Marana Developments Pty Limited v Botany City Council

[2011] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110

Hearing dates:

18-20 April 2011

Decision date:

18 May 2011

Jurisdiction:

Class 1

Before:

Morris C.

Decision:

1. The appeal is upheld;

2. Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate is modified as follows:

(a)The approved development is: demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 102 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate;

(b)Conditions of the consent as modified are contained in Annexure "A";

3. The exhibits, other than Exhibits D, H and 2 are returned.

Catchwords:

Modification; whether substantially the same development; residential flat building.

Legislation Cited:

Environmental Planning and Assessment Act 1979; Environmental Planning & Assessment Regulation 2000; Botany Bay Local Environmental Plan 1995; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; State Environmental Planning Policy No. 1; SEPP (Building Sustainability Index: BASIX) 2004

Cases Cited:

Marana Developments v Botany Bay City Council [2010] NSWLEC 1237; Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd [1998] 97 LGERA 433; Vacik Pty Ltd v Penrith City Council NSWLEC, 24 February 1992 unreported; Zhang v Canterbury City Council [2001] 115 LGERA 373

Texts Cited:

Residential Flat Design Code; City of Botany Bay Development Control Plan No. 35 - Multi Unit Housing and Residential Flat Buildings; City of Botany Bay Development Control Plan - Building Design and Construction; Off- Street Parking Development Control Plan - Botany Council; Development Control Plan No. 32 - Landscape; Energy Efficiency Development Control Plan

Category:

Principal judgment

Parties:

Applicant
Marana Developments Pty Ltd

Respondent
Botany Bay City Council

Representation:

Applicant
Mr I Hemmings

Respondent
Mr T Hale
Applicant
Reid & Vesely

Respondent
Houston Dearn O'Connor

File Number(s):

10926 of 2010

Judgment

1. This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Botany Bay Council (the council) of an application made under s 96(2) of the Act to modify a development consent granted by the council on 25 May 2009. The consent is for the re-subdivision of land, demolition of buildings and the construction of residential flat buildings comprising a total of 76 units in two stages. The modification application is seeking the construction of a similarly arranged development containing a total of 102 units.

The site and its context

1. The subject site comprises two allotments, Lots 1 and 2 in DP515866 and is known as Nos. 22-24 Rhodes Street, Hillsdale (the site). Lot 1 (No. 22 Rhodes Street) has frontage to Rhodes Street and is primarily regular in shape with an extended section to the rear of No. 20 Rhodes Street resulting in an overall L-shaped allotment with an area of 2229 sq m and containing a split-level brick cottage. Lot 2 (No. 24) is a battle-axe allotment with a handle off Rhodes Street running along the northern boundary of Lot 1, currently providing pedestrian access to the main land area to the east. Lot 2 currently obtains its vehicular access from Flack Avenue and has an area of 4423 sq m. It contains a two storey residential flat building comprising 33 units with at grade parking. Total area of the site is 6652 sq m.

1. To the north of the site is a Sydney Water owned reserve known as Rhodes Street Reserve which contains a stormwater channel and is developed as a passive recreation area. Matraville Public School is immediately to the east of the site and to the south is a mix of residential flat buildings, dwellings and townhouses. One and two storey dwellings and a newly constructed multi-unit housing development are located opposite the site on the western side of Rhodes Street.

Background

1. Development consent 09/102 (the consent) was issued by the council on 25 May 2009 and authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 2, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate. The purpose of the staged development is to allow satisfaction of a life tenancy arrangement in place in relation to the dwelling on Lot 1 and the fact that the land is in separate ownership.

1. Stage 1 works comprised the demolition of the existing residential flat building and construction of four buildings, two seven storey blocks facing the reserve (Buildings AB and DC) and two lower, three storey buildings to the south (Buildings G and FE) above a basement carpark. Vehicular access to the site was approved from the right-of-way off Rhodes Street. Stage 2 involves the construction of an 8 units above a basement carpark in a building (Building H) that varies from one to three storeys above the carpark. A plan, which details the location of these buildings, is provided as Appendix 1.

1. In addition to the consent, the Court, in Marana Developments v Botany Bay City Council [2010] NSWLEC 1237 has granted consent to development application No. 10/119 for alterations to the existing residential flat building at No. 24 Rhodes Street to provide an additional two units, refurbishment, parking and landscaping. That part of the application which proposed strata title and Torrens title subdivision was refused on the basis that the subdivision would not facilitate the orderly and economic development of the land in accordance with the council's planning strategies for comprehensive urban renewal. This decision is currently the subject of an appeal pursuant to section 56A of the Land and Environment Court Act 1979 . Those proceedings have been stayed pending the outcome of this appeal.

The proposal

1. The application seeks to modify the consent by the redesign and reconfiguration of the Stage 1 buildings to increase the number of units. Minor change to the Stage 2 works is proposed however there is no change to the number of units in that building. The changes are generally contained within the same building envelopes and floor space however changes to the external appearance and layout of the buildings are more significant. An additional basement parking level is also proposed.

1. The changes proposed can be summarised as follows:

• Increase the number of units in Stage 1 from 76 to 102. This is achieved through the reduction in floor area of those units contained within Buildings CD, FE and G, which, under the consent incorporated 40 units whereas the modified proposal is for 66.
• Change in the unit mix from 62 x 2 bedroom and 14 x 3 bedroom to 3 x studio, 29 x 1 bedroom, 66 x 2 bedroom and 4 x 3 bedroom.
• Increase in the on-site parking provision from 160 spaces to 183 spaces.
• External changes to the building to reflect reconfigured room layouts, window and balcony locations etc and associated reduction in unit floor areas to contain the buildings within the same footprint, setbacks, heights and floor space.

The Planning Controls

1. The site is zoned Residential 2(b) pursuant to the provisions of Botany Bay Local Environmental Plan 1995 (the LEP). The objectives of the plan are included in clause 5 of the LEP and those relevant to the matter are:

(1) - In relation to the form and function of the local government area of Botany Bay City

(d) to improve the image of the local government area of Botany Bay City by ensuring that developments are of a good standard of design, form and function,

(2) - In relation to residential development

(a) to maintain, protect and increase the local government area's permanent residential population,

(d) to ensure the protection and improvement of the amenity of residential areas,

(e) to provide for a range of housing types to cater for all socio-economic groups without adverse effects on the character and amenity of the local government area of Botany Bay City,

(e1) to provide for affordable housing without adverse effects on the character and amenity of the local government area of Botany Bay City,

1. The primary zone objective for the 2(b) zone is to provide for the development and use of housing, other than detached housing, in appropriate locations, together with community and service uses of a type and scale appropriate to the enjoyment of such housing.

1. The secondary objectives relevant to the application are:

(a) to provide scope for high-quality residential development in innovative forms on identified sites,

(b) to improve the quality of the residential amenity by encouraging landscaping and good design in both new developments and renovations,

(c) to encourage the revitalisation and improvement of older established residential areas by rehabilitation and suitable development,

(f) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone.

1. Clause 12 of the LEP sets a floor space ratio (FSR) and states:

(1) The Council may only consent to the erection of a building if the ratio of the gross floor area of the building to the site area of the land on which the building is to be erected does not exceed:

(a) 0.5:1 within Zone No 2 (b), .....

(2) Notwithstanding the provisions of subclause (1), the Council may consent to the carrying out of residential development on land within Zone No 2 (b) to a maximum floor space ratio of 1:1 where the allotment exceeds 2,500 sq m, and where it is of the opinion that:

(a) the proposed development will satisfy the primary objective of the zone,

(b) the scale of the proposed development, if above 2 storeys in height, is compatible with the scale of existing residential development in the locality,

(c) the architectural character and design of the proposed development does not adversely affect existing residential development in the locality,

(d) the provision of off-street parking for residents and visitors adequately meets the needs of the development,

(d1) the provision of on-site car parking does not dominate or detract from the appearance of the proposed development or the streetscape,

(e) the provision of private and communal open space on the site is adequate for the proposed development,

(e1) the proposed development includes landscaping that screens and softens the visual effect of the buildings on the site, and creates useable and comfortable open space areas,

(f) the environmental amenity of the proposed development and of the immediate locality includes measures to confine or reduce noise and to maintain privacy,

(g) the proposed development ensures adequate sunlight, ventilation and privacy to its residents, to residents of adjoining development and to users of nearby public and private open space,

(h) the proposed development makes provision for the adequate absorption of stormwater, and includes deep root zones for tree planting,

(i) the proposed development incorporates pedestrian links at points where they are most prominently and safely connected to the existing street and pedestrian network, and

(j) the proposed development provides a safe and secure environment for its residents.

1. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) is relevant to the application. In accordance with clause 6, in the event of any inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

1. SEPP65 contains a number of Design Quality Principles and those relevant to the application are Principles 2 - Scale, 3 - Built Form, 4 - Density, 7 - Amenity and 9 - Social dimensions and housing affordability.

1. Clause 30 of SEPP65 requires consideration by the consent authority of the advice of the relevant design review panel concerning the design quality of a residential flat building.

1. SEPP65 references the Residential Flat Design Code (the RFDC) and in particular, the ceiling height and apartment area recommended in that code cannot, pursuant to clause 30A, be used as grounds to refuse development consent for residential flat buildings.

1. City of Botany Bay Development Control Plan No. 35 - Multi Unit Housing and Residential Flat Buildings (DCP35) also applies to the development. The aims and objectives of that plan are:

· To ensure high quality new multi unit housing and residential flat buildings in the City of Botany Bay.

· To guide the implementation of the design quality principles in State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development.

· To provide a method to analyse and describe current and future local character and principles for multi unit housing and resi dential flat buildings.

· To ensure the style, scale and design of residential developments effectively responds to the streetscape and public domain within the neighbourhood.

· To encourage a development process that considers the physical, heritage and cultural context of the site and surrounding area in developing the site layout and design of the development.

· To promote the principles of ecological sustainable development through energy efficient methods, storm water management, waste reducti on techniques, landscaping and crime prevention techniques.

· To ensure that the use of landscaping and open space are integral to the design and function of the residential development.

· To provide for a range of housing types and forms to accommod ate a diverse and changing population.

· To provide the community with comprehensive controls to ensure appropriate residential development within the City of Botany Bay.

· To protect the amenity of existing residents.

1. Clause 2.7.5 of DCP35 provides specific provisions for Hillsdale Precinct 7 and the site falls within that precinct. The Desired Future Character of the precinct is:

- To promote neighbourhood amenity.

· To encourage site layout and building styles/designs that assist in improving th e visual appearance of the suburb and its streetscapes.

· To encourage a strong landscape and vegetation theme with both the public and private domain.

· To allow the use of allotment bonuses to encourage redevelopment of existing flat buildings in o rder to improve the living environment for residents and enhance the liveability and appearance of the suburb.

· To encourage the consolidation of allotments to promote well designed developments that incorporate energy efficient designs and useable ope n space landscaped areas.

· To ensure access to sites and parking facilities are not a dominant feature in the streetscape.

· To promote through site linkages where a development abuts or is in the vicinity of open space.

1. Clause 3.3.2 provides objec tives for apartment layout, sizes and mix as follows:

O1 To ensure that dwellings are efficient, have high standards of amenity for residents and satisfy environmental performance criteria, such as ventilation and access to natural light.

O2 To be flexible to suit the occupant's requirements.

O3 To ensure residential development contains a mix of residential types (based on the number of bedrooms) to increase the potential for a balanced population.

O4 To ensure adequate provision, design and location of in ternal facilities.

and includes controls for dwelling size as follows:

C6 Dwellings are to have the following minimum areas:

· Studio: 60m 2

· 1 bedroom: 75m 2

· 2 bedrooms: 100m 2

· 3 bedrooms: 130m 2

· 4 bedrooms: 160m 2

Dwelling size means the area insi de the enclosing walls of a dwelling but excludes wall thickness,

vents, ducts, staircases and lift wells.

C7 The combined total number of studio units and one-bedroom apartments/dwellings shall not exceed 25% of the total number of apartments/ dwellings within any single site area.

1. Other relevant development control plans are City of Botany Bay Development Control Plan - Building Design and Construction (the BDCDCP) which provides guidance in the design of residential development in the Residential 2(b) zone, Off- Street Parking Development Control Plan - Botany Council detailing parking requirements, Development Control Plan No. 32 - Landscape and the Energy Efficiency Development Control Plan .

The issues

1. The issues in the matter are whether the development, as modified:

• is substantially the same development as the development for which consent was originally granted;
• satisfies the objectives of the LEP;
• satisfies the 2(b) zone objectives;
• is consistent with the relevant provisions of DCP35 and the BDCDCP.
• satisfies relevant provisions of SEPP65 and the RFDC.

1. Contentions in relation to stormwater, parking, access, aesthetics and energy efficiency have either been resolved or were not pressed by the council.

Section 96

1. The parties disagree on the primary test pursuant to s 96(2)(a) of the Act as to whether the development is substantially the same as the development for which consent was originally granted. Plans which indicate the extent of the variations, including overlays of the approved floorplates with that proposed were prepared by Mr Tayler, architect and tendered with his Expert Report as Exhibit 3. These plans provide excellent assistance to the Court in determining the extent of changes proposed.

1. If the application fails this jurisdictional test, it must fail, even if I determine that the modified plans merit consent. Guidance on this assessment is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, where, at paras 55 and 56, Bignold J described the process for consideration of proposed modification of development as follows:

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development.

56.The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

1. It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved.

1. It is agreed that the proposal utilises similar footprints to that which was originally approved. The building envelopes, whilst also similar differ, with Buildings AB, EF, G and H reduced and Building CD increased in area. The main changes are to the number of units, the size, layout and orientation of those units and the facilities provided within them, the external appearance of the building resulting from those changes and the construction of a second basement level to accommodate additional carparking.

1. The additional 26 units are contained within Buildings CD, EF and G. to achieve this, the floor areas of the units and number of bedrooms have been reduced and areas such as ensuites and laundries deleted, replaced by laundry cupboards in some of the units. Floor areas have been reduced significantly as follows:

The consent

2 bed units 109.4m 2 to 118.5m 2

3 bed units 140.3m 2 to 142.3m 2

Proposed

Studio 40.39m 2 to 43.06m 2

1 bed units 51.94m 2 to 66.58m 2

2 bed units 82.03m 2 to 107.86m 2

2 bed + study 118m 2

3 bed units 124.78m 2 to 125.5m 2

1. Originally, all of the units with the exception of those within Building H, had aspect to the north and south with the corner units also having east or west aspects. To accommodate the additional units, larger units have been divided and a central core provided to service the whole floor whereas the original plans provided for groups of two units to be serviced by an individual lobby and lift area, again with the exception of Block H. This results in a number of single aspect units, some north facing, some with small north facing windows in the corner to facilitate solar access and others south facing. Total number of single aspect units is 44 however, six of these are two storeys with alternate access on the upper level to facilitate flow through ventilation.

1. Mr Hale for the council argues that the changes to the development, particularly in relation to unit size, mix, configuration and quality are such that the development is not substantially the same. The evidence provided demonstrates that the consent was granted with a variation to the FSR controls of the LEP. Mr Hale states that the variation was allowed due to high quality of the units, particularly in relation to the facilities provided (ensuites, laundry rooms and lifts) and the large floor areas and that on this basis, the size and quality of the development was a particularly important, material and essential feature of the development as originally approved.

1. Review of the evidence provided does not support this argument, rather, the council's assessment of the objection to the FSR control pursuant to the provisions of State Environmental Planning Policy No. 1 (SEPP1) suggest that the approval was granted on the basis of the application satisfying the objectives of the control, in particular, that it satisfies the primary zone objectives, is compatible with the scale of existing residential development in the locality and its architectural character and design does not adversely affect existing residential development in the locality. Mr Hale argues, on the evidence of Ms Bell, town planner for the council and Mr Tayler, architect for the council, that applying the provisions of clause 115(1A)(c) of the Environmental Planning & Assessment Regulation 2000 that there is a diminution from the design quality of the development and accordingly, this means that the development is not substantially the same. Applying Moto, he argues that there is a significant qualitative as well as quantitative change to the development, that the quality aspects of the development were an essential feature of the development and therefore it must fail.

1. Mr Hemmings for the applicant disagrees and states that the Design Verification Statement and compliance table incorporated within the Statement of Environmental Effects (SoEE) submitted with the application show that the development is consistent with the design objectives, is compliant with the provisions of the RFDC and is of a high architectural standard. He agrees that there are changes to the design and appearance of the development however argues that the change does not radically transform the development and makes reference to the findings of Stein J in Vacik Pty Ltd v Penrith City Council NSWLEC, 24 February 1992 unreported, where he states the test in the following terms:

" 'substantially' when used in the section means essentially or materially having the same essence."

This view was approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] 97 LGERA 433 at 440.

1. Mr Hemmings relies on the evidence of the town planning experts, Mr Fletcher for the applicant and Ms Bell. They agree that the FSR and building height remain essentially the same. Mr Fletcher details the extent of works that remain the same, with qualifications as stated, which is:

• Nature of the development being a number of residential flat buildings;
• Number of buildings (five);
• Height of buildings and storeys and dimensions;
• Rooflines, building setbacks and building footprint;
• Gross floor area (essentially the same);
• Location of carparking, being within a basement (essentially the same albeit that an increased number of car spaces are provided;
• Location of the driveway and carpark entry;
• Relationship to neighbouring properties in terms of the use, location, height and scale of buildings remains essentially unchanged;
• The landscaped area provided and the proposed distribution of private and community space remains essentially the same.

1. Ms Bell considers that the changes to development are such that it is not substantially the same and cites the number of units, the fact that the proposal does not provide units which accord with DCP35 in terms of unit sizes, internal and external amenity, the additional basement carpark level, changed orientation and layout of units and associated impacts of balconies and the deletion of lift from Building FE.

1. Having considered the quantitative and qualitative changes, I do not consider the changes to the building design, apartment mix, number of dwellings and carparking spaces are such that the final built form, in terms of its scale, bulk, appearance or use would not be substantially the same as that approved under the consent, nor do I have sufficient evidence that the size/quality of the units as put by the council, were an essential element of the approved development. Accordingly, I find that the test in s 96(2)(a) is passed and it is now necessary to undertake a merit assessment of the application.

The merits

The LEP

1. The planners agree that that the objectives of the LEP are satisfied with the exception of objective 5(2)(d) which requires residential development

(d)   to ensure the protection and improvement of the amenity of residential areas.

1. Ms Bell contends that the revised development impacts on residential amenity in two aspects, being internal amenity and external amenity. She says that internal amenity has been compromised as not all units are provided with adequate solar amenity; there is loss of privacy from the living areas, particularly between buildings CD and FE and the units have impractical layouts i.e. inadequate kitchens, living areas and windows/ventilation to units. The latter considerations are based on expert architectural evidence provided by Mr Tayler.

1. In regard to external amenity, Ms Bell says that has been compromised through the provision of an additional basement parking level to cater for the additional 26 units; intensification of the site in terms of impacting on services such as waste removal; the additional eight units in building FE impact on the privacy of the neighbouring residential flat building in Flack Avenue and the orientation of the units' private open space (balcony) creates privacy impacts between buildings CD and FE. It was conceded that notification of the application did not attract any submissions, however, the issue of the inter-relationship of building FE and the adjoining residential flat building had been the subject of objections during notification of earlier applications. Further, it was agreed that the consent provided for balconies facing the adjoining property however Ms Bell distinguishes the impacts as the consent provided for balconies off bedrooms and the proposal is for balconies off living areas.

1. Mr Fletcher considers that the additional units will have negligible and acceptable impacts on the privacy of the adjoining residential flat building as he considers the separation is adequate, despite having been made aware that the internal layout of these adjoining units, in terms of the location of living and bedrooms, differed from that which he had originally considered.

1. In regard to the secondary objectives, Ms Bell says that the proposal does not provide high quality, energy efficient residential flat development as the internal and external amenity of the approved units has been compromised and adverse external impacts upon surrounding development in terms of traffic generation and privacy impacts both acoustic and visual has been created by the additional units. It is her view that the consent provided a high standard of internal amenity for occupants that is innovative in form and that the revised development does not. She says the proposal has significant solar access amenity concerns and that the application is an attempt to increases the yield of the development without purposely designing for that yield and does not provide adequate landscaping or open space areas for the proposal. Accordingly, she says that secondary objectives (a), (b), (c) and (f) are not met.

1. Mr Fletcher is of the view that, as required by clause 10(3) taking into account the secondary objectives, the development is consistent with those that are relevant. He notes that the site is not an "identified site" for the purpose of subclause (a) however considers the development of the site as proposed would satisfy the strategic intent of the clause based on the site history. He also says that secondary objectives (b) and (c) are satisfied as the redevelopment of the site will improve the quality of the residential amenity by providing improved landscaping and high quality design and, by doing so, will revitalise and improve part of an older established medium density residential area by redevelopment and improvement of an existing development. With regard to (f), he says that the development will satisfy this objective by way of compliance with the requirements of SEPP (Building Sustainability Index: BASIX) 2004 (BASIX). Further comment on this issue is provided in consideration of the DCP provisions.

The DCP

1. DCP35 and BDCDCP contain identical controls in relation to the minimum size of dwellings in residential flat buildings, as detailed in para 19 of this judgment. The experts agree that the floor areas of the units as proposed to not fully satisfy the minimum areas stipulated in DCP35 and acknowledge that these areas exceed those stipulated in the RFDC which, in accordance with the provisions of SEPP65, cannot be used as grounds for refusal of an application. Ms Bell calculates that only 35% of the units comply with DCP35 and sees the size of the units as an important justification for the council in allowing the original consent with the FSR significantly exceeding the control.

1. Both planners agree that the areas contained within the RFDC are met. Ms Bell considers that the failure to meet DCP35 minimum areas results in a development that has a significant loss of amenity in terms of solar access, unit layout, internal and external amenity than the approved development and therefore will not achieve a high quality of design. Mr Fletcher disagrees and notes that the council's Design Review Panel has considered the proposal and concluded that the proposed development was acceptable on amenity grounds. He says the spaces and facilities provide an appropriate and acceptable quality, standard of amenity and design.

1. Other relevant controls in DCP35 relate to energy efficiency, streetscape, facades, apartment layout, sizes and mix, balconies, solar access and overshadowing. Mr Fletcher concludes that the development, whilst not meeting the numerical requirements in relation to unit size and mix, is appropriate in its context, provides for acceptable levels of daylight access, energy efficiency and balcony space, will meet BASIX requirements and provide an appropriate built form in the streetscape. Ms Bell says the level of solar access is inadequate, the changes to the elevations of the building result in the loss of cohesion of the development as a whole that was a feature of the consent, the number of studio and one bedroom units is excessive at 31.4% when DCP35 caps these at 25% and that the unit layout is not of a high standard or incorporate flexibility to suit occupant's requirements.

1. Architectural evidence from Mr Buzacott for the applicant and Mr Tayler for the council was also provided, particularly with regard to the impact of the modifications on the amenity and quality of the units and building, its built form, solar access, visual and acoustical privacy and compliance with SEPP65 and the RFDC and the council's development control plans.

1. Mr Buzacott conceded that providing lifts for each two units, ensuites, laundries, large floor spaces and north facing, cross ventilated units were advantageous however, does not consider the design of the development to be inappropriate given its context, the fact that the proposal now provides a range and variety of units, more dwellings with oversight of communal and public spaces which he says, tends to generate a safer development with more usage of the site. Mr Tayler considers that the amenity provided as a result of the design changes proposed has been reduced, as has the internal amenity of individual units.

1. The architects disagreed on the appropriate standards for solar access, Mr Buzacott taking the view that the provisions of the RFDC for dense urban areas of 2 hours solar access in midwinter should apply however is of the opinion that 70% of the units do effectively achieve 3 hours. Mr Tayler considers the higher 3hour standard in DCP35 is more appropriate and that this should be achieved to the internal living and the balcony areas of each unit. He does not accept the conclusion that the provision of a skylight achieves the necessary standard for solar access, differentiating between the use of the term "daylight" in the RFDC to that of "sunlight", however does agree that more than 70 % of the units achieve the 2hour control.

1. Mr Tayler considers the relationship of living areas opposed to bedrooms as proposed results in unacceptable noise. Mr Buzacott concedes that there could be potential acoustic issues but considers in the context of the buildings, that the separation is acceptable.

1. Both architects agreed that the design of the development was satisfactory however Mr Tayler considered the consent provided a more desirable built form, particularly in relation to Buildings AB and CD which he described as "twins" however, agreed that the design was satisfactory. Mr Buzacott considers the modified elevations could be considered "siblings" and the changes made represent an improvement through "more conversation going on between the two buildings".

1. Valuation evidence was heard from Mr Dempsey on the basis of the Court allowing his expert report and determining the issue of weight that would be applied. Mr Hale for the council argued that the evidence should not be allowed as it was not the role of the Court to determine whether a development should make a profit or not. Mr Hemmings argued that the evidence is not relative to the issue of profit but goes towards whether the development represents an orderly or economic use of the land.

Conclusion and findings

1. Having found the development to be substantially the same development as that to which the consent has been granted, the merits assessment requires consideration of those matters under s 79C(1) of the Act relevant to the aspects of the development to which the application relates.

1. A major aspect of the council's case is that the consent provided for a superior form of development to that now proposed. This opinion is based of the size and orientation of the units. The evidence however did not extend to suggest that the standard of development as proposed was such that it was so poor that it warrants refusal, just that the original proposal was considered to be more desirable and of a higher quality. Mr Hale says that the development as modified would diminish or detract from the design quality of the development and accordingly is contrary to the provisions of c 115(1A)(c) of the Regulation. I cannot accept that this is the case as firstly, the clause requires a design verification statement in relation to the issue and this was included with the SoEE. Secondly, there is no evidence that the design quality is diminished, only that the size, layout and orientation of the units are different. There are many aspects of the design of a unit that can affect its design quality e.g. internal finishes. From the evidence provided, I am not satisfied that the changes proposed are such that the overall quality of the development has been diminished.

1. I consider that the development as modified would satisfy both the primary and secondary objectives of the LEP and also the objectives of DCP35 and is consistent with the Desired Future Character for the Hillsdale precinct.

1. I note that the size of the units does not comply with the minimum areas specified in both DCP35 and BDCDCP but also note that the areas are compliant with those areas included in SEPP65. I accept Ms Bell's evidence that council has consistently applied the minimum floor areas to those developments approved in the vicinity of the site with the exception of perhaps one in Bunnerong Road where one unit was below size. As SEPP65 is a relevant consideration pursuant to s97C and, prevails in the event of any inconsistency between environmental planning instruments (EPI), (noting the development control plans are not EPIs and that this is a modification and not a development application), I find that the areas proposed are satisfactory.

1. Whilst I accept the position that the consent provided for a considerably higher number of units with northern orientation, I note that in excess of 70% of units achieve the daylight access required by SEPP65 and consider that the development makes adequate allowance for solar access to satisfy the objectives of DCP35.

1. The unit mix does not accord to that required by DCP35 in that 31% of the units are studio or one bedroom, which exceeds the maximum of 25%. I have regard to this requirement and also to the considerations in Zhang v Canterbury City Council [2001] 115 LGERA 373 requiring that whilst not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process. Whilst not meeting the numerical requirements of DCP35, I am satisfied that the unit mix proposed satisfies the objectives of clause 3.3.2 and accordingly, consider that non-compliance with this particular clause does not warrant refusal of the application.

1. In relation to the orderly and economic use of the land, I make no findings based on the evidence of Mr Dempsey. It is not for the Court to determine whether the development will result in a positive financial outcome for the developer, such is not a consideration pursuant to s79C of the Act. I am however satisfied that the site is suitable for the development as required pursuant to the provisions of s 79(1)(c) and is not inconsistent with the Objects of the Act.

1. Having undertaken a merit assessment of those matters relevant to the modified application and concluding the development as modified would be substantially the same as the development for which consent was originally granted, I am satisfied that the amended proposal should be approved.

Orders

1. The Orders of the Court are:

(1)   The appeal is upheld;

(2)   Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate is modified as follows:

(a)   The approved development is: demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 102 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate;

(b)   Conditions of the consent as modified are contained in Annexure "A";

(3)   The exhibits, other than Exhibits D, H and 2 are returned.

Sue Morris

Commissioner of the Court

APPENDIX 1

Decision last updated: 20 May 2011