Mercury Resources Pty Ltd v Parramatta City Council

Case •

[2016] NSWLEC 1094

•

16 March 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Mercury Resources Pty Ltd v Parramatta City Council [2016] NSWLEC 1094
Hearing dates:22-24 February 2016
Date of orders: 16 March 2016
Decision date: 16 March 2016
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION: Mixed Use, height development standard, flooding, amenity, impacts to adjoining properties
Legislation Cited: Environmental Planning and Assessment Act 1979;
Parramatta Local Environmental Plan 2011;
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings
Texts Cited: Acid Sulphate Soils Manual; Parramatta Development Control Plan 2011; Residential Flat Design Code
Category:Principal judgment
Parties:

Mercury Resources Pty Ltd (Applicant)

  Parramatta City Council (Respondent)
Representation:

Counsel:
Ms S Duggan (Applicant)

  Solicitors:
Ms I Ferguson, Gadens (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):10451 of 2015

Judgment

  1. Mercury Resources Pty Limited (Mercury) lodged Development Application No 86/2015 with Parramatta City Council on 25 February 2015 seeking consent to demolish structures, tree removal and construct a seven storey mixed use building with basement car parking at 32 Tramway Avenue, Parramatta. The Council refused consent on 27 July 2015 and Mercury is appealing that determination.

The site and its context

  1. The site is an irregular mid-block allotment bisected by the concrete channel that constitutes Clay Cliff Creek and is located on the southern side of Tramway Avenue, an un-made road, the portion of which immediately adjoins the site currently used as a car park. The site has a frontage of 55.09m, an eastern boundary of 46.7m and a western boundary of 42.2 m with an overall site area of 2300m². It is currently vacant.

  2. The predominant pattern of development is a mix of hotel, club and residential development. Adjoining the site to the east is the Rosehill Bowling Club. The Mercure Hotel adjoins the site to the south with three detached dwellings to the west which front Arthur Street. Development on the northern side of Tramway Avenue is industrial.

  3. The council has recently approved a mixed use development at the corner of Hassall and Arthur Streets, to the south west of the site, Nos 125-129 Arthur Street (No125-129). That development, if built, would include two levels of basement parking, an overland flow area at street level with part four, six and seven storey residential units above. The highest section of the building is at its southern end (Hassall Street) at RL28 (lift overrun RL29) with the roof of the four storey element at the northern portion of the building at RL19 (parapet).

  4. The whole of the site lies to the north and east of No 125-129.

  5. The site is identified by the Council as being flood prone and is impacted by the one in 20 year, one in 100 year and PMF flood events. The flood impacts to the site are from two sources, one being the upstream catchment that flows into Clay Cliff Creek and the other the flooding of the Parramatta River that travels up that creek. The latter has more severe impacts in flood events. The parties agree the whole of the site is in the high flood risk precinct despite Council mapping from various documents indicating that part of it may be within a medium risk precinct however it is agreed that that section of Arthur Street that would be required or off-site access to a flood free area is within the high risk precinct.

Background and the proposal

  1. The development application as determined by the Council proposed the construction of a seven storey mixed use development consisting of four retail/commercial tenancies and 61 residential apartment with a two level basement carpark containing 75 residential spaces, 15 visitor parking spaces and 10 bicycles spaces. The development was designed to include an overflow level for flood storage.

  2. Vehicular access to the site proposed by a ramp which would run along the western side of the site and would be accessed by constructing part of Tramway Avenue. That ramp includes an elevated section and a flood proof door and barrier which would be activated in a flood event. A series of ramps and stairs would provide access to the proposed retail areas and the entry lobby to the residential component of the development which are elevated due to the floodplain nature of the site.

  3. The building proposed was to be erected adjacent to the southern property boundary and, according to the evidence, 1 m to the west of the drainage channel which is contained within a stratum easement in favour of Sydney Water. Whilst clear of that easement, part of the building would be cantilevered above the channel.

  4. The elevated ground floor would contain 4 shops and 7 apartments with level 1 to 3 erected above that building structure, each level containing an additional 11 apartments. Levels 4 to 6 are in an elliptical shape and run along the eastern side of the lower buildings in a generally north east to south west configurations with each level comprising seven apartment. On level 4, access from the corridor was to be provided to communal open space that was to also act as a vertical evacuation area in the event of flooding.

  5. During the hearing, the applicant sought and was granted leave to rely on amended plans subject to payment of the council’s costs thrown away as agreed for assessed pursuant to the provisions of section 97B of the Environmental Planning and Assessment Act 1979.

  6. Those amended plans, Exhibit K, reduce the size of the basements, increase the setback from the southern boundary on the ground, first, second and third levels to 3m through the reduction in number of units on each level and the decrease the length of the elliptical element of the building at levels 4, 5 and 6 so that a setback of 4.5m is provided. The consequence of those changes is that the building now provides parking for 81 cars, of which 13 are nominated as visitor parking, 4 for the commercial space and the remainder allocated as resident parking. 18 bike spaces are also provided on the upper basement level.

  7. The residential component contains a total of 54 apartments of which one is a studio, 4 are one bedroom, 7 include one bedroom plus a study, 29 contain two bedrooms, and 13 contain two bedrooms plus a study. The plans indicate what was originally nominated as retail space is now shown as commercial.

  8. The building is erected to the Tramway Avenue property boundary with a small awning extending into the roadway. The front portion of the building is erected to the western property boundaries with the stormwater channel separating the building from its eastern boundary with the Bowling Club.

  9. The commercial spaces and ground level unit are shown as being constructed at RL5.9. The height of the roof above the driveway and of those units above that area is RL17.8 and the area over the commercial space and those units above is RL 18.7. The height of the roof of the elliptical element is shown at RL28.

The planning controls

  1. The site is zoned B4 Mixed Use under the provisions of Parramatta Local Environmental Plan 2011 (LEP). The proposed development is permissible with consent in that zone.

  2. Clause 2(3) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the B4 zone are:

•    To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To encourage development that contributes to an active, vibrant and sustainable neighbourhood.

• To create opportunities to improve the public domain and pedestrian links.

• To support the higher order Zone B3 Commercial Core while providing for the daily commercial needs of the locality.

• To protect and enhance the unique qualities and character of special areas within the Parramatta City Centre.

  1. Part 4 of the LEP contains Principal development standards with clause 4.3 Height of buildings establishing a maximum building height for the site at RL14. There is no floor space ratio applying to the site. Clause 4.6 provide for exceptions to development standards and, because the proposed to building height exceeds the standard, the applicant relies on this clause.

  2. Clause 6.1 Acid sulphate soils is in the following form:

(1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

Class of land      Works

1            Any works.

2            Works below the natural ground surface.

Works by which the watertable is likely to be lowered.

          3             Works more than 1 metre below the natural ground surface.

                         Works by which the watertable is likely to be lowered more than 1 metre below the natural ground surface.

         4              Works more than 2 metres below the natural ground surface.

Works by which the watertable is likely to be lowered more than 2 metres below the natural ground surface.

         5              Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is                                          likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

(3) Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manualand has been provided to the consent authority.

(4) Despite subclause (2), development consent is not required under this clause for the carrying out of works if:

(a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and

(b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.

(5) Despite subclause (2), development consent is not required under this clause for the carrying out of any of the following works by a public authority (including ancillary work such as excavation, construction of access ways or the supply of power):

(a) emergency work, being the repair or replacement of the works of the public authority required to be carried out urgently because the works have been damaged, have ceased to function or pose a risk to the environment or to public health and safety,

(b) routine maintenance work, being the periodic inspection, cleaning, repair or replacement of the works of the public authority (other than work that involves the disturbance of more than 1 tonne of soil),

(c) minor work, being work that costs less than $20,000 (other than drainage work).

(6) Despite subclause (2), development consent is not required under this clause to carry out any works if:

(a) the works involve the disturbance of less than 1 tonne of soil, and

(b) the works are not likely to lower the watertable.

  1. The site is identified as Class 4 on the Acid Sulphate Soils Map and, because the development involves works more than 2 m below the natural ground surface, consent cannot be granted unless an acid sulphate soils management plan has been prepared for the proposed works in accordance with the Acid Sulphate Soils Manual.

  2. The necessary management plan had not been prepared by the applicant and because the preparation of such a plan is a threshold issue, Ms Duggan, for the applicant, requested that, should the Court find in favour of her clients, they be provided with an opportunity to prepare such a plan to allow for consent to be granted. Mr Seton, for the Council, did not oppose this course of action.

  3. Clause 6.3 of the LEP applies to Flood planning and is in the following form:

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

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c) to avoid significant adverse impacts on flood behaviour and the environment.

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published in 2005 by the NSW Government, unless it is otherwise defined in this clause.

(5) In this clause:

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

  1. The above clauses are particularly relevant to the contentions in the case and those other relevant provisions of the LEP are listed in the Council’s Statement of Facts and Contentions, exhibit 2.

  2. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP65) and the associated Residential Flat Design Code (RFDC) are also relevant to the determination of the application as are the other planning instruments listed in Exhibit 2 however not relevant to the contentions in the case.

  3. Parramatta Development Control Plan 2011 (DCP) applies to the site with Parts 1, 2, 3 and 5 particularly relevant to the case.

The issues

  1. The contentions in the case are detailed in Exhibit 2 however contention 20 which relates to view corridors is not press and those parts of contention 23 other than the requirement for the Acid Sulphate Soils Management Plan could be addressed by conditions of consent. In summary the primary contentions relate to whether the height of the proposed building and the offsite impacts that result from that additional height are acceptable, its bulk and scale, character and amenity is appropriate and whether the proposed shelter in place is an appropriate strategy during a flood event. A number of the contentions were also resolved through the submission of the amended plans.

  2. In addition to the matters raised by the Council, a contention that reflects the requirements outlined in the submission to the council from Sydney Water Corporation was included however the Council did not press that contention other than to note it. In correspondence dated 29 May 2015 and repeated in a letter of 18 November 2015 in response to amended plans Sydney Water states:

Sydney Water’s guidelines for constructing buildings over or adjacent to stormwater assets outline the process and design requirements for such activities. As per the guidelines, the applicant is advised of the following:

● no building or permanent structure is to be constructed within 1 m from the outside wall of the stormwater asset. Permanent structures include (but are not limited to) basement car parks, hanging balconies, roof eaves, hanging stairs, stormwater pits, stormwater pipes. This clearance requirement would apply for unlimited depth and height.

● The submitted details appear that there are building structures within 1 m from the outside face of the stormwater channel.

● The proponent is required to revise the proposal to ensure that no building or permanent structure are proposed within 1 m from the outside face of the stormwater channel.

  1. The channel referred to in the correspondence is, according to the applicant’s evidence, wholly contained within a stratum easement limited in height to RL4. The plans provide for the building to be setback 1.08m from the edge of the easement and 1.67m above the stratum where the building is cantilevered over the channel. Accordingly there is no encroachment of the building within the easement and it is for that reason that the Council made no further comments in relation to the issue.

  2. The Court notes that adjacent development (Mercure Hotel) has also been built above the channel.

The evidence

  1. The hearing commenced on site with evidence heard from objectors to the proposal. The first was a representative of the future owners of the Mercure Hotel who have contracted to purchase the site on a delayed settlement basis. The main concern of the representatives was the proximity of the proposed building on the common boundary of the hotel and the impact that building may have on any future redevelopment plans for the hotel site. The view included observation of the site from the hotel premises including the swimming pool and tennis courts areas.

  2. Representatives of the Rosehill Bowling Club and Australian Turf Club, which have a contractual arrangement with the bowling club, also provided evidence on the bowling club site. They were concerned particularly about the shadow impact of the proposed building on the bowling green and whether that shadow would result in increased maintenance costs for the club through disease and if that maintenance cost would affect the ongoing viability of the club.

Traffic

  1. Expert traffic evidence had been provided in the form of a joint report, Exhibit 5 however, due to the agreement between those experts and the acceptance of draft consent conditions by the applicant, those experts were not required for cross examination.

The turf

  1. Mr D Worrad, an Agronomist, provided evidence in relation to the shadow impacts of the proposed development on the bowling green surfaces and says the over shading will have very limited to no impact on to quality of the turf at that site because the shading from the proposed structure only impacts the bowls surfaces to a significant extent in June when the greens are dormant and the shadow diagrams indicate that all turf surfaces will receive seven hours sunlight at that time. He says the worst case scenario may be a small reduction in coverage along the western edge of the south west green in June/July if weather conditions are cold and wet for an extended period however, he estimates that the increased in maintenance cost would be no more than around $100 that would need to be spent on fungicides.

Flooding

  1. Expert evidence in relation to flooding was provided by Dr B Philips for the applicant and Mr D Bewsher for the Council. They agree that the Council mapping identifies the site within different risk categories with the 2005 SKM study mapping the entire site in the high flood risk precinct and the 2013 study mapped part of the site as a provisional medium risk precinct. The 2015 Cardno assessment mapped almost the entire development footprint as medium risk precinct.

  2. For the purposes of the Court’s assessment of the application, Ms Duggan accepted the site should be wholly assessed as being within the high risk precinct.

  3. The experts agree that safe egress or rescue access by Arthur Street or Tramway Avenue will be governed by the nature of flooding at the time and egress and access will be possible in some flood events and not in other (more extreme) floods. They have considered the applicant’s draft Flood Emergency Detailed Response Plan (prepared by Dr Phillips) and agree that it proposes that evacuees who aren’t residents could take refuge in the publically accessible corridors on levels one, two, three, four, five and six and with special controls the lift can be configured to continue to operate until any ingress of flood waters into the lift shaft is detected. This would facilitate the vertical evacuation of any frail, elderly, infirm and disabled occupants who may be within the basement car parking levels at the time any evacuation is triggered by the flood warning system. Only when the lift becomes inoperable would there be a need to use the stairs.

  1. Mr Bewsher says the high flood risk precinct means the proposed land use is “unsuitable” under the DCP however this does not mean that the use is prohibited. Development can still occur if ameliorative measures are introduced to ensure the objectives of the DCP are achieved however for most sites it would be difficult to develop the majority of the high areas unless filling can be used to eliminate the high classification which, for the subject site is not possible due to the evacuation constraints.

  2. The experts agree that it would be necessary for residents, tenants of the retail/commercial areas and visitors to stay on site for approximately 2 hours in the one in 100 year flood event and around six hours at the PMF event. Similarly, this would mean that persons would be unable to access their properties for similar periods in the event that they were not on site at the commencement of a flood event and when access was denied. A warning time of only 2 hours is available if Clay Cliff Creek causes the flood event whereas around 9 hours warning is available for the more significant event caused from the upstream impacts of the Parramatta River in flood.

  3. Consent conditions relating to the provision of rock anchors and the increased height of the floodgate address some of the concerns Mr Bewsher had in relation to the basement area.

  4. Mr Bewsher says the risks to property on the site are appropriately managed through the proposed floor levels, basement floodgate, flood doors and other measures to seal the building from the ingress of flood waters. As the site is vacant he says the proposed development must increase the burden on emergency services under conditions of when the site becomes isolated by floodwaters and because ambulance access would not be possible in major flood events, the only means of evacuation would be by way of helicopter or boat. Even though he says the risk is not unacceptable, he considers that it is appropriate that this increased burdened and the consequential increase in risk to the lives of those isolated and the emergency services personnel tasked with assisting them, must be considered as part of strategic flood risk management assessment for the Clay Cliff Creek floodplain.

  5. Whilst he advises the Council has recognised the need for such an assessment, he was unable to provide the Court with any details of the likely timing of such work. Dr Phillips accepted that the impacts of this development were no different to similar developments which have been approved nearby to the site and all of those developments rely on “shelter in place” during major flood events. Mr Bewsher accepted shelter in place could be an appropriate option if endorsed by the strategic risk management assessment.

  6. During the hearing the experts undertook and assessment of the impact of fill on the land that varied from survey data used in flood modelling and prepared further modelling in relation to what would be an appropriate height for the top of the basement parking level slab. They agree that the roof of the basement carpark should be lowered by 150 mm from that shown on the exhibit K plans to compensate for the loss of flood storage resulting from the proposed building. The architect advises that the necessary adjustments to the length of the ramps within the basement to compensate for the change in levels.

  7. The applicant proposed additional measures to be incorporated into the Response Plan including having flood wardens on-site trained in first aid and the use of a battery operated defibrillator, provision of a back-up power system and inclusion of water level sensors in the lift to ensure it remains operational but does not lower into floodwaters. Mr Bewsher agreed that if everyone followed the Response Plan they would be dry within the building or stopped before returning, the building is designed to withstand floodwaters, that residents could be educated in the flood risk and procedures, the emergency generator would largely address the risk of fire and the training of persons in first aid and the operation of the defibrillator would reduce the risk to life in a flood event. He remained concerned however of the likelihood of persons doing strange things during a flood and that because the SES would be unable to access the site through the High Hazard waters, this would increase the risk to life in a flood event.

Urban Design and Planning

  1. Expert Urban Design evidence was heard from Mr A Cadogan (applicant) and Mr H Levine (council) with Mr S Harding (applicant) and Mr S Chong (council) providing expert town planning evidence. Their evidence was heard concurrently. Mr C Grayson, a landscape architect for the applicant had also co-authored the joint report and was not required for cross examination.

Building Height – The clause 4.6 objection

  1. The maximum building height applicable to the site under the LEP is RL14. That height control applies to the land to the east of the site to James Ruse Drive and north to the Parramatta River. To the north west of the site immediately adjacent to the river are 2 sites with individual height standards, one being 37m and the other 40m. The remainder of the land to the north, west and south of the site including on the opposite side of Hassall Street is within the RL14 area. This includes the whole of the industrial land to the north and the R2 zoned land to the west.

  2. The existing ground levels of the site are around RL 4.5 ranging from RL4.01 to RL5 in the centre of the site according to the surveys provided in Exhibit E and therefore provides for a building of approximately 9.5- 10m in height. The top of the lift overrun is at RL29.15 and the roof level is at RL28 so the building height is some 23-23.5m.

  3. The development therefore exceeds the building height development standard and the applicant relies on the provision of clause 4.6 to vary that standard.

  4. Mr Harding is the author of the clause 4.6 objection which has been updated to reflect the plans before the Court (Exhibit H). Whilst some of the figures included in the written objection have overestimated how the built form that a complaint building meeting be RL14 height control would appear within the locality and the proposed building has not been moved away from the boundary, the figures do provide a guide of the context of the proposed building.

  5. In his written objection, Mr Harding says the figures demonstrate that the additional elliptical shape plays little role, if any, in a transition. Notwithstanding, he says the diagrams demonstrate that the surrounding allowable height limits would result in a built form that generally screens the additional three storeys from the public domain. The form will not be readily visible from surrounding areas and the height standard does not change within the immediate vicinity of the site. He says the building form also reduces the facade that sits closer to the Mercure Hotel site. In view of a conventional zero setback, the elliptic shape allows greater views around the top of the building (in deference to a longer expanse of building on the boundary as generally allowed for in the mixed use zone). The objectives relating to transition outlined in the objectives for the height control do not appear to apply to the flat line approach to the height in the immediate area of the subject site. The height map indicates that the development of future land to the north of the site can also take a height and form of at least four storeys. As a result, there is no apparent transition foreshadowed in the planning controls. Notwithstanding, the proposed height of buildings, relative to the RL14 height to the north, does provide a transition from the Mercure, to the proposal and then beyond.

  6. In his analysis of the requirements of clause 4.6 of the LEP, Mr Harding has regard to whether compliance the development standard is unreasonable or unnecessary in the circumstances of the case and considers whether the proposal remains consistent with the objectives of the B4 Mixed Use zone, despite the non-compliance with the height control. He assesses the development against each relevant objective and says the proposed building does not result in a land use conflict between the existing and proposed land uses that include the approved residential apartments at No 125-129 and the nine storey hotel development to the south. The siting and design of the building in particular has had regard to the protection of the historical view corridors, views and vistas from the site and the adjoining Mercure Hotel and the potential impact any form a numerical compliant development might have on the amenity of adjoining development.

  7. He says the site is well located with access to public transport options such as bus services, heavy rail and potentially light rail and these facilities will provide access to services and employment opportunities within Parramatta and the wider metropolitan area beyond.

  8. Mr Harding says the development provides higher density accommodation as well as retail/commercial opportunities in a location that is both well serviced and in close proximity to an existing neighbourhood shopping centre. The provision of residential accommodation and small-scale retail/commercial floor space in the location will support the existing services and contribute to the retention and viability of the services which in turn contributes to the prosperity and viability of the local neighbourhood.

  9. Having regard to the objectives of the building height development standard he says the proposed building height will provide a transition in the built form and land use intensity within the surrounding area, providing a better planning outcome in terms of bulk and scale than that envisioned by Council. Conversely, a proposal that strictly complied with the numerical building height standard would not necessarily be in keeping with either the existing character of the area or the desired future character. In this regard the existing character of the local area contains a significant contrast in the built form, ranging from the nine storey Mercure Hotel on the site’s southern boundary to the one and two storey dwellings along Arthur Street and sawtooth industrial buildings along Arthur Street to the north of the site, which are approximately 7m in height.

  10. The proposal at its closest point to be detached dwellings along Arthur Street provides for a four-storey building which is not unsympathetic to the existing one and two storey dwellings, given the offset building separation and setbacks proposed. He anticipates those dwellings would be replaced with a four storey mixed use development consistent with the B4 zone. The proposed building provides a transition in height between the development it adjoins within the street block within which it is located with the elliptical tower element providing a step down in comparison to the Mercure Hotel with an even greater drop over much of the remainder of the footprint of the building to RL17.2 and RL18 at Tramway Avenue.

  11. Mr Harding makes reference to a Visual Impact Assessment, Urban Design Assessment and shadow diagrams that has been prepared in support of the application and notes that these reports conclude that the proposal will not impact on the historic view corridors. The Council does not contest this fact.

  12. In terms of overshadowing he says the shadows cast by that part of the building which lies above the building height limit will not result in unacceptable loss of solar access during either midwinter or during the summer solstice to the adjoining residences located to the west on Arthur Street. The deliberate orientation and slender, elliptical shape of the proposed tower means that the shadows cast by the adjoining Mercure Hotel "absorbs" much of the potential impact, due to its proximity, height and massing in relation to the nearby dwellings.

  13. He says the shading assessment on the Rosehill Bowling Club greens also demonstrates that the shadows cast by the proposal during midwinter, summer, autumn and spring will be within acceptable limits and will not result in any significant adverse loss of amenity or functional use of the green. The proposal will also maintain adequate levels of privacy to existing adjoining development due to its siting, orientation, positioning of larger balconies on the eastern side of the tower and use of devices such as privacy screens and landscaping and the retention of significant existing trees on the adjoining property. The design of the building has been specifically oriented to eliminate any direct overlooking of the adjoining residential properties or the rumours of the Mercure Hotel. While a small portion of the western and southern elevations are within the required building setback, the proposal offers significantly larger setbacks in the south western corner of the development as an offset. A built form that numerically complied with the height control would however need to avail itself of the minimum building setbacks which would ultimately result in a compliant solution being much closer to the adjoining properties for a much greater portion of the building.

  14. The site does adjoin any heritage items and will not adversely impact on the setting or heritage values of Elizabeth Farmhouse or the reserve surrounding it nor does it cause view loss or blocking effects in respect to historic view corridors 6 and 11 identified in the DCP. Consequentially, as concluded in the statement of heritage impact that accompanied the application, Mr Harding accepts that the development has a minor and acceptable impact upon the heritage significance of the former Female Orphan's School (now UWS) and Elizabeth Farm and says it will not adversely impact on the historic views, noting that despite the proposal not complying numerically with the height standard, neither component of the building would appear to be visible within the composition of those corridors. Further, in the context of the approved development at No125-129 any views over the site from Elizabeth Farmhouse or the reserve surrounding it would be very limited to the space between the nine storey Mercure Hotel tower and the approved seven storey residential flat building.

  15. Because the site and adjoining land is zoned B4 Mixed Use and is not a low density residential area, Mr Harding concludes that strict numerical compliance with the height standard would be unreasonable on the basis that the proposed development achieves compliance with the objectives of the standard. Further, he says the proposal is compatible with both adjoining development and the desired future character of the surrounding area.

  16. He has also considered whether compliance would hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&AAct and concludes that it would not. He says these objects are to encourage development that promotes the social and economic welfare of the community and a better environment and to promote and coordinate orderly and economic use and development of the land. In terms of strict compliance with the development standard, this would not result in any discernible benefits to the amenity of adjoining sites or the public. Further, the proposal satisfies the underlying objectives of both the zone and the development standard, and provides a transition in scale of development is compatible with the existing development in the locality and is also consistent with the desired future character of the area. Therefore he concludes the proposal is consistent with the provisions of orderly and economic development and strict compliance with the standard is not required in order to achieve compliance with the objectives.

  17. He then considers whether a development that strictly complies with the development standard is unreasonable or unnecessary in this circumstances of the case and says that strict compliance would lead to a development of the site that is out of context with the development in the locality and the development merging in the locality. The non-compliance with the height limit provides a transition in building height when viewed from the public domain or surrounding development, while also grouping existing and approved buildings of a similar or larger scale and height within close proximity to each other. The difference in the extent of impact between a development that achieves strict numerical compliance would not alter the overshadowing, privacy or acoustic impacts on adjoining properties and these impacts have been demonstrated to be negligible. The visual impact provides an appropriate transition between the Mercure Hotel, the approved development at Nos 125-129 and the residential development to the west of the site.

  18. In the circumstances of the case, Mr Harding says there are sufficient environmental planning grounds to justify the variation of the development standard. That is because he says the proposal satisfies the objectives of the B4 zone and the objectives of the building height standard as described above; the non-compliance with the building height standard does not contribute to adverse environmental impacts in terms of overshadowing, visual impacts or view loss; the proposal provides a building form and scale which acts as a transition in the height and scale of surrounding existing development with no adverse amenity impacts surrounding development particularly in relation to solar access and views. The non-compliance with the standard does not result in a scale of building that is out of character with the surrounding development and the development as proposed is consistent with the provision of orderly and economic development.

  19. For these reasons he concludes that the proposed variation is well founded and compliance with the standard is unreasonable and unnecessary in the circumstances of the case. The proposal provides for a smaller building footprint than would normally be pursued on such site. The presence of Clay Cliff Creek has required a smaller footprint than the site area allowance which in turn has resulted in a tall building. This outcome provides better than usual common open space provision and also provides a more interesting interface with Clay Cliff Creek. The increased height has in turn allowed for additional creativity in the design solution rather than squashing a building down to a modest height consequentially allowing better than usual solar access and the design of overall form that distinguishes the building from other development in the area. In his opinion the additional height achieves a better environmental outcome compared with a more traditional shape provided in a lower built form.

Built form - height

  1. The planning and urban design experts agree, having regard to the existing Mercure Hotel, that has a building height at RL39.65 (lift and plant rooms) and RL34.9 (roof parapet), that merit exists for a variation to building height however the extent of variation is not agreed. They also are at odds as to whether the proposed building should and does, provide an appropriate “transition” in the context of surrounding development.

  2. They agree that the underlying objectives of the “RL” based height standard is related to the view lines from and to James Ruse Farm, an nearby heritage item and that sight lines are not an issue in this matter having regard to development in the precinct that has taken place or has been approved.

  3. Mr Harding considers the height limit is no longer of much utility, and defers to the urban designers to explore the extent to which the building might vary from the height development standard. He says the application of the standard has varied across the precinct demonstrating that a merit-based approach to the height is acceptable. On the site, the principal of re-allocation of GFA to a taller form is supported by the extent to which the building footprint is reduced because, without a FSR control, a building could be built across the whole of the site to a height of RL14. He concludes that given the existing and likely development in the area, the proposed height is satisfactory.

  1. Mr Chong notes the approval for No125-129 was premised on providing building transition from the Mercure Hotel in a 'step down' height in a linear fashion arriving at maximum four storeys to the rear to the north of that site. He anticipates the following type of development and built form that would occur in the immediate context of the surrounding area:

  • IN1 General Industrial (north) - large isolated building, light industrial complex, factory buildings with large hardstand areas;

  • B4 Mixed Use (immediate west) - mixed use development, residential apartment development;

  • R2 Low Density Residential (west along Arthur Street) - two storey dual occupancy, dwelling houses, child-care centres.

  1. With respect to the immediate context and the anticipated type of development in the zone, he considered that the B4 Mixed Use zone which applies to the subject site is at a higher order in respect to the built form hierarchy and as such, the building height of development on the land needs to finalise its context at the zoning periphery having regard to incongruent built form of the adjoining land use zones. Whilst he supports a variation to building height he says it is important to have regard to the context of the site and its surrounds, building transition being a fundamental factor in arriving at an appropriate built form and building height. The proposed building in its current form has not appropriately considered a building transition relative to its site and surrounds and as such, the height of the proposed building is not suitable for the site. Whilst he notes that sites throughout the locality have varied building heights, these developments were considered on merit including context, transition, built form and location. He accepts that the transition may not necessarily occur at the zone boundary and could extent to adjoining zones such as the industrial zone.

  2. Mr Levine does not agree that the approved building at No 125-129 illustrates Council's vision for the desired future character of the local area. The increase in height approved at that site is well founded in urban design terms but there is no equivalent argument to be made for an increase in height on the subject site. That site is a corner site directly adjacent to the Mercure Hotel on Hassall Street. The building profile as approved performs an intelligent role as a transitional building, mediating and stitching together the existing out of scale hotel with the permissible heights on Arthur Street. The approved profile steps down around the corner from the hotel to the lower adjacent B4 zoned site on Arthur Street, which in turn will transition to what will likely be the lower forms of the R2 zone across Arthur Street. All of this is in the context of a corner site highly visible from the public domain.

  3. The contextual characteristics of the site are not comparable with No 125-129. It is not immediately adjacent to the high Mercure Hotel building on a visible corner site, and has no direct relationship with No 125-129. Therefore it is not considered necessary or appropriate that a building on the site should act as a transition between the existing hotel and the lower permissible heights in the adjacent context.

  4. Mr Cadogan says one of the realities of the context is the Mercure Hotel, which is effectively 10 storeys in height including the lift overrun. In urban design terms, he says there is merit in the other buildings occupying the same block mediating between this tall form and the otherwise prevailing height of 14m which can be expected in surrounding blocks to the west and north. This is consistent with the approach that Council has taken in relation to its approval of the seven storey form on the opposite corner of the block. The proposal successfully achieves that transition in form, by establishing a built form which is a consistent four storey street wall frontage (which achieves good compatibility with the RL14 height) and a tower behind which adds a further three storeys, providing an effective transition between the Mercure Hotel tower and anticipated development on sites to the north.

Bulk and scale

  1. In the absence of a floor space ratio control for the site, there is no agreement between the experts on the appropriate bulk and scale of the development.

  2. Mr Chong, having regard to the B4 Mixed Use zoning of the site together with the development standards which apply to the land says development contemplated for the immediate area is a built form with a maximum 3 to 4 storeys with appropriate building setbacks and separation, complemented with landscaped areas. He says the height and scale of the proposed development is not appropriate to its context as it has not achieved a suitable building transition to the zoning periphery. Whilst he agrees the building height limitation, in particular those imposed to protect important heritage view lines, is not applicable for the site however says the value of the view corridors and the significance of the site needs to be observed and therefore the building height of the surrounding area, particularly those within the view shed are to be maintained. The lack of consideration of context has led to poor design outcomes relating to minimal building setbacks to adjoining properties as well those adverse overshadowing to adjoining properties, most notably to the east relating to land at the Rosehill Bowling Club. Mr Chong did accept the amendments made to the plans to increase the setback of the building from the boundary with the Mercure Hotel were acceptable however maintained that the bulk and scale of the proposed development is unjustified having regard to the adverse impact on adjoining properties.

  3. Mr Harding says that the absence of the FSR control, density is not a core consideration of the application and the contention pertains to the height and building separation.

  4. Mr Cadogan says the bulk and scale of the proposal is appropriate to its context and is satisfactory. He reiterates opinion about the development achieving an appropriate transition in built form between the hotel tower and the existing and likely future development to the north and west, establishing a satisfactory scale relationship. In terms of the bulk, he says the arrangement of the built form on the site has been generally distributed in a manner that reduces impacts. For instance, if the proposal had included building over the canal and closer to the eastern boundary at the height of RL14, overshadowing and view impacts would be generally similar or potentially greater than those of the current proposal notwithstanding its greater height. The issue of bulk also relates to the appropriateness of the proposal in relation to the existing and likely future character. This character is dominated by the Mercure Hotel, which together with the approved development on the southwest corner of the block will significantly increase the amount of built form on that block. These two buildings have a substantial bulk above the current height control, with substantial building towers, and together these establish a new context. Existing single-storey development currently exists to the west of the site, however the planning controls anticipate a future character of around four storeys on the site over time. The anticipated construction of the light rail along the appropriately named Tramway Avenue will also, if approved intensify the use of the area. The proposed development has responded to these issues establishing an appropriate activated street wall along Tramway Avenue, providing common open space on the eastern side of the canal which runs through the site and proposing a tower form that is setback from the Street frontage. The lower four storey street wall 'podium' form provides a consistent element on the site frontages that is in harmony with the likely future form of development anticipated in the block and the surrounding area.

  5. Mr Levine says the proposal, with no side and minimal rear setbacks has too large a footprint on the site. In addition, the height proposed, far in excess of the control, is not considered to be reasonably justified. The building envelope is too large, both horizontally and vertically, to satisfy necessary amenity standards and contextual fit.

  6. He says there is no confirmation of a light rail corridor along Tramway Avenue at this point of time. Notwithstanding, it is considered the ground floor commercial space along Tramway Avenue, which is grade separated from the footpath level, would not provide effective activation to the street.

Character

  1. The experts agree that the character of the precinct is evolving and that there have been a number of variations to building height in recent approvals by Council. They agree that there have been a variety of reasons as to why variations to the height standard have been pursued in the locality surrounding the site, including the prospect of light rail.

  2. Mr Cadogan says, in relation to height, bulk and scale, the building achieves an appropriate fit with its context. The character of the block is changing with the approved development at No 125-129 together with the existing Mercure Hotel establishing a much greater urban density and significantly increasing the amount of built form on the block. The proposed development's 'podium' element has a consistent street wall frontage establishing a built form with a scale and height that will relate well to the anticipated development in the surrounding land and which will reinforce and complement the anticipated future character of Tramway Avenue. In relation to the interface with the adjacent bowling club to the east, the development establishes a frontage to the canal that runs through the site with a significant setback far greater than would be typically envisaged by the planning controls and is an appropriate interface. The orientation of the site means that there are no shadow impacts in the morning arising from the proposed development and should the club be developed at some future time, the proposed development is arranged in such a way as to provide satisfactory solar access and amenity.

  3. Mr Levine says the proposed development has not suitably considered its context in respect to its siting relative to the zoning interface and anticipated type of development that would be contemplated for surrounding land. The lack of building transition would lead to visual confusion of the built form associated with the adjoining zones which anticipates lower scale buildings. He says the building at the corner (No125-129) would perform a well-reasoned proposal stitching together a very high building (The Mercure) and stepping down around the corner to almost soften the hotel. The site is a fair way away and no argument exists for the site to transition in the same way. If the Mercure site was to redevelop that site provides a long way in which to transition itself. He does not consider the site plays any role to transition down.

  4. Mr Harding says that there is nothing in the planning controls that requires a transition from the site to adjoining sites. It is appropriate to look at the context so that the buildings marry in as the B4 zone applies to the whole of the street block.

  5. Mr Chong says the development approved at No125-129 is a very different context and more a gateway development, an interface with the R2 zone across Hassall Street and therefore provides a transition from the Mercure building. He says the site, being further away from the R2 zone seeks to transition again and pick up 7 storeys when the Arthur Street building is down to 4 at the northern end. He acknowledged that it would be possible for development in the Industrial zone to the north to further transition to the RL14 height.

Building separation

  1. The experts agree that the amended plans which provide for the 3m and 4.5m setbacks from the southern property boundary are acceptable as there are no windows to habitable rooms within the southern elevation. Where there are windows, these are oriented to the side and balcony areas incorporate privacy screens address any potential visual privacy impacts.

  2. All experts agreed that the purpose of the setbacks was to address both visual and acoustic privacy and say that the reduced setbacks would also be sufficient to address acoustic issues from any development that may take place on the Mercure site in the future given the orientation of the bedroom windows.

  3. They also agree that it is reasonable to assume a street wall type development in relation to future development of 137 Arthur Street on the western boundary.

Access/Overshadowing

  1. Dr S King had prepared an overshadowing and dollar access report (Tab 3, Exhibit 3) which accompanied the application. That report included details of the shadow impact from poles at RL14 at the corners of the site.

  2. Mr Harding considered the impact of shadowing from the proposed development with those height poles from what he says would be a complying development built to the boundaries of the site and across the channels and says the impact is better as the proposal provides for a smaller, thinner building that moves the shadow more quickly across adjoining sites. He says the difference in impacts is marginal.

  3. Mr Levine says the lack of consideration of context has led to poor design outcomes relating to minimal building setbacks to adjoining properties as well as adverse overshadowing impacts on the Rosehill Bowling Club. Whilst he accepts the evidence of Mr Worrad in respect to turf, he says the extent of the height, bulk and scale of the proposal is excessive having regard to the lack of consideration of its context and its surrounds with the extent of overshadowing diminishing the amenity currently enjoyed by the bowling greens and its patrons which will adversely impact on the enjoyment of that land. He does not consider it would be likely that a building would occupy the entire length of the boundary with the Bowling Club and that a 6m setback would be more likely and therefore at RL14 the impact on the adjoining site would be more favourable than that proposed, even allowing for the increased rear setback.

  4. Mr Cadogan says the impacts of overshadowing are acceptable taking into account the rooftop communal open space has good solar access particularly in the afternoons with the rear communal open space achieving some solar access in the early afternoon. He agrees that setting a building that complied with the height development standard would reduce the shadow impact.

  5. Mr Chong agrees that a RL14 building if it were to observe the setbacks recommended in the RFDC, would have a significant impact on reducing shadow impacts and there would be a marginal difference if built to the boundary.

Open Space

  1. The DCP requires an area of communal private open space of 10sqm with a 2.5m minimum dimension for each dwelling. The amended plans provide for a total of 54 units and therefore 540sqm of open space is required. The provision of the 3m rear setback increases the area of landscaping available on site.

  2. Mr Grayson says the rooftop communal open space should include structure for the provision of shade, fixed outdoor furniture, barbecue facilities, a sink and an all access toilet to better serve the needs of the future residents. He says there is a strong relationship to Tramway Avenue utilising glass balustrade and deck located on the northern side of the building. As Tramway Avenue transforms into an active streetscape the future resident will have a visual connection and interaction to the street. The proposal includes intimate spaces and more interactive and social spaces positioned to promotes fellow resident engagement with the variety of spaces appealing to a wide demographic.

  3. Mr Chong says that the lack of justification for height together with no applicable FSR has led to a development with excessive bulk. It is not a corner site as suggested by Mr Harding and therefore has no interface with a primary and secondary street frontage. The private and communal open spaces provided and the poor design of the development results in spaces which are impractical and awkward.

  4. Mr Harding says there is no correlation between the provision of open space as it can be provided over different levels and therefore the extent of ground level space and roof top space is sufficient to provide open space. He disagrees there is a relationship between the open space provision and the bulk and scale of the building.

Amenity

  1. Mr Levine says the proposal, up to 27m deep in plan with double loaded corridors, and one lift serving 54 apartments over seven levels is a building of poor amenity. The amenity deficiencies that relate to open space, cross ventilation and lack of deep soil area result from an excessive gross floor area being accommodated in too large a footprint and require re-design to satisfactorily resolve. He does not consider the amended plans resolve the issues and that there are amenity problems in relation to daylight due to the depth of the building/apartments, particularly to some bedrooms and study areas with ‘snorkel’ windows to bedrooms providing unsatisfactory amenity to at least 10 of the units at the lower levels. The building does not meet the RFDC Rule of Thumb of 18m depth glass line to glass line and the 11 apartments per floor is excessive and results in a building that’s struggling to provide a reasonable level of amenity particularly at the lower levels.

  2. Mr Cadogan says that the bedrooms are only for sleeping and have adequate ventilation with a high level of amenity provided to living areas. Whilst he does not consider the design to be poor, in a perfect building you would not include the ‘snorkel’ arrangement however whilst it is not ideal, it is not unacceptable.

Cross ventilation

  1. The council contends the development does not provide cross ventilation to 80% of the units in accordance with DCP requirements. The applicant relies on chimney vents for cross ventilation whereas the council has not included those units that rely on that means of cross ventilation in its calculations. The applicant says that 79.6% of apartments are cross ventilated whereas the council says that only 24 or 44.4% are.

  2. Mr Cadogan says the rules of thumb in the RFDC only require 60% of units to be naturally cross ventilated. The proposed development exceeds that requirement and whilst not compliant with the DCP is acceptable.

  3. Mr Levine says the excessive footprint of the proposal has resulted in poor amenity for apartments containing spaces with no windows and inadequate daylight and ventilation.

Conclusion and findings

  1. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.

  2. Clause 4.6 is in the following form:

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence……………….

  1. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

  2. Having regard to the evidence and in particular to the written objection prepared, I am satisfied that these tests have been met. This is particularly the case because the agreed position of the experts is that it is appropriate that the development standard for building height is varied and that a higher built form is appropriate for the site. In the circumstances of the case I accept the agreed position of the experts and that expressed by Mr Harding in his written objection, that compliance with the height of buildings development standard would be unreasonable and unnecessary in the circumstances of the case.

  3. Further, having regard to the location of the site and its proximity to the Mercure Hotel I am also satisfied that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.

  4. I must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. The objectives of the B4 zone are detailed above at [17] and in this regard, I accept the evidence of the experts and also that expressed in the written objection that these objectives are met.

  5. The objective of the height of buildings development standard are:

(a) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

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

(c) to require the height of future buildings to have regard to heritage sites and their settings,

(d) to ensure the preservation of historic views,

(e) to reinforce and respect the existing character and scale of low density residential areas,

(f) to maintain satisfactory sky exposure and daylight to existing buildings within commercial centres, to the sides and rear of tower forms and to key areas of the public domain, including parks, streets and lanes.

  1. It is apparent from the evidence that it is appropriate to vary the building height in the circumstances of the case and that this would satisfy the objectives of the development standard, particularly in terms of heritage view corridors that would not be impacted. The experts agree that the development would minimise disruption of views and that the amended plans address privacy issues. I am also satisfied that the impacts on solar access to the adjoining Bowling Club site would be minimised through the slimmer tower design of the proposal and that increasing the building height would respect the existing character and scale of low density residential areas in the vicinity of the site.

  2. There are no matters of significance for State or regional environmental planning, and, based on the evidence, no public benefit of maintaining the development standard in the circumstances of the case.

  3. For these reasons, I am satisfied that it the provisions of clause 4.6 are met and that the site can support a higher building.

  4. Having found this particular precondition to consent is met, it is necessary to consider those matters proscribed in s79C of the Environmental Planning and Assessment Act 1979 (EP&AAct). In particular, whether the bulk and scale, character and amenity of the proposed development is appropriate for the site, whether the off-site impacts of the development are acceptable and whether the proposed shelter in place is an appropriate strategy during a flood event.

  5. It is common ground between the experts that the proposed risks to property on the site are appropriately managed through the proposed floor levels, basement floodgate, flood doors and other measures to seal the building from the ingress of flood waters.

  6. The evidence of the flooding experts is that shelter in place is, as a general principle, accepted practice. The difference between the two is whether there is a need for a strategic flood risk management assessment for the Clay Cliff Creek floodplain. The council has accepted shelter in place at other locations within the floodplain however, in accordance with the evidence and in particular, Attachment N of Exhibit 6, access to those sites was not through a High Risk Precinct whereas, in this case it is. I consider that this is an important distinguishing feature. For these reasons, I am not satisfied that the development is compatible with the flood hazard of the land, and that it may result in unsustainable social and economic costs to the community as a consequence of flooding. Accordingly, pursuant to the provisions of clause 6.3(3) of the LEP consent cannot be granted.

  7. I accept the uncontested evidence of Mr Worrad that the impacts of overshadowing on the adjacent bowling greens would not be a reason to refuse consent.

  8. Whilst I agree that the site is capable of supporting a building that exceeds the building height development standard, I am not satisfied that the bulk, scale and amenity of the development is appropriate for the site. That is because of the width of the elliptical element of the building, the massing of that element at the Tramway Street frontage of the site and the poor layout of the apartments and the lack of internal amenity. I accept Mr Levine’s evidence that the contextual characteristics of the site are not comparable with No 125-129. It is not immediately adjacent to the high Mercure Hotel building on a visible corner site, and has no direct relationship with No 125-129. Therefore it is not considered necessary or appropriate that a building on the site should act as a transition between the existing hotel and the lower permissible heights in the adjacent context. I agree that at this frontage, the lack of building transition would lead to visual confusion of the built form associated with the adjoining zones which anticipates lower scale buildings.

  9. The building is too big in its context and I accept the council’s expert evidence that the bulk and scale of the building is unsatisfactory.

  10. The elliptical element, which has a width of up to 27m in plan with double loaded corridors, and one lift serving 54 apartments over seven levels is a building of poor amenity. I accept Mr Levine’s evidence that the building proposed is excessive in terms of gross floor area being accommodated in too large a footprint and requires a re-design to satisfactorily resolve those amenity and locational issues. The proposal has an inferior level of internal amenity and is inconsistent with Principle 6 of SEPP65.

  11. For these reasons consent should not be granted.

  12. The Orders of the Court are:

  1. The applicant is granted leave to rely on the amended plans, Exhibit K, subject to the payment of the council’s cost thrown away as agreed or assessed pursuant to the provisions of Section 97B of the Environmental Planning and Assessment Act 1979.

  2. The appeal is dismissed.

  3. Development Application No 86/2015 seeking consent to demolish structures, tree removal and construct a seven storey mixed use building with basement car parking at 32 Tramway Avenue, Parramatta is refused consent.

  4. The exhibits, other than exhibits A, K, and 2 can be returned.

_____________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 16 March 2016

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

3