Table 4. Proposal total residential unit mix

Unit Type	Total	Proposed Mix	Council's SDCP mix requirement
Studio	22	4.5%	5 - 10%
1 B	156	31.9%	10 - 30%
2 B	234	47.9%	40 - 75%
3 B	77	15.7%	10 - 100%
Total	489	100%

Council's SDCP allows for more than 30% of one bedroom dwellings to be provided only if the combined proportion of studio and one bedroom dwellings do not exceed 40% of total dwellings. The proposal complies with this provision. Therefore, the proposed total unit mix is consistent with Council's DCP

.2 Retail/Commercial Uses

The proposed development potentially includes retail/commercial land uses. The proposal currently includes a total of 1,980m2 of retail/commercial floor space that is located at ground floor in Building Al and A2 fronting Epsom Road.

.3 Basement car parking

.4 Street layout. Pedestrian and bike access, specifically:

• An internal north - south road including pedestrian and bicycle access, known as George Julius Street;
• A pedestrian and bicycle east-west link, known as Rose Valley Way located between Block A and B. Rose Valley Way is 18 metres wide and will be for pedestrian and bicycle use only;
• A north-south street between Block B and C, known as Letitia Street. Letitia Street is 9 metres wide. The section of the Letitia Street that is located between Rose Valley Way and Peters Street is proposed for pedestrian and bicycle use with no vehicles allowed; and
• An east-west street, between Block B and D, known as Peters Street.
• The main vehicular access to the site is from Epsom Road. A new north-south road will be provided to allow vehicular, pedestrian and cycle access across the site in this direction.
• Further, pedestrian access will be provided off this main north-south road in between the buildings provided a high level of permeability across the site.

.5 Public Domain, Open Space and Landscaping;

The proposed development includes significant public domain benefits, open space and landscaping for the future residents and surrounding community including:

• New street, pedestrian and bicycle access connecting the site to surrounding area;
• Significant landscaping across the site;
• Open space that is accessible to the public including new park of 4,689 m2; and
• Upgrade of footpath and site frontage to Epsom Road;

.6 Development Staging:

The proposed development comprises of four development stages as shown in Figure 13. The first stage of development, Stage 1 consists of Block A and development of internal north-south street. The development of Blocks B, C and D, will be developed in Stages 2, 3 and 4, respectively.

In order to address the pre and post flood storage across the site, Stage 3 will be temporarily excavated for flood storage use, which will not result in increased flood impacts on the site or surrounding area.

.7 Utility Services and Infrastructure upgrade:

The Proponent is committed to delivering infrastructure upgrades that will provide a significant benefit to the subject site and to the Epsom Park precinct. Some of the infrastructure upgrades to be included in the overall project include:

• A sub-floor stormwater detention below Blocks B and C;
• Drainage works at new entry, at intersection of Epsom Road and new north-south street
• Drainage works throughout the site in delivery of main north-south street; and Street lighting across site; and
• Underground cabling.

Planning controls

1. According to the evidence before the Court, the following planning regime applied.

(a) State Environmental Planning Policy (Infrastructure) 2007;

(b)   SEPP 55 - Remediation of Land;

(c) South Sydney Local Environmental Plan 1998;

(d)   Draft Sydney Local Environmental Plan 2011;

(e)   South Sydney Development Control Plan 1997 (including Part G: Special Precinct No.9 Green Square);

(f)   Sydney Development Control Plan 2012;

(g)   South Sydney Development Control Plan 11: Transport Guidelines for Development 1996;

(h)   City of Sydney Contaminated Land Development Control Plan 2004;

(i)   City of Sydney Notification of Planning and Development Application Development Control Plan 2005; and

(j)   Green Square Affordable House Development Control Plan 2002; and

(k)   NSW Flood Plains Manual.

The evidence

1. Insofar as a considerable amount of detailed evidence was considered during the s 34 Conferencing procedures, which ultimately lead to the contentions being satisfied, the only expert statements tendered were by:

• Ms C Ch'ng; Urban Designer with CCS
• Ms K Wedgewood; Specialist Planner with CCS.

1. Ms Wedgewood's unchallenged assessment of the revised proposal (designated as s 34 plans) is substantially reproduced as follows:

Overview

1. The application was lodged in November 2011 under the South Sydney Local Environmental Plan 1998 and South Sydney Development Control Plan 1997. At the time of lodgement, the Draft Sydney Local Environmental Plan 2011 and Draft Sydney Development Control Plan 2011 had been publicly exhibited (from 2 February 2011 to 21 April 2011). The LEP was therefore a matter for consideration in the assessment of the application, in accordance with s 79(c) of the Environmental Planning and Assessment Act 1979.

1. The appeal was lodged with the Land and Environment Court in October 2012. By this stage the Draft LEP had been endorsed by Council and the Central Sydney Planning Committee, and had been referred to the NSW Department of Planning and Infrastructure. On 14 December 2012 the Sydney Local Environmental Plan 2012 was gazetted and the Sydney Development Control Plan 2012 came into effect.

1. The s 34 plans largely reflect the new controls (including floor space ratio, height, open space and road layouts).

Zoning and Heritage

1. The site is zoned Mixed Uses 10(b) under the South Sydney LEP 1998. Under the Sydney LEP 2012 it is zoned B4 - Mixed Uses.

1. The site is located within Green Square Urban Renewal Area in both sets of controls. The subject site is not a heritage item nor is it located within a heritage conservation area in either the South Sydney LEP 1998 or the Sydney LEP 2012. It is located diagonally opposite 1-3 Rosebery Avenue, which is a heritage item identified in the Sydney LEP 2012

Floor Space Ratio

1. The South Sydney DCP permits a base FSR of 1.5:1 on the site. A maximum FSR of up to 2.5:1 can be considered, however bonus floor space can only be achieved if the development scheme is acceptable, and in conjunction with the provision of substantial public and environmental benefits. This is a requirement of s 3.2 of the South Sydney DCP 1997 (Part G Special Precinct No. 9 - Green Square). In addition, Part C (Section 4) of the South Sydney DCP states that Council may provide floor space incentives to developers. Negotiations for bonus floor space are to occur during the development application process and must include the provision of "significant additional public spaces or other material benefits to the community".

1. The FSR applicable to the site under the Sydney LEP 2012 is 1.5:1, which is calculated in accordance with the definition of GFA provided in the Sydney LEP 2012.

1. Clause 6.14 of the Sydney LEP 2012 provides the site with the opportunity of achieving additional floor space ("community infrastructure floor space") up to a maximum of 2:1. The floor space bonus is only applicable if the development includes recreation area/s, public facilities, public roads, drainage or flood mitigation works.

1. The Sydney LEP 2012 also allows Council to consider up to 10 percent additional floor space (or building height) if the applicant undertakes a competitive design process for the site. Therefore, the maximum permissible FSR this site may be able to achieve under the Sydney LEP 2012 is 2.2:1. The additional FSR provided through the competitive design process is not considered until a Stage 2 development application is submitted to Council. Therefore, in my opinion (Ms Wedgewood) it is not a relevant consideration at this stage.

FSR Summary

1. The s 34 scheme has a compliant floor space ratio of up to 2.4:1, measured in accordance with the South Sydney DCP 1997, or 2.2:1 under the Sydney LEP 2012. The scheme relies on the bonus floor space provisions contained in the South Sydney DCP 1997.

1. A public benefit offer has been provided by the developer and includes the following:

(a)   Remediation and dedication of the rear portion of the site as a public parkland (4689m2) and adjacent roadway (1439.4m2).

(b)   Remediation and dedication of land for a north-south road (1696.6m2).

(c)   Remediation and dedication of land for an east-west road (1795.7m2).

(d)   Remediation and dedication of land for a north-south through site link (831.8m2).

(e)   Remediation and embellishment of the encumbered land occupied by a stormwater channel corridor (1579.8m2).

(f)   Dedication of a park and associated road together with a credit of $2,308,217.50 against the Section 94 levies imposed on the first Stage 2 Development Consent granted. Any outstanding balance will be credited against the Section 94 levies imposed under any later Stage 2 Development Consents (until such time as the credit is exhausted).

(g)   Monetary contribution of $527,453 for Green Square Town Centre works which may be reduced if the scope of the public benefit work increases.

1. The public benefit offer is acceptable to Council. A Voluntary Planning Agreement has been prepared and is on public exhibition from 5 July 2013 until 3 August 2013. At the time of writing, no submissions have been received.

1. It is not appropriate for a Stage 1 DA consent to specify a specific FSR, as the total quantum of floor space can only be determined as part of a detailed Stage 2 DA. Therefore, Condition (6) of the recommended conditions of consent outlines the maximum FSR permitted under the Sydney LEP.

Building Height

1. The building height permitted under the South Sydney DCP 1997 is 18 m. Building height is defined as being the vertical distance in metres between the ceiling of the topmost habitable floor and the natural ground level immediately below that point.

1. The Sydney LEP 2012 provides a range of building heights for the site. This includes 45 m along the Epsom Road frontage, between 3 m and 30 m on the remainder of the front portion of the site, and 12 m on the rear portion. Under the Sydney LEP 2012 building height is measured from ground level to the highest point of the building (including plant and lift overruns).

1. Clause 5.6 of the Sydney LEP provides that minor architectural roof features may exceed the height limit subject to a merit assessment by Council.

1. The proposal (as amended) abandons the height controls contained in the South Sydney DCP 1997 and applies the uplift provided in the Sydney LEP 2012. This is an acceptable approach.

1. The s 34 plans are generally consistent with the height controls provided in the Sydney LEP 2012, however they show an indicative lift overrun contained within an architectural roof feature at the top of each building. An architectural roof feature would not form part of a Stage 1 concept approval, and therefore approval should not be given to these components of the development. This is reflected in Condition 7 of the recommended conditions of consent contained in Attachment B.

Section 94 Contributions

1. In accordance with the City of Sydney s 94 Contributions Development Contributions Plan 2006, the value of the s 94 contributions generated by the proposed development can be offset against the value of the open space land to be dedicated to Council. The amount of the offset can only be determined at Stage 2, as it is dependent upon the final approved floor space, the amount of non-residential floor space, and the number and mix of apartments.

1. Consequently, Ms Wedgwood supports the conditional approval of the amended application on the following basis:

• The application has been amended during the s 34 process and is now generally consistent with the Sydney LEP 2012 and Sydney DCP 2012.
• The applicant has proposed a FSR of 2.2:1, measured in accordance with the Sydney LEP 2012. This includes a bonus of 0.2:1 in return for public benefit works.
• As this is a Stage 1 concept proposal, the maximum FSR achievable on the site will not be precisely determined until a detailed Stage 2 development application is approved. However overall, the indicative maximum floor space ratio is acceptable.
• A maximum building height has been approved under Condition (7) of the recommended conditions of consent. The maximum heights exclude the indicative architectural roof features shown on each building.
• Offsetting the public benefit offer against the Section 94 contributions is acceptable in principle, within the confines of the relevant controls and guidelines. The offset can only occur at determination of a Stage 2 development application when the final amount of floor space and number of units is approved.

1. Ms Ch'ng separately considered the public domain, built form, consistency with SLEP 2012 and consistency with the Residential Flat Design Code (RFDC) contentions. Accordingly she provided a final assessment of the amended proposal on the following basis, which is substantially reproduced as follows:

Public domain

1. The proposed streets and parks are in keeping with the public domain objectives of the Sydney DCP 2012.

4.1.1 Public open space

4.1.1.1 The northern part of the site will be a park with the eastern strip that will be part of George Julius Avenue.

1. The streets have been slightly varied in location from SDCP 2012, Figure 5.46 Epsom Park - Open Space and setbacks but are relatively the same in total area. Drawing number DA 1.00 Context Plan prepared by Architects + Partners demonstrates the realignment of the roads to allow for more efficient developable areas within the site. This drawing also shows the impact of the realignment of these roads on the development potential of other sites within the Epsom Park Precinct. The variations are as follows:

4.1.2.1   Peters Street has been shifted slightly south. This has allowed an appropriate depth to the buildings envelopes to the north and an appropriate setback from the northern boundary.

4.1.2.2   George Julius Avenue has been shifted slightly east to allow sufficient width for temporary site access as the neighbouring property to the west is currently being developed.

4.1.2.3   Rose Valley Way has moved slightly south and its orientation slightly varied. This allows the existing stormwater canal easement to fit wholly and more or less centrally in the reservation.

4.1.2.4   Letitia Street has moved slightly east to ensure appropriately sized courtyards in Blocks B and C.

4.1.2.5   The realignment of Peters Street will extend through the sites to the east and west of 106-116 Epsom Road within the Epsom Park Precinct, the realignment of George Julius Avenue and Letitia Street will extend north through to Zetland Avenue.

Built form

1. Ms Ch'ng states that the aforementioned street reservations define 5 blocks that contain the building envelopes, which are subject to co-ordination and survey. Her assessment of the built form is:

1. .1 Block A

(a)   On Epsom Road and bounded by the western street reservation and the 18 metre wide reservation that contains the existing stormwater easement and the eastern boundary is block A.

(b) Block A contains a building envelope that occupies the entire area of the block. Above six stories it is set back 3 metres from Epsom Road and from the western end. Above 10 stories it is set back from the eastern boundary in line with the western boundary of the lane. The remaining part rises to 14 storeys. The ground floor will be mainly occupied by retail uses.

(c) The maximum building height in metres for the building envelope of Block A is 45m consistent with the maximum height in metres as shown in the Sydney LEP 2012. This will be measured from the ground level to the uppermost point of the building in accordance with the Standard LEP definition of height from Epsom Road and from the future public domain levels on the northern side of the building.

.2 Block B

• Block B contains 4 building envelopes
• Together the building envelopes form a courtyard in the middle of block B.
• The dimensions of the buildings and courtyards are sufficient to ensure separation between buildings as recommended in the RFDC. The public domain as described above is not to be reduced to ensure this compliance.

.3 Block C

• Alongside the eastern boundary and also bounded by the 18 metre wide reservation that contains the stormwater easement, the 9 metre wide lane and the 20 metre wide street is block C.
• Block C contains 3 building envelopes.
• Together the building envelopes form a courtyard on the east side of block C.
• The dimensions of the buildings and courtyards are sufficient to ensure separation between buildings as recommended in the RFDC. The public domain as described above is not to be reduced to ensure this compliance.

.4 Block D1

• Alongside the 9 metre wide western reservation and also bounded by the northern boundary of the southern part of the site, the 9 metre wide lane and the 20 metre wide street is block D1.
• Block D1 contains 1 building envelope
• Building envelope D1 faces the north side of the 20 metre street reservation. It is 21 metres deep. It is setback 3 metres from the northern boundary of the southern part of the site. Above six stories it is set back 3 metres from the streets. It rises to eight storeys and is to have a maximum building height of 27m measured from the future public domain levels to the uppermost point of the building in accordance with the Standard LEP definition of height and consistent with the maximum height in metres as shown in the Sydney LEP 2012.

.5 Block D2

• Alongside the eastern boundary and also bounded by the northern boundary of the southern part of the site, the 9 metre wide lane and the 20 metre wide street is block D2.
• Block D2 contains 1 building envelope.
• Building envelope D2 faces the north side of the 20 metre street reservation. It is 21 metres deep. It is setback 3 metres from the northern boundary of the southern part of the site. Above six stories it is set back 3 metres from the street. It rises to eight storeys and is to have a maximum building height of 27m measured from the future public domain levels to the uppermost point of the building in accordance with the Standard LEP definition of height and consistent with the maximum height in metres as shown in the Sydney LEP 2012.

Height in storeys

1. Ms Ch'ng tabulated the proposed building heights as follows:

Building	Height in storeys SDCP 2012	Height in storeys Proposal	Additional storeys above the control
Building A1	6 storeys	10 storeys	4 storeys
Building A2	12 storeys	14 storeys	2 storeys
Building B1	8 storeys	9 storeys	1 storey
Building B2	7 storeys	8 storeys	1 storey
Building B3	4 storeys	5 storeys	1 storey
Building B4	4 storeys	5 storeys	1 storey
Building C1	7 storeys	8 storeys	1 storey
Building C2	4 storeys	5 storeys	1 storey
Building C3	4 storeys	5 storeys	1 storey
Building D1	7 storeys	8 storeys	1 storey
Building D2	7 storeys	8 storeys	1 storey

1. Accordingly, she says that:

The above non-compliance with height in storeys is acceptable if each building envelope allows for:

a) a minimum floor to floor height of 3.05m for residential

b) a minimum floor to floor height of 3.6m for commercial/retail uses at ground level

c) a minimum floor to floor height of 3.3m for any commercial first floor and above.

d) roof depth and

e) a set-up from street level.

This will have to be demonstrated in detail at Stage 2.

1. Furthermore, her assessment is:

• With these assumptions the building envelopes are less than the maximum building heights in metres shown in the Sydney LEP 2012 (although these are slightly shifted in plan to relate to the layout of the streets, as described above) when measured from the assumed new street levels.

Note: The design of ground and first floor units in mixed use developments are to be flexible with multiple configurations and floor to ceiling heights of at least 3.6m to enable both residential and business uses. Refer to SDCP 2012 4.2.1.2 Floor to ceiling heights for commercial and retail buildings.

1. With regard to the proposed interface with the public domain, Ms Ch'ng's assessment is:

• As part of the revised development proposal the location of the parking and the on-site management of stormwater under Blocks B and C are not to occur above the future public domain levels and are to be located within the developable areas and it is not permitted to extend under any future public domain unless demonstrated it is required for stormwater management.
• For the purposes of a Stage 1 DA approval the proposal is acceptable subject to more detail in Stage 2.
• Epsom Road Setbacks at this stage will remain as proposed. However, if Sydney Water's position changes, these changes will form part of the brief for the design excellence competition. This may include moving the position of the envelope of Building A northward by 1.4 metres to allow for a 5m wide footpath along Epsom Road. This will have to be addressed at a future stage as there has been no agreement from Sydney Water to pipe the open culvert and to allow a street over the current easement.

Consistency with SLEP 2012

1. According to Ms Ch'ngs assessment:

.1 FSR

• Maximum base FSR of 2:1 based on Sydney LEP 2012 and is dependent upon requirements in SLEP 2012 CI. 6.14: Community infrastructure floor space at Green Square. Eligibility for the additional floor space is dependent upon an acceptable public benefit offer to Council.
• There is the potential for an additional 10% FSR if design excellence is achieved under the City of Sydney Competitive Design Policy.
• These maximum FSR's are not to be exceeded.

.2 Design excellence

• As part of the Stage 1 DA, a Design Excellence Strategy has been submitted in accordance with SDCP 2012, 3.3 Design Excellence and Competitive Design Processes.
• The Stage 1 DA seeks the uplift of FSR within the height controls.
• Drawing number DA000 Cover page, GFA/FSR Calculation demonstrates the distribution of additional maximum GFA for each block upon the successful delivery of the Competitive Design Process.
• The architectural roof features are required to access the proposed roof top gardens. The extent of architectural roof features will be assessed as part of the design excellence competition in relation to SLEP 2012, Clause 5.6. At this stage the drawings will show these as indicative only, with a broken line and a reference to SLEP 2012 Clause 5.6. This is acceptable and will be assessed at Stage 2 DA. The envelopes shown are envelopes only and do not represent the bulk of future roof top envelopes. This is because core and stair locations are not known at this stage and many positions are possible. The envelopes provide flexibility for their future location. The architectural roof features should be consistent with the objectives of SLEP Clause 5.6 at Stage 2 DA.

.3 Consistency with the Residential Flat Design Code

Deep soil

• The Proposal is unable to meet the deep soil requirement of 6.25% of site area within the developable area of the site.
• The dedication of the park is considered as part of the development and more than contributes to the deep soil required across the site.

Communal open space

• The Proposal is unable to meet the 25%-30% of site area for communal open space. Similar to the deep soil area non-compliance, this is acceptable due to the dedication of the rear portion of the site for a park.
• Roof top gardens are proposed as a way to 'top up' the areas of communal open space.
• The roof top gardens will help address the issue of the lack of solar access to the communal open space to the courtyard buildings. The delivery of the roof top gardens is a matter for the Stage 2 DA.

Amenity

Sample plans have been provided of part of the proposal to demonstrate how good residential amenity can be delivered. These indicative plans (DA 2.10, DA 2.11, DA 2.12) have not sufficiently demonstrated the objectives of the RFDC as not apartment layouts showing location of habitable rooms have been shown. This can be provided in more detail in Stage 2 DA's

Solar access

• Refer to S34 Amended Stage 1 Masterplan - Solar analysis based on revised envelope massing dated 10 April 2013 prepared by Architects+Partners
• The RFDC recommends that living rooms and private open spaces for at least 705 of apartments in a development should receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid winter. In dense urban areas a minimum of 2 hours may be acceptable. The Proposal is unable to achieve sun access to 70% of the apartments for a minimum of 2 hours in midwinter for each development block as recommended in the RFDC. However, across the development site, that is, the 5 development blocks, on average 70% of apartments should be able to achieve 2 hours solar access at midwinter. This will be investigated in more detail in Stage 2.
• The overshadowing impact of the Proposal on 57-65 Epsom Road has been indicatively tested to demonstrate that 57-65 Epsom Road is capable of delivering 70% solar access to its apartments. This is site is subject to a further urban design study by the City of Sydney and the overshadowing impacts of the Proposal on this site will have to be investigated in more detail in Stage 2.

1. From this assessment, Ms Ch'ng concludes that:

• The evidence in relation to the amended Stage 1 DA for 106-116 Epsom Road is that it is acceptable from an urban design perspective.
• While the layout of the future streets and the dimensions of the street blocks are not exactly as envisaged by the SDCP 2012, the Proposal balances the delivery of the public domain with its potential development potential. Importantly, the proposal for the northern part of the site to be public open space.
• Although the Proposal exceeds the number of storeys control in the SDCP 2012, the proposed buildings are all within the height in metres controls as per the SLEP 2012. In addition, the street wall heights as proposed in the SDCP 2012 are provided in the Stage 1 DA building envelopes, this will help with the public domain interface and human scale.
• Any variation to the primary controls in the SLEP 2012 is subject to the Stage 2 DA process and subject to the requirements of the SLEP 2012 and SDCP 2012.

Conclusion

1. As noted initially, the determination of this development application has involved considerable conferencing and negotiation by the parties. This has resulted in an amended application that the parties are satisfied with and that is supported by the evidence tendered to the Court.

1. Relevantly, I note that this is a Staged development application under the provisions of s 83A of the EP & A Act 1979, which effectively sets out concept proposals for the development of the site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The agreed draft conditions of consent cover this outcome.

1. Accordingly, I have considered the unchallenged expert evidence presented to the Court and supported by the submissions from both parties that the amended proposal for Stage 1 merits conditional consent.

1. In doing so, I note evidence on the relative time frame of the planning controls whereby the South Sydney LEP 1998 was the prevailing control when the application was lodged in November 2011, together with South Sydney DCP 1997. However, the Draft Sydney LEP 2011 and Draft Sydney DCP had been exhibited and were therefore matters for consideration under the savings provisions.

1. Subsequently on 14 December 2012 the Sydney LEP was gazetted and the Sydney DCP 2012 came into effect. I then accept the submissions that determinative weight should be given to the provisions of the Sydney LEP 2012 for this staged development, resulting in its conditional approval. In doing so, I accept that detailed designs are subsequently required for each stage.

1. This approach is consistent with that adopted by Tuor C in Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009. That matter also involved a similar consideration of the transition in planning controls and at para 63 she concluded:

63. The proposal does not comply with the FSR and height control in DCP 1997. Given its existing context, the proposal would not be approved under these controls. However, these controls have been effectively abandoned and repealed. LEP 2012 and DCP 2012 are new controls, which do not apply in their terms, but should be given weight. I must be satisfied that the proposal is consistent with the planning regime established by LEP 2012. For the reasons outlined above, I am not satisfied that a variation to the FSR control, to the extent proposed, is warranted or would be consistent with the planning intent of LEP 2012.

1. Apart from this, in accepting the submissions, I note that the agreement by the parties to the staged development is dependent on detailed negotiations resulting in the VPA. This allows for various offsets and bonuses in the application of the controls. In the circumstances that the Court has no involvement with the VPA, which is a matter for council, I accept the submissions on the basis of council's agreement to the discretionary matters, resulting in development consent being granted.

Court orders

1. The Court orders that:

(1)   Leave to rely on the amended plans in Exhibit A for Stage 1 of the development application is granted.

(2)   The appeal is upheld.

(3)   Development consent is granted to DA No D/2011/1760 dated 2 November 2011 for a Stage 1 Integrated Development for commercial and residential development at 106 - 116 Epsom Road, Zetland subject to the conditions in Annexure A.

(4)   The exhibits be returned except for 3, 4, 5, 6, A and B.

Note: The Court notes the Applicant's agreement to pay the Respondents costs thrown away pursuant to s 97B of the EP & A Act 1979 in the amount of $6000.

R Hussey

Commissioner of the Court

Decision last updated: 31 July 2013